1.1 The following terms shall have the following meanings unless the context otherwise requires.
‘Default Rate’ means the aggregate of the prime lending rate per annum as published by Barclays Bank Plc from time to time and the Margin.
‘Deposit’ means the refundable amount appearing overleaf, deposited by the Hirer to the Company which may be set off against any outstanding amounts due and payable by the Hirer to the Company under this Agreement.
‘Driver’ means the person, whose name appears in the relevant section of this Agreement as the driver of the Vehicle and any further drivers listed to drive the Vehicle as additional drivers.
‘Fleet Guide’ means the brochure setting out the makes and types of vehicles available for hire with the Company, a copy of which is annexed to this Agreement.
‘Margin’ means two (2) per cent per annum.
‘Mileage Limit’ means the maximum number of miles the Hirer is permitted to drive the Vehicle pursuant to clause 10.
‘Rental Fees’ means fees payable by the Hirer to the Company, the details of which are more fully set out overleaf.
‘Replacement Vehicle’ means the substitute for the Vehicle provided to the Hirer pursuant to clause 6.1.6.
‘Special Services Fees’ means the fees payable in respect of the Special Services.
‘Special Services’ means the insurance policy of the Vehicle and such replacement tyres as the Company may provide to the Hirer at the option of the Hirer and subject to payment of the Special Services Fees.
‘Vehicle’ means the vehicle described overleaf or any Replacement Vehicle forming part of the Fleet Guide of the Company, and includes its parts, components, accessories and contents supplied by the Company.
1.2 Unless the contrary intention appears or the context otherwise requires or admits:
1.2.1 a reference to this Agreement includes the Schedules which shall be deemed to form an integral part thereof;
1.2.2 headings are for convenience of reference only and shall not affect the construction or interpretation of the provisions of this Agreement;
1.2.3 except where the context requires otherwise the singular includes the plural and vice versa; a reference to one gender includes all genders;
1.2.4 any reference to any person include references to individuals, corporations, partnerships, joint ventures, associations, unincorporated organizations, government, or any agency or political sub division;
1.2.5 any reference to a body corporate shall include the successors and permitted assigns of such body corporate.
- Commencement of hire
2.1 The hiring of the Vehicle shall commence on the date on which the Vehicle is delivered to or made available for collection by the Hirer or its agents as specified overleaf (‘the Commencement of Hire’).
2.2 The precise details of the Vehicle including in particular the odometer reading on the Vehicle are specified overleaf. At the time of delivery or collection of the Vehicle this Agreement shall be signed by the Hirer or by a person authorised on its behalf, which signature shall constitute the Hirer’s acceptance of the Vehicle.
2.3 The Company shall use all reasonable endeavours to have the Vehicle available for delivery or collection on the Commencement of Hire but the Company shall not incur any liability whatsoever in the event of any delay.
2.4 The Company may at its discretion from time to time withdraw the Vehicle and substitute another one of similar or any other make and type.
3.1 Subject to clause 4, the Hirer shall pay to the Company in advance the Deposit, the Rental Fees and the Special Services Fees (if any) appearing overleaf, the first such payment to be made on the Commencement of Hire and subsequent payments to be made at the consecutive intervals specified overleaf without prior demand by the Company. Time shall be of the essence in respect of the payment of all sums due hereunder and the Hirer shall be deemed to have repudiated this Agreement if any Rental Fees or other payments shall remain unpaid for more than fourteen (14) days after becoming due.
3.2 If the Hirer fails to pay on the due date any amount which is payable to the Company pursuant to clause 3.1 then, without limiting clause 12.1, that amount shall bear interest at the Default Rate from the due date until payment is made to the Company.
3.3 In case any sum due under this Agreement is recovered through the services of an Attorney-at-Law, any charges and legal costs involved in the recovery of same as well as the Attorney’s 10% commission thereon shall be borne by the Hirer.
3.4 All payments in cash due hereunder shall be made to the Company at its address stated herein or at such other address as the Company may from time to time communicate to the Hirer. Any payments sent by post shall be so sent at the risk of the Hirer.
3.5 Any payment by cheque due hereunder to the Company shall be made to the order of Creative Car Rental Ltd and any payment by standing order shall be credited in the bank account of the Company with MCB, Account Number: 000442491115.
- Revision of Rental
4.1 The Hirer expressly acknowledges and accepts that the Company shall be entitled to revise the Rental Fees stated overleaf by such amount as the Company shall in its absolute discretion determine at any time before the Commencement of Hire.
4.2 Any such revision shall be notified by the Company to the Hirer as soon as practicable and in any event on or before the Commencement of Hire. In the event the Hirer does not accept such price revision, it shall have the right for a period of seven (7) days after receipt of such notification to serve notice on the Company cancelling this Agreement.
