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1
FULL MAINTENANCE RENTAL AGREEMENT
1.18.
between
MIGOWAVE (PROPRIETARY) LIMITED T/A ARIVA
(registration number 2011/009222/07)
1.19.
(“Ariva”)
and
THE PERSON SPECIFIED IN PARAGRAPH 1 OF THE
SCHEDULE
(“the renter”)
1.20.
1.21.
1.
1.1.
1.2.
1.3.
1.4.
1.5.
1.6.
1.7.
1.8.
1.9.
1.10.
1.11.
1.12.
1.13.
1.14.
1.15.
1.16.
1.17.
DEFINITIONS AND INTERPRETATION
“accessory” means any item which is not included as
a standard item in the published retail price of the
vehicle and which is an additional item to the vehicle;
“agreement” means this Full Maintenance Rental
agreement and the attached Schedule;
“authorised
service
provider”
means
any
dealer/supplier appointed by the manufacturer and/or
importer of the vehicle and who has been approved by
Ariva to service and/or repair the vehicle;
“Auto Dealer’s Digest” means the monthly publication
published by Mead & McGrouther (Proprietary) Limited
detailing information used in determining the value of
new and used motor vehicles;
“business day” means any day other than a Saturday,
Sunday and/or a public holiday as gazetted by the
government of the RSA from time to time;
“commencement date” means the date specified in
item 2 of the Schedule;
"Consumer Protection Act" means the Consumer
Protection Act, No. 68 of 2008, as amended, and the
regulations promulgated thereunder;
“delivery address” means the address specified in
item 4 of the Schedule at which the renter will take
delivery of the vehicle on the commencement date;
"delivery acceptance form" means the delivery
acceptance form issued by Ariva to be signed by the
renter on delivery of the vehicle , and which will reflect
inter alia, the date of delivery of the vehicle;
“deposit” means the amount specified in item 6 of the
Schedule, payable by the renter to Ariva in terms of
clause 6;
"distance travelled" means the distance travelled by
the vehicle as determined in terms of clause 10 of this
agreement;
“excess kilometre charge” means the rand amount
payable by the renter in respect of the excess
kilometres, calculated by multiplying the excess
kilometres by the excess kilometre fee;
“excess kilometres” means the number of kilometres
travelled by the vehicle in excess of the maximum
kilometres;
“excess kilometre fee” means the fee specified in
item 7 of the Schedule;
“first rental payment date” means the date specified
in item 11 of the Schedule;
“manufacturer” means the manufacturer of the
vehicle;
“manufacturer’s handbook” means the booklet
provided by the manufacturer of the vehicle, which
contains instructions for, amongst other things, the
use, care and maintenance of the vehicle;
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Date: 12 July 2011
1.22.
1.23.
1.24.
1.25.
1.26.
1.27.
1.28.
1.29.
1.30.
1.31.
1.32.
1.33.
1.34.
1.35.
1.36.
1.37.
“maximum kilometres” means the maximum distance
which the vehicle may travel in each period of 6 months
of the rental period and which distance is specified in
item 8 of the Schedule;
“nominated persons” means the other persons
identified in item 9 of the Schedule, who are, in addition
to the renter, nominated by the renter who may use
and/or be in control of the vehicle and whose actions
shall be deemed to be attributable to the renter for the
purposes of this agreement;
“parties” means Ariva and the renter, and “party”
means either of them as the context indicates;
“prorated rental” means the rental payable by the
renter to Ariva for the period from the commencement
date to the first rental payment date as provided for in
clause 5.2 (being a pro rata portion of the monthly
rental);
"protected consumer" means a consumer as defined
in section 1 of the Consumer Protection Act and whose
annual turnover or assets value falls below the
threshold contemplated in section 5 of the Consumer
Protection Act and to whom the Consumer Protection
Act applies;
“rental” means the monthly rental amount specified in
item 10 of the Schedule payable by the renter to Ariva
in respect of the rental of the vehicle;
“rental payment day” means the day of each month
specified in item 12 of the Schedule, being the day on
which each rental shall be payable;
“rental period” means the term of this agreement
referred to in item 13 of the Schedule;
“return date” means the date specified in item 3 of the
Schedule, being the date on which the vehicle must be
returned to Ariva at the end of the rental period, subject
to clause 17.1;
"replacement value" means, from time to time, the
retail value of the vehicle specified in the then current
publication of the Auto Dealer's Digest, which value
shall be final and binding on the parties;
“return address” means the address specified in item
5 of the Schedule at which the renter must return the
vehicle on the return date;
“RSA” means the Republic of South Africa;
“SAVRALA” means the South Africa Vehicle Rental
and Leasing Association;
“SAVRALA Guide” means the SAVRALA Guide
annexed hereto marked Annexure “A”;
“Schedule” means the schedule annexed to this
agreement;
“service” means the scheduled service and
maintenance that is required to be effected to the
vehicle in accordance with the requirements of the
manufacturer, and the term “serviced” shall have a
corresponding meaning;
“termination date” means the date of the termination
of this agreement for any reason whatsoever;
“tracker" means the device installed in the vehicle by
Ariva to measure the distance travelled by the vehicle
and to track the vehicle's location;
“vehicle” means the vehicle referred to in item 14 of
the Schedule, including the keys, tools and spare tyre
of the vehicle and all accessories supplied with the
vehicle;
words used on the face hereof shall have the same
meanings in this agreement;
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1.38.
