TERMS & CONDITIONS
DEFINITIONS In this AGREEMENT, unless the context indicates otherwise, the following expressions will bear the following meanings: 1.1 “MAKANI”, “OUR”, “US” and “WE” means MAKANI MOTORCYCLE RENTAL AND TOURS (PTY) LTD, trading as MAKANI TOURS; 1.2 “the RENTER”, “YOU” or “YOUR” means the renter of the motorcycle, as indicated in the AGREEMENT and who must be 23 years old or older and who must have held a valid unendorsed driver’s license for a minimum period of 2 years prior to the AGREEMENT; 1.3 “The RIDER” means YOU and/or the rider as indicated in the AGREEMENT and who must be 23 years old or older and who must have held a valid unendorsed driver’s license for the VEHICLE class for a minimum period of 2 years prior to the AGREEMENT; 1.4 “DAY” means a period of 24 hours (or any part thereof) calculated from the time the motorcycle is received by YOU; 1.5 “the MOTORCYCLE” means the MOTORCYCLE(S)/s identified in this AGREEMENT or any other replacement motorcycle provided to YOU by US (including the MOTORCYCLE documents, keys, tyres, tools and accessories supplied with the MOTORCYCLE); 1.6 “the RENTAL PERIOD” means the period between the date when the motorcycle is taken out by YOU and the termination date and time as specified on the AGREEMENT or, if such period is extended, the time and date entered on OUR records as being the date and time when the MOTORCYCLE is returned to US; 1.7 “The OFFICIAL RATES” means OUR rates charged from time to time and/or in terms of the official rates published and amended from time to time, applicable to the MOTORCYCLE rented in terms of this AGREEMENT, and which are available at any of OUR offices; 1.8 “AGREEMENT” means the rental agreement and these terms and conditions; 1.9 “the LIABILITY WAIVERS” means the waivers referred to in clause 5, but which specifically exclude any key replacement and the loss of personal belongings. The LIABILITY WAIVERS are not an insurance policy but provide a basis on which YOUR liability in terms of this AGREEMENT may be reduced; 1.10 References to the singular will include the plural, the male gender will include the female gender, the female gender will include the male gender, and references to persons will include natural and juristic persons. RISK, DELIVERY AND RETURN 2.1 The motorcycle will be at YOUR sole risk from the date and time of delivery of the motorcycle until the motorcycle is returned to US. YOU undertake to return the motorcycle in the same condition that YOU received it, fair wear and tear excepted; 2.2 YOU will return the motorcycle, on the expiry or termination of this AGREEMENT, at YOUR expense to our authorized representative at the collection address recorded in the AGREEMENT. YOU acknowledge that failure to return the motorcycle in terms of this AGREEMENT will constitute a breach of the AGREEMENT and illegal possession by YOU, and WE may report the VEHICLE as stolen and/or repossess the motorcycle wherever same may be found and from whomsoever is in possession thereof; 2.3 When YOU or any person nominated by YOU return the motorcycle to any branch of MAKANI, YOU will: 2.3.1 Ensure that the motorcycle is properly locked and secure; 2.3.2 Hand the keys of the motorcycle to an authorized representative of MAKANI; 2.3.3 Report any damage to the motorcycle while in your possession. 2.4 The sole risk of loss or damage to the motorcycle will remain vested in YOU until such time as WE have recorded the return of the motorcycle. WARRANTIES BY YOU YOU warrant that: 3.1 All information given by YOU to US is true and correct; 3.2 The rider holds a valid unendorsed appropriate driver’s license for the motorcycle, and has the relevant skill, knowledge and experience to operate and drive the motorcycle; 3.3 The rider will not drive or otherwise operate the motorcycle under the influence of alcohol or any other central nervous system stimulant; 3.4 The rider is not physically prevented from operating the motorcycle safely; 3.5 No person other than the rider will drive or otherwise operate the motorcycle; 3.6 The rider will lock the motorcycle and activate any burglar alarm or protection system installed in the motorcycle when same is not in use and ensures that the keys of the motorcycle are properly controlled; 3.7 the motorcycle will not be used or driven for the conveyance of persons or property for reward, in contravention of or in breach of any law, in any race, speed test or contest, or on roads not properly constructed; 3.8 The motorcycle will not be used or driven in any way which would constitute a breach of any of the provisions of this AGREEMENT; 3.9 YOU and the rider will at all times display an absolute duty of care towards MAKANI in respect of the motorcycle, and