1.39.
1.40.
2.
2.1.
2.2.
unless a contrary intention clearly appears, a reference
to the singular shall include the plural, to one gender
shall include the other genders and to natural persons
shall include juristic persons, all vice versa;
any reference to any statute or statutory provision is a
reference to that statute or statutory provision as at the
date of signature of this agreement and as amended or
re-enacted from time to time;
where any number of days is prescribed in this
agreement, then that number shall be determined
exclusively of the first day and inclusively of the last
day, unless the last day falls on a day which is not a
business day, in which case the last day shall be the
next business day thereafter.
CONDITION PRECEDENT
This agreement is conditional on the renter paying the
deposit and the prorated rental to Ariva.
Should the renter fail to pay the deposit and the
prorated rental, the provisions of this agreement shall
lapse and be of no further force or effect and neither
party shall have any claim against the other party
arising out of or in connection with this agreement.
3.
RENTAL OF THE VEHICLE
Ariva rents the vehicle to the renter, who hires same,
on the terms and conditions set out in this agreement.
4.
DURATION
This agreement shall subject to clauses 5.2 and clause
6.1, commence on the commencement date and shall
remain in force for the rental period, unless terminated
earlier in terms of this agreement
The renter agrees to the rental period and that the said
period is reasonable, taking into consideration the
advantage to the renter of a rental period of the stated
duration set out in clause 4.1 which enables Ariva to
charge a lower rental than would otherwise be the case
if the rental period was of a shorter duration.
4.1.
4.2.
5.
5.1.
5.2.
5.3.
5.4.
5.5.
RENTAL AND OTHER PAYMENTS
Subject to clause 5.2, the first rental shall be paid on
the first rental payment date and subsequent rentals on
the rental payment day of each succeeding month of
the rental period.
The prorated rental shall be payable into Ariva’s bank
account specified in item 15 of the Schedule on the
same date as the deposit as provided in clause 6.1 by
way of –
5.2.1. electronic funds transfer; or
5.2.2. direct deposit.
Save as provided for in clause 5.2, all rentals and other
amounts payable in terms of this agreement shall be
paid without deduction or set off by way of debit order
into Ariva's bank account specified in item 15 of the
Schedule, unless expressly otherwise authorised by
Ariva in writing.
Any revocation by the renter of a debit order
authorisation shall constitute a material breach of this
agreement.
In addition to the rental and subject to clause 5.11,
the renter shall irrespective of the cause of any
accident damage to the vehicle be liable to pay to Ariva
an amount equal to the lesser of R2 400 and the actual
Version: 1.04
Date: 12 July 2011
5.6.
5.7.
5.8.
5.9.
5.10.
5.11.
6.
6.1.
6.2.
6.3.
6.4.
6.5.
cost of repair (but subject to clause 5.8) of such
accident damage.
Subject to clause 5.8, until such time as the cost of
repairs in terms of clause 5.5 has been determined, the
renter shall be obliged, on a provisional basis, to pay to
Ariva, the amount of R2 400 referred to in clause 5.5 by
way of 6 monthly instalments of R400 each, the first of
which shall be paid on the next rental payment date
immediately following the month in which the accident
damage has occurred, and subsequent instalments on
the 5 (five) rental payment dates thereafter.
Once the total repair cost has been determined, if it is
less than R2 400 and if the aggregate of the payments
made by the renter in terms of clause 5.6 as at the date
of such determination 5.7.1. exceed the cost of repairs, the excess amount
shall be refunded to the renter within 7 days;
and
5.7.2. are less than the cost of repair, the number of
remaining instalments payable by the renter in
terms of clause 5.6 shall be appropriately
adjusted.
Subject to clause 5.11, in the case of accident damage
which results in the vehicle being written off, the renter
shall pay Ariva the sum of R2 400 within 10 days of
receipt of notification from Ariva that it has decided to
write off the vehicle , which decision shall be in the sole
discretion of Ariva.
Subject to clause 9, in the event of the theft of the
vehicle and its non-recovery within 14 days, the renter
shall be liable to pay to Ariva the sum of R5 000 on
receipt of demand for such payment.
In the event that any instalments payable in terms of
clause 5.6 is not paid on due date, the total balance of
the amount payable in terms thereof, shall forthwith
become due and payable, without prejudice to any
other rights that Ariva may have in terms of clause 19
arising from such breach.
The provisions of this clause 5 are in addition to,
and shall not detract from Ariva’s rights in terms of
clauses 9.4, 9.6 and 11.
DEPOSIT
The renter shall pay the deposit to Ariva within 9 days
of the date of the signing of this agreement by the
renter.
Until such time as the deposit is received by Ariva, the
vehicle will not be delivered to the renter,
notwithstanding any other rights which Ariva may have
arising from the renter’s failure to pay the deposit.
The deposit shall earn interest at the same rate as a
30 day fixed deposit of such amount held with Standard
Bank Limited, from time to time.
Ariva shall be entitled at any time during the rental
period and/or upon termination of this agreement to
deduct from the deposit and interest earned thereon,
any amounts payable by the renter in terms of this
agreement which are not paid when due. The deposit,
together with interest earned thereon, net of any such
deductions, shall be refunded by Ariva to the renter
within 30 days of the termination date.
In the event that the deposit has been fully or partially
utilised by Ariva in accordance with the provisions of
this agreement, the renter shall, if called upon to do so
by Ariva, pay to Ariva such amount as may be required
3
to reinstate the deposit to the amount specified in item
6 of the Schedule.
7.
7.1.
7.2.
7.3.
7.4.
7.5.
7.6.
7.7.
8.
8.1.
9.
9.1.
DELIVERY AND RETURN
Subject to clause 6.1 and clause 5.2, the renter shall
take delivery of the vehicle on the commencement date
at the delivery address, after signing the delivery
acceptance form.
By the renter’s signature of the delivery acceptance
form, the renter shall be deemed to have
acknowledged that the renter has inspected the
vehicle and that unless otherwise recorded on the
delivery acceptance form, the vehicle was delivered
by Ariva to the renter free of any damage of
whatsoever nature and in good order, condition
and repair.
By no later than 12h00 on the return date the renter
shall, return the vehicle to Ariva at the return address.
The renter shall park the vehicle in the designated
parking bay, lock the vehicle, hand the keys to Ariva’s
authorised representative and complete a vehicle
return form with Ariva’s authorised representative.
The vehicle shall be returned by the renter to Ariva
in the same condition as it was when delivered by
Ariva to the renter as recorded in clause 7.2, fair
wear and tear excepted in accordance with the
SAVRALA Guide.
Failure to return the vehicle on the return date shall
constitute illegal possession by the renter and Ariva
may take whatever legal steps may be necessary to
procure the return of the vehicle at the cost and
expense of the renter.
The renter shall be liable for the following costs in
respect of, or relating to the return of the vehicle –
7.6.1. all and any costs, losses or damages incurred
by Ariva in procuring the return of the vehicle
from the renter;
7.6.2. all damages or losses suffered by Ariva due to
the renter’s failure to return the vehicle on the
return date;
7.6.3. the costs incurred by Ariva to have the vehicle
repaired and/or restored in order to reinstate
the vehicle to the condition referred to in clause
7.3.
The costs referred to in clause 7.6 shall be payable by
the renter to Ariva on demand.
INDEPENDENT COSTS
Ariva in no way assumes responsibility or liability for,
and the renter shall be responsible for and shall pay
the following –
8.1.1. all fines, taxes, charges, duties, levies and tolls
in respect of or incurred by the renter and
and/or arising out of the rental and/or use of the
vehicle by the renter and/or any nominated
persons;
8.1.2. all fines and court costs payable for any
violation of any law by the renter and/or
nominated persons relating to the use of the
vehicle by the renter and/or any nominated
persons;
VEHICLE DAMAGE/THEFT
In case of an accident involving the vehicle or theft of
the vehicle, the renter shall -
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Date: 12 July 2011
within 24 hours, or such further period as is
reasonable in the circumstances, report the
incident to Ariva and the police and obtain a
police case number;
9.1.2. within 24 hours, or such further period as is
reasonable in the circumstances, complete all
documents required by Ariva and its insurers;
9.1.3. furnish all assistance required by Ariva and its
insurers to deal with any matters arising from
the incident.
In the case of an accident involving the vehicle, the
renter shall –
9.2.1. ensure that the vehicle is towed only by the
roadside assistance company nominated by
Ariva and;
9.2.2. permit any representative of Ariva to inspect the
vehicle at any reasonable time.
Save where the vehicle is to be written off, Ariva shall,
subject to the provisions of clause 5.5, at its cost and
expense, and through an authorised service provider
nominated by it, attend to the repair of any accident
damage caused to the vehicle as expeditiously as
possible in the circumstances.