YOU will ensure that the motorcycle will only be used on suitable roads and conditions in accordance with the type of motorcycle hereby rented; 3.10 YOU and the rider will not take the motorcycle into any area or on any road where there is a risk that the motorcycle may be damaged, stolen or lost through civil disturbance, riot or any act of political unrest; 3.11 The motorcycle will not be taken outside the Republic of South Africa, except with OUR prior written permission; 3.12 The rider will at all times comply with the traffic laws of the Republic of South Africa, as well as with any traffic laws within the local jurisdictions in which the motorcycle will be operated. PAYMENTS 4.1 YOU agree to pay US: 4.1.1 The motorcycle rental rates and other charges as set out in the AGREEMENT and/or in terms of our OFFICIAL RATES, whichever may be applicable; 4.1.2 The cost of fuel supplied for the motorcycle by US which cost will be calculated upon return of the motorcycle. If the motorcycle is delivered to, or collected from YOU, YOU will be charged for fuel used from the time it leaves the MAKANI office to the time it is returned to the MAKANI office; 4.1.3 All fines, taxes, charges, levies, legal costs and tolls, including e-tolls, payable by US to any third party arising out of YOUR use of the motorcycle; 4.1.4 All and any costs, including but not limited to, one-way fees, towing charges and losses or damages incurred by US in procuring the return of the motorcycle to the collection address described above, or such other location as determined by US; 4.1.5 In the event that the motorcycle is not returned on the return date, all amounts that would have been payable by YOU in terms of this AGREEMENT if the RENTAL PERIOD had been validly extended to the actual date of return of the motorcycle to US; 4.1.6 All costs for which YOU are liable, incurred by US in repairing any damage of any nature whatsoever to the motorcycle and any loss or damages suffered by US as a result of theft, fire or any other cause whatsoever; 4.1.7 Such accident administration and/or traffic fine handling fees that may be levied by US. 4.2 If WE have agreed to payment from YOU by credit or charge card, YOUR signature will constitute authority for the issuer of the card to debit YOU with the total amount owing, inclusive of all costs and charges of whatsoever nature, arising in terms of this AGREEMENT. 4.3 YOU will pay all amounts payable by YOU under this AGREEMENT to US, on demand. If any payment is not made on its due date, then WE may, without prejudice to any of OUR rights, charge interest on the amount due at the maximum rate permissible by law. LIABILITY WAIVERS 5.1 A damages deposit is required, and such a LIABILITY WAIVER is included in the OFFICIAL RATES recorded in clause 4.1.1. 5.2 In such event, YOUR liability in terms of clause 2.1 will not exceed the amount stated in the AGREEMENT as the RENTER’s responsibility, unless one or more of the exclusions in clause 5.3 is applicable. 5.3 The LIABILITY WAIVERS do not cover loss of, or damage to the VEHICLE in the following circumstances, and YOU will be liable for all such loss or damage: 5.3.1 Where YOU or the rider are in breach of this AGREEMENT; 5.3.2 Where damage or loss is caused by rider negligence; 5.3.3 Where damage or loss is sustained in an accident not caused by physical contact with another vehicle, person, animal or object; 5.3.4 Where damage is caused by YOUR failure to ensure that the motorcycle’s required lubricant levels are maintained; 5.3.5 Where damage or loss is caused by pot holes, sand or travelling on gravel or dirt roads; 5.3.6 In respect of personal belongings, key replacement, towing fees and claim administration fees; 5.3.7 Where damage or loss is caused while the rider is in breach of laws and ordinances applicable in the Republic of South Africa; 5.3.8 Where damage occurs to tires, including but not limited to, punctures; 5.4 YOU may not decline the LIABILITY WAIVERS offered by US. TERMINATION 6.1 WE will be entitled to terminate this AGREEMENT if YOU and/or the rider commit any breach of this AGREEMENT. WE will then be entitled to the immediate return of the motorcycle, and furthermore any amount then and there owing by YOU to US will become immediately due and payable. 6.2 Both YOUR and OUR rights and obligations under this AGREEMENT will continue to be in full force and effect until such time as the motorcycle has been returned to US in terms of this AGREEMENT and YOU have complied with all YOUR obligations in terms hereof. INDEMNITY 7.1 Save as is provided for in law and provided that there was no negligence on OUR part, WE will not be liable for any damage and/or injury and/or death arising out of any defect in and/or mechanical failure of the motorcycle, nor for any loss or damages to any property transported in or left in the motorcycle, nor for any damages, injury, death, consequential loss, loss of profits, or any other damages which the RENTER or the rider or any person transported by the motorcycle may suffer arising out of this AGREEMENT. 