Notwithstanding that the renter is deprived of the use
and possession of the vehicle in the circumstances
referred to in clause 9.1, 9.4.1. the renter shall continue to be liable for and
shall make payment of the rental due in terms
of this agreement to Ariva, provided that and
subject to the renter not being in breach of any
of his obligations in terms of this agreement,
and in particular the obligations set out in
clause 11, if the deprivation of use is in excess
of 14 days, the renter shall on the rental
payment date immediately following the return
of the vehicle to the renter, be refunded an
amount equal to the rental paid by the renter for
the period which is in excess of the
aforementioned 14 day period, determined on a
pro rata basis;
9.4.2. the renter shall have no claim for a temporary
replacement or for a substitute vehicle nor shall
the renter be entitled to withhold any payment
on the due date for payment thereof in terms of
this agreement.
In the event of theft, major repair, or the vehicle, in the
discretion of Ariva being uneconomical to repair, Ariva
shall have the right to substitute another vehicle of
substantially similar (but not necessarily the same)
make, model, specification, and standard, and such
substitute vehicle shall be subject to the terms and
conditions of this agreement and the renter shall have
the same rights and obligations in respect of that
substitute vehicle.
Notwithstanding clause 9.4.1, in the event of any
damage caused to the vehicle or any loss of the vehicle
due to the renter’s breach of this agreement or any law
or as a result of any other unlawful conduct on the part
of the renter or a nominated person, then the renter
shall be liable to pay to Ariva an amount equal to the
total cost of repairs to the vehicle, where the vehicle is
damaged and repaired, or the replacement value of the
vehicle in the event that the vehicle is written-off or
stolen, as the case may be.
9.1.1.
9.2.
9.3.
9.4.
9.5.
9.6.
4
Without prejudice to Ariva’s rights in terms of
clause 9.6 and notwithstanding anything to the contrary
contained in this agreement –
9.7.1. should the vehicle be damaged to an extent
which, in Ariva’s discretion, makes it
uneconomical to repair; or
9.7.2. the vehicle is stolen, and –
9.7.2.1.
remains
unrecovered for
more than 21
days from the
date of
such
theft; or
9.7.2.2.
is
recovered
within 21 days of
such theft but is
damaged to an
extent which, in
Ariva’s discretion,
makes
it
uneconomical to
repair,
Ariva may in its discretion, either elect to terminate this
agreement or to provide a substitute vehicle as
contemplated in clause 9.5.
9.8.
Should the vehicle be involved in an accident, be
stolen, or be damaged to an extent which makes it
uneconomical to repair (“the incident”), and should
Ariva recover in full its damages in respect of the
incident from a third party, Ariva shall refund to the
renter all amounts paid by the renter to Ariva in respect
of the incident in terms of this agreement.
9.7.
10.
10.1.
10.2.
10.3.
10.4.
11.
11.1.
MAXIMUM KILOMETRES
The renter undertakes that the vehicle will not exceed
the maximum kilometres and authorises Ariva to audit
the number of kilometres travelled by the vehicle in
each six month period of the rental period.
The tracker installed in the vehicle shall be used to
determine the distance travelled by the vehicle during
each period referred to in clause 10.1 and during the
entire rental period. The information furnished by the
tracker shall be conclusive proof of the distance
travelled and shall be binding on the parties, save in
circumstances of manifest error.
Should the tracker fail to register kilometres driven for
any reason whatsoever, Ariva shall procure that it is
repaired as soon as is reasonably possible at Ariva’s
cost. The distance travelled during the period of such
failure shall be determined by the odometer of the
vehicle.
Should the vehicle exceed the maximum kilometres,
the renter shall, in addition to the rental, be liable for,
and shall pay the excess kilometre charge, which
amount shall be paid in 6 equal instalments, the first of
which shall be paid on the rental payment date
immediately following the date on which Ariva has
advised the renter in writing of the amount of the
excess kilometre charge and subsequent instalments
on each of the 5 succeeding rental payment dates.
RENTER’S OBLIGATIONS
During the rental period, all risk in and to the vehicle
shall be with the renter notwithstanding the use of the
vehicle by any nominated persons.
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Date: 12 July 2011
11.2.
The renter shall not 11.2.1. hire or lend the vehicle to anyone;
11.2.2. permit the vehicle or the keys of the vehicle to
be in the possession or control of anyone other
than the renter or the nominated persons;
11.2.3. cause or permit the vehicle to be driven
unlawfully or to be used for any unlawful
purpose or for a purpose for which it was not
designed or in such a way as to increase the
risk of it being damaged or stolen;
11.2.4. cause or permit the vehicle to carry any
passengers or goods for reward or for racing or
as an armed response vehicle;
11.2.5. permit the vehicle to be used for any other
purpose than transportation of the renter, the
nominated persons and the renter's family and
friends;
11.2.6. cause or permit the vehicle to be exposed to
the risk of damage in or by any civil or public
disturbance or unrest;
11.2.7. cause or permit the vehicle to be towed,
repaired or serviced save with the prior
authorisation of Ariva;
11.2.8. cause or permit the odometer fitted in the
vehicle and/or the tracker to be tampered with;
11.2.9. cause or permit the vehicle to be driven on any
road not suitable for the vehicle;
11.2.10. cause or permit the vehicle to be taken across a
South African border;
11.2.11. cause or permit the vehicle to participate in any
motor sport, pace making, rallying, reliability
trials or other similar activities;
11.2.12. cause or permit the vehicle to be loaded in
excess of the load or seating capacity specified
by the manufacturer or permitted by law;
11.2.13. drive the vehicle or permit the vehicle to be
driven by any nominated person, whilst the
driver is not holding a valid and current full
driving licence to operate the vehicle which
licence has not been endorsed for any reason;
11.2.14. drive the vehicle or permit the vehicle to be
driven by any nominated person, at any time
whilst the driver is under the influence of
intoxicating liquor or drugs.
11.2.15. drive the vehicle or permit the vehicle to be
driven whist it is in an un-roadworthy condition
or in a condition which is liable to cause danger
to any person or property, or in any manner
constituting a breach of any statutory or other
law, or use the vehicle for the transportation of
hazardous materials, including, but not limited
to flammables, combustibles, acids, caustics,
explosives, or other dangerous materials as
defined by regulations promulgated by any
authority in the RSA, unless otherwise agreed
in writing by Ariva; and
11.2.16. cause or permit any paint, mark, identification
or advertising to be used or displayed on the
vehicle, or any alteration or modification being
made to or added on to the vehicle, without
Ariva’s prior written approval;
11.2.17. cause or permit the vehicle to be used or driven
in a manner which results in the vehicle having
to undergo repairs and/or replacement of parts
which would not normally be required to be
5
11.3.
11.4.
11.5.
12.
12.1.
12.2.
undertaken if the vehicle was used in a
reasonable and responsible manner;
11.2.18. abandon the vehicle;
11.2.19. permit anyone other than the renter and the
nominated persons to drive or be in possession
of the vehicle.
The renter shall take all precautions to protect the
vehicle from theft and damage and shall lock and
immobilize the vehicle and activate the burglar alarm
whenever the vehicle is not in use.
If the keys of the vehicle are lost or locked in the
vehicle, the renter shall report the matter to Ariva and
the keys will be retrieved or replaced by Ariva at the
renter’s cost.
The renter shall furthermore ensure compliance with all
the renter’s obligations in terms of clause 12 below.
SERVICE AND MAINTENANCE
Ariva shall procure that the vehicle will be covered by a
maintenance plan for the duration of the rental period,
which maintenance plan shall cover the costs relating
to the service and maintenance of the vehicle as set
out in clause 12.4, subject however to the provisions of
clauses 12.2 and 12.5.
The renter shall –
12.2.1. comply with the manufacturer’s vehicle
handbook in regard to the use, care and
maintenance of the vehicle;
12.2.2. ensure that the vehicle is maintained in good
repair and condition (including the normal
service and oil changes as recommended by
the manufacturer) by arranging for the vehicle
to be delivered to an authorised service
provider for the servicing of the vehicle at the
required intervals and for any repairs required
to the vehicle;
12.2.3. report to the authorised service provider any
defect which may be the subject of a current or
future vehicle warranty claim;
12.2.4. not make or permit any change or modification
or addition to be made to the vehicle or use it
for towing without the prior written consent of
Ariva;
12.2.5. when any maintenance work is complete, check
and sign all invoices and ensure that they are
forwarded to Ariva;
12.2.6. use an authorised service provider for all
servicing, maintenance and repairs to the
vehicle, unless otherwise authorised by Ariva in
writing;
12.2.7. provide reasonable assistance to the authorised
service provider to enable the efficient provision
of the servicing of the vehicle;
12.2.8. be responsible for the weekly checking of oil,
battery, brake and clutch fluids, water, tyre
condition and pressures and all other items
which require periodical checking for the proper
functioning of the vehicle;
12.2.9. provide (at the renter’s cost) all fuel and oil
topping up required for the proper operation of
the vehicle and shall only use such fuel and oil
as specified by the manufacturer;
12.2.10. be entitled to permit any emergency repairs of
the vehicle which may be required in the
circumstances, on the basis that Ariva shall pay
Version: 1.04
Date: 12 July 2011
the reasonable cost of such repairs against
production of proper invoices therefor and a
written explanation of the circumstances under
which the expenses were incurred, provided
however that such repairs have not been
caused as a result of a breach of any of the
terms of this agreement by the renter;
12.2.11. procure that any modifications which are
required to be made to the vehicle by law, are
carried out by an authorised service provider.
12.3.