7.2 WE will not be liable for delays and/or lost rental time due to motorcycle tyre punctures and/or a flat motorcycle battery. RESPONSIBILITY AFTER LOSS OR DAMAGE TO MOTORCYCLE If the motorcycle is involved in any accident or collision, or is lost or stolen, or is involved in any incident, which could prejudice OUR rights, YOU and/or the rider will take all such steps to safeguard OUR interests, including, but not limited to the following where appropriate; 8.1 Obtain the names and addresses of everyone involved and of possible witnesses, and details of other vehicles involved; 8.2 Not, without our prior written consent, admit any responsibility or liability or release any party from any liability or potential liability, nor settle any claim or potential claim against or by any party, nor accept any disclaimer of liability; 8.3 Notify the police and US as soon as possible and in any event within 24 hours of the incident; 8.4 Within 48 hours of the incident complete and furnish to US OUR fully completed standard claim form; 8.5 Not abandon the motorcycle and make adequate provision for its safety and security; 8.6 Cooperate with US in any investigation, the lodging or instituting of any claim or action and the defence of any prosecution, claim or action relating to the above. GENERAL 9.1 YOU acknowledge that ownership in the motorcycle will at all times remain vested in US, or the true owner of the motorcycle. 9.2 YOU will not be entitled to cede or assign any of YOUR rights and obligations under this AGREEMENT or to sublet or part with possession of the motorcycle. 9.3 You are not permitted to carry out any repairs, including the replacement of any tyres, on the motorcycle unless duly authorized by US. 9.4 Any tampering by YOU with the odometer of the motorcycle will be regarded as fraud. Where required in determining the rental charges, the distance driven by the rider will be measured from the odometer installed in the motorcycle. If such calculation is not practical, or possible for any reason whatsoever, the calculation will be done by such other reasonable method as WE may determine and YOU will be obliged to furnish all such information and assistance as WE may reasonably require for that purpose. 9.5 If the RENTER is not the rider, then, without in any way detracting from the RENTER’s obligations in terms of this AGREEMENT, the RENTER and the rider will be liable to US jointly and severally for all and/or any amounts owing under this AGREEMENT. 9.6 Please be advised that although WE will use our best efforts, WE are unable to guarantee the availability of the motorcycle to YOU at a particular time due to possible circumstances beyond our control. In the event that WE are however unable to do this, WE will endeavour to make alternative arrangements until such time as WE are able to make the motorcycle available to YOU. 9.7 Save as otherwise stated in this AGREEMENT any addition to or alteration of this AGREEMENT will be null and void unless agreed upon by US in writing. 9.8 YOU choose the address where YOU will receive notices for all purposes in terms of this AGREEMENT, at the RENTER’s address specified in the AGREEMENT or, in the case of that address not being in the Republic of South Africa, at the rider’s local address specified in the AGREEMENT. 9.9 A certificate of any director, manager or accountant of MAKANI as to the amount owed by YOU to US will, on the face of it, constitute proof of the amount owing. 9.10 It is agreed that each clause of these terms and conditions is severable, the one from the other, and if any clause is found to be defective or unenforceable for any reason by any competent Court, then the remaining clauses will be and continue to be of full force and effect. 9.11 This AGREEMENT will be governed by and interpreted in accordance with the laws of the Republic of South Africa. 9.12 No extension, relaxation or other leniency that may be given or allowed by US can be taken to mean that other rights may not be enforced. 9.13 The RENTER and/or RIDER authorizes US to conduct any credit checks which WE deem necessary to adequately assess the risk of contracting with YOU. WE are entitled to note any default by YOU in terms of this AGREEMENT and, in accordance with The National Credit Act’s requirements, with any credit bureau, and YOU hold US blameless for any consequences arising from the notation.