The renter shall not perform or permit any service,
repairs or adjustments to be performed in respect of
the vehicle, except as provided in terms of clause
12.2.2, provided that the renter shall, after obtaining
written authorisation from Ariva, be entitled to repair or
replace worn or damaged tyres, the use of which will
render the vehicle unsafe or will contravene road traffic
regulations, provided that the renter shall pay for all
tyres repaired or replaced during the rental period if the
repair or replacement is not, in Ariva’s discretion,
covered by clause 12.4.3.
12.4.
Ariva shall subject to clause 12.3, pay the following
amounts in respect of any service and/or repairs
referred to in clause 12.2.2 12.4.1. the cost of servicing the vehicle which, without
limiting the generality thereof, shall include the
supply of engine oil, transmission oil and
service products at the times specified in the
service booklet provided by the manufacturer;
12.4.2. any preventative treatment, checks or other
work which Ariva, in its reasonable discretion,
deems necessary; and
12.4.3. the replacement of tyres as and when required
as a result of normal wear and tear, provided
that the tyres have travelled a distance of more
than 50 000 kilometres.
12.5.
Notwithstanding clause 12.4, Ariva shall NOT be
liable for any of the costs incurred in respect of the
matters specified below, all of which shall be for
the renter’s account, and as such the renter shall
be responsible to pay for these costs if and when
they arise 12.5.1. repair of any damage to the vehicle caused by one or
more of the following 12.5.2. the use in the vehicle of oils, fuel, and other
service products not approved by the
manufacturer or Ariva;
12.5.3. the failure to have the vehicle serviced
timeously
in
accordance
with
the
manufacturer’s specifications or requirements;
12.5.4. the failure to carry out normal preventative
maintenance in respect of the vehicle;
12.5.5. the neglect, misuse, abuse or improper
handling of the vehicle or any of its parts;
12.5.6. service or repair of the vehicle by any person
other than an authorised service provider,
unless expressly permitted in terms of this
agreement; and
12.5.7. repair
of
damaged
glass,
including
windscreens, lenses, sealed beams and
mirrors;
12.5.8. damage to tyres (including punctures) excluding
fair wear and tear;
12.5.9. repair to or maintenance of any body work or
equipment, accessories or fitments, which were
6
12.6.
12.7.
12.8.
13.
13.1.
13.2.
not fitted to the vehicle by the manufacturer
and/or authorised service provider, or with
Ariva’s consent, or which have been altered
without Ariva’s written permission;
12.5.10. costs of and incidental to any repairs or
maintenance which are occasioned or partly
occasioned, wholly or partially, by the renter’s
failure to comply with any obligation in terms of
this agreement;
12.5.11. all fuel consumed by the vehicle;
12.5.12. all topping-up of lubricants between services;
12.5.13. the replacement of any part or item missing
from the vehicle;
12.5.14. charges resulting from abuse, vandalism, any
form of civil or military upheaval, strife or
disturbance, whether politically instigated or
otherwise and any acts of God;
12.5.15. any other maintenance and repair which is
carried out otherwise than in accordance with
this agreement;
12.5.16. the repair or maintenance of any accessory,
modification or equipment which was not fitted
to the vehicle when it was originally
manufactured; and
12.5.17. the repair of any work required as a result of the
renter failing to comply with the terms of this
agreement or with the renter's obligations in
terms of the manufacturers handbook.
Should the renter fail to have any repairs and/or
replacements to the vehicle as contemplated in
clause 12.5 attended to, Ariva shall be entitled to have
same attended to on behalf of the renter, in which
event any costs so incurred by Ariva shall be payable
by the renter to Ariva upon demand.
If repairs are required to be effected to the vehicle due
to the renter’s abuse/misuse of the vehicle, then, in
addition to the costs of the repair, for which the renter
shall be liable in terms of clause 12.5.5, Ariva shall be
entitled to levy on the renter a reasonable processing
fee. Should the renter dispute any claim of misuse or
abuse, Ariva shall appoint a technical advisor of the
manufacturer or authorised service provider, to
determine the dispute, acting as an expert and not as
an arbitrator, and whose decision, including his
determination regarding his liability for his costs, shall
be final and binding on the parties. In making such
determination the expert shall consider the driver’s
guide and guidelines referred to in the SAVRALA
Guide.
In the event of repeated vehicle malfunction, the
provisions of clause 9.5 shall also apply in regard to the
substitution of another vehicle.
ROAD SIDE ASSISTANCE
The vehicle will be covered by a road side assistance
policy.
“roadside assistance” means road side assistance
service, which will be available at all hours of the day or
night and will include –
13.2.1. jump start service;
13.2.2. key lockout service ;
13.2.3. flat tyre change;
13.2.4. recovery towing service;
13.2.5. towing of vehicles in the event of an accident;
Version: 1.04
Date: 12 July 2011
13.2.6. any other services offered in the roadside
13.3.
14.
14.1.
14.2.
14.3.
14.4.
14.5.
14.6.
assistance manual.
Should the renter require road side assistance the
renter shall phone Ariva’s Road Side Assistance line at
the phone number specified in item 19 of the Schedule.
LICENSING REQUIREMENTS
Ariva shall be responsible for the initial registration and
licensing of the vehicle and Ariva shall retain
possession of the registration document of the vehicle
as the registered titleholder thereof.
The Renter shall be responsible for the annual
licensing of the vehicle.
If the renter does not receive any notice of renewal at
least 14 (fourteen) days prior to the expiry date of the
existing licence, the renter shall advise Ariva thereof in
writing.
Save for gross negligence on the part of Ariva,
Ariva shall not be held liable for any damages,
claims, penalties or fines whatsoever that the
renter may incur in the event that the renter does
not timeously receive the licence disc.
The renter shall be obliged to affix the license disc to
the windscreen of the vehicle prior to the expiry date of
the existing licence and any fines incurred as a result of
not affixing same shall be for the renter’s account.
On the termination of this agreement the renter shall
take all required steps to transfer the licence of the
vehicle from the renter to Ariva. The renter accordingly
hereby authorises Ariva to sign all documents and do
whatever else may be necessary to effect the transfer
of such licence.
15.
OWNERSHIP
Ownership of the vehicle shall at all times remain
vested in Ariva, notwithstanding that the vehicle will be
licenced in the name of the renter in compliance with
the relevant legislation. The renter’s rights in and to
the vehicle are limited to the use and possession
thereof in accordance with the terms of this agreement.
16.
RENEWAL OR CONCLUSION OF A NEW RENTAL
AGREEMENT
Upon expiry of the rental period –
16.1.1. if the renter wishes to continue using the
vehicle, the renter will , if Ariva so elects, be
afforded the right to do so subject to a new
rental agreement in respect of the vehicle being
concluded between the parties on terms and
conditions acceptable to them; or
16.1.2. provided that the renter has timeously observed
all the terms of this agreement, the renter may,
in the discretion of Ariva, be offered the
opportunity to enter into a new rental
agreement
16.1.
17.
17.1.
PROCEDURE
ON
TERMINATION
OF
THE
AGREEMENT
On the termination date, the renter shall return the
vehicle to Ariva at the return address in the same
condition as it was when it was rented to the renter, fair
wear and tear excepted, with all the spare keys, tools,
spare tyre, service booklet and licence documents any
other documents appertaining to the vehicle and all
accessories and sound equipment which were fitted to
7
17.2.
17.3.
17.4.
18.
18.1.
18.2.
19.
19.1.
the vehicle at the commencement date or, where
applicable, during the rental period.
On the termination date, the renter shall pay to Ariva
any amounts owing to Ariva in terms of this agreement,
including all unpaid rentals and any unpaid excess
kilometre charges and any other charges for which the
renter was liable in terms of clause 12.5 and which
remain unpaid.
In the event of any early termination of this agreement
at the election of the renter in terms of
Section 14(2)(b)(i)(bb) of the Consumer Protection Act,
a penalty fee equivalent to 10% of the balance of the
rentals which would have become due and payable in
the future in respect of the remaining rental period as at
the termination date, shall be payable by the renter to
Ariva on demand, in addition to all and any amounts
which may be payable by the renter until the
termination date in terms of this agreement and which
remain unpaid.
All risk of loss or damage to the vehicle shall remain
with the renter until Ariva has issued an
acknowledgement of receipt in respect of the vehicle, it
being specifically agreed that the vehicle shall be
deemed not to have been returned to Ariva if it is left at
Ariva’s premises without an acknowledgement of
receipt having been obtained in respect thereof.
CUSTOMER BONUS
Provided that this agreement has terminated by
effluxion of time and the renter has timeously observed
all the terms of this agreement, Ariva shall grant the
renter a customer bonus as set out below, payable
within 30 days of the termination date –
a cash payment of R1 000; or
a credit of R4 000 in respect of the first rentals payable
by the renter in terms of a new rental agreement, if the
renter wishes to conclude such an agreement, and
such agreement is concluded within 30 days of the
termination date.
BREACH
Subject to the provisions of clause 19.2 should the
renter –
19.1.1. default in the punctual payment of any amount
due in terms of this agreement or breach any
other term of this agreement, and fail to remedy
such default or breach within 4 days of receipt
of written notice advising the renter of the
default and/or breach; or
19.1.2. assign, surrender or attempt to assign or
surrender his estate; or
19.1.3. compromise with his creditors or endeavour or
attempt to do so; or
19.1.4. suffer any default final judgement to be granted
against him, which remains unsatisfied for
7 days; or
19.1.5. abandon the vehicle; or
19.1.6. have made any incorrect or untrue statement or
representation in connection with this
agreement or the renter’s financial affairs; or
19.1.7. permit the vehicle to be seized under any legal
process issued against the renter, Ariva shall
have the right, without prejudice to any other
rights which it may have –
Version: 1.04
Date: 12 July 2011
(a)
19.2.
19.3.
20.
20.1.
20.2.
21.
21.1
21.2.
to claim specific performance and/or
damages; or
(b)
to cancel this agreement, obtain the
immediate return of the vehicle and
claim damages or a penalty equivalent
to 15% of the balance of the rentals
which would have become due and
payable in the future in respect of the
remaining rental period as at the
termination date.
Notwithstanding anything to the contrary contained in
this agreement, in the event that Ariva intends to
exercise its right to cancel this agreement and the
renter is a protected consumer in respect of whom
section 14 of the Consumer Protection Act applies,
then Ariva shall be obliged to give the renter 20
business days written notice calling upon the renter to
remedy a material breach, and in the event that the
renter fails to remedy such material breach within such
period, then Ariva shall be entitled to exercise its right
to cancel this agreement. and obtain the other relief
contemplated in the clause 19.1.7(b)
In the event that legal proceedings are instituted by
Ariva against the renter, the renter shall be liable for all
of the legal costs incurred by Ariva in respect of such
proceedings on the scale as between attorney and own
client .
NOTIFICATION TO LANDLORD
If the vehicle is to be kept on premises that are not
owned by the renter, the renter shall, prior to the
commencement date, inform the landlord of the
premises in writing that the vehicle is owned by Ariva,
and provide Ariva with written confirmation from the
landlord of receipt of the notice, failing which Ariva
shall, without prejudice to any other rights which it may
have, be entitled to inform the landlord.
Upon the signing of this agreement, the renter shall
provide Ariva with the name and address of the
landlord and the renter shall notify Ariva of any change
in that address, as soon as it occurs.
DOMICILIA/ADDRESSES
The parties choose as their respective domicilia citandi
et executandi, the addresses mentioned in this
clause 21, for the service of all notices and processes
in terms of this agreement, provided that either party
may change its domicilium aforesaid by written notice
to the other party with effect from the date of receipt or
deemed receipt of such notice.
21.1.1. Ariva - the address specified in item 15 of the
Schedule
21.1.2. the renter - the address specified in item 16 of
the Schedule
Any notice, order, acceptance, demand or other
communication addressed by either party to this
agreement to the other party at its domicilium in terms
hereof for the time being and sent by prepaid
registered post, shall be deemed to be received by the
addressee on the seventh business day following the
date of posting. This provision shall not be construed
as precluding the utilisation of other methods of
delivery of notices, orders, acceptances, demands and
other communications, including delivery by hand.
8
21.3.
All legal processes shall be regarded as validly served
if served at a party's domicilium.
22.
GOVERNING LAW AND JURISDICTION
This agreement shall be governed by the laws of the
RSA.
The renter hereby consents to the non-exclusive
jurisdiction of the Magistrate’s Court having jurisdiction
over the renter, even if the amount in issue would
otherwise exceed the jurisdiction of such court.
The provisions of clause 22.2 shall not preclude Ariva
from instituting legal proceedings in any other court
which has appropriate jurisdiction.
22.1.
22.2.
22.3.
23.
23.1.
23.2.
23.3.
23.4.
23.5.
GENERAL
This is the entire agreement between the parties and
no variation or cancellation shall be valid unless in
writing and signed by the parties.
A provision of this agreement which is invalid or
unenforceable for any reason shall be severable from
the rest of this agreement and shall not affect the
validity of the remainder of this agreement.
The renter may not transfer the renter’s rights nor
assign the renter's obligations in terms of this
agreement to any other person.
The renter agrees that this agreement is in the
language nominated by the renter.
By the renter’s signature hereto, the renter hereby
authorises Ariva to conduct credit bureau checks or
any other checks required by law on the renter, if
necessary.
SIGNED at
_____________________________
SIGNED at
on
____________________________
_______________________________20____
on
_______________________________20___
_________________________
For
RENTER
MIGOWAVE (PROPRIETARY) LIMITED T/A ARIVA
WHO
BY
HIS
SIGNATURE
HERETO,
ALSO
ACKNOWLEDGES AND CONFIRMS THAT HE HAS
READ AND UNDERSTOOD THIS AGREEMENT AND
THAT HIS ATTENTION HAS BEEN SPECIFICALLY
DIRECTED TO THE PROVISIONS OF CLAUSES 5.11,
7.2, 7.4, 12.5 AND 14.4.
_________________________
SPOUSE (if married in community of property)Pierre
Version: 1.04
Date: 12 July 2011
______________________________________
who is duly authorised thereto