- Use of Vehicle
5.1 The Hirer may use the Vehicle for the purposes of its business and for the social domestic and pleasure purposes. The Vehicle is not to be used, and the Hirer shall not permit the Vehicle to be used, for any purposes for which it is not expressly designed. Further the Hirer shall not use or permit the Vehicle to be used for the following purposes:
5.1.1 driving the Vehicle under the influence of alcohol, drugs or any other type of narcotic substances;
5.1.2 transportation of inflammable, dangerous goods, as well as toxic, corrosive, or other harmful substances;
5.1.3 for carrying anything which, because of its smell or condition, will harm the Vehicle or mean the Company will lose time or money before it can rent the Vehicle again;
5.1.4 transportation of animals including domestic pets;
5.1.5 carrying of passengers for hire or reward;
5.1.6 re-rental to or use by persons other than the Driver;
5.1.7 giving driving lessons;
5.1.8 participating in rallies, competitions or trials, wherever they may take place;
5.1.9 pushing or towing another vehicle or exceeding the authorised load weight;
5.1.10 travelling on non-paved roads or on roads, the surface or state of repair of which could put the Vehicle’s wheels, tyres or its underbody mechanics at risk;
5.1.11 intentionally committing an offence in respect of any non‑compliance or contravention of any transport, traffic or other law or regulation in Mauritius.
5.2 The Hirer agrees that it shall not:
5.2.1 without the prior consent of the Company effect any mechanical or other modification to the Vehicle, make any alterations or additions, fit any towing equipment or other accessories or non‑standard tyres, and any such additions alterations or modified parts which may be made, whether with or without consent, shall become part of the Vehicle and shall belong to the Company;
5.2.2 remove or interfere with any identification marks or plates affixed to the Vehicle nor attempt or purport to do so nor permit the same;
5.2.3 deface the paintwork or bodywork of the Vehicle nor add or erect any painting, sign‑writing, lettering, or advertising to or on the Vehicle.
- Duties of the Company
6.1 The Company shall during the continuance of this Agreement:
6.1.1 obtain from the Hirer and, subject to the provisions of clause 7.1.7, pay all applicable road tax and licence fees for the Vehicle;
6.1.2 deliver the Vehicle to a place agreed between both parties free of charge, unless the Hirer elects to collect the Vehicle from the Company’s premises;
6.1.3 regularly service and maintain the Vehicle and shall be responsible for all costs thereto including materials, oil, grease and lubricants in accordance with the manufacturer’s recommendations having regard to mileage and time intervals, together with the cost of any necessary repairs or replacements except where such repair or replacement is necessitated by any accident or by any negligent use or abuse of the Vehicle;
6.1.4 repair the Vehicle in the event of mechanical breakdown;
6.1.5 provide and pay for all tyres required to be replaced through fair wear and tear or faulty manufacture;
6.1.6 subject to the provisions of clauses 6.1.3 and 6.1.4, in the event a Vehicle becomes temporarily unroadworthy, other than as a result of accident, damage, theft or vandalism, make available a Replacement Vehicle, not necessarily of the same type and age, for collection by the Hirer within forty-eight (48) hours, or so soon thereafter as is practicable, after the receipt of notification from the Hirer requesting the same.
- Duties of the Hirer
7.1 The Hirer shall during the continuance of this Agreement:
7.1.1 ensure that the Vehicle is operated properly and safely by the Driver who at all times hold a valid and current driving licence in the appropriate class;
7.1.2 subject to the provisions of clause 6.1.3, pay for all petrol and lubricants for the proper running of the Vehicle;
7.1.3 subject to the provisions of clause 6.1.4, deliver and collect the Vehicle to and from the Company or any maintenance or repairing agent of the Company and pay for the cost of towing the Vehicle when it has become unroad worthy;
7.1.4 indemnify the Company against all fines, penalties and liabilities imposed on the Company or arising in respect of any non‑compliance or contravention of any transport, traffic or other law or regulation, together with any cost or expense relating thereto incurred by the Company;
7.1.5 collect from the Company, or from such place as the Company shall advise, the Vehicle or any Replacement Vehicle made available to the Hirer, and return the Vehicle to the Company or to such place as the Company shall advise, in the same condition as the Vehicle was at the Commencement of Hire. The Replacement Vehicle shall be returned within twenty four (24) hours after the Hirer has been informed by the Company that the original Vehicle is ready for collection, failing which the Hirer shall pay additional Rental Fees for the Replacement Vehicle at a rate determined by the Company for the period during which the Replacement Vehicle is retained by the Hirer;
7.1.6 bear the cost of the repair or rectification of any damage to the Vehicle resulting from negligence or improper use of the Vehicle by the Driver or the Hirer;
7.1.7 reimburse to the Company any amount by which the cost of all applicable road tax and licence fees for the Vehicle is increased above the prevailing rate as at the date of this Agreement;
7.1.8 pay all costs incurred by the Company in respect of the supply and fixing of any accessories, extras or additions which may be required by law or which are fitted to the Vehicle at the request of or by the Hirer;
7.1.9 not sell, assign, mortgage, let on hire or otherwise dispose of or part with possession of the Vehicle or part thereof or charge the benefit of this Agreement nor attempt or purport to do so;
7.1.10 take all necessary steps at its own expense to retain and recover possession and control of the Vehicle of which the Hirer loses possession or control;
7.1.11 permit the Company or its authorised representatives at all reasonable times to enter upon the premises where each Vehicle may from time to time be garaged or parked to inspect and test the condition of the Vehicle;
7.1.12 notify the Company of any change in the Hirer’s address and upon request by the Company promptly inform the Company of the whereabouts of the Vehicle;
7.1.13 in respect of the condition and maintenance of the Vehicle, be solely responsible at its own cost for:
220.127.116.11 regularly checking and adjusting as necessary the radiator battery and engine fluid levels;
18.104.22.168 regularly cleaning the exterior, interior and upholstery of the Vehicle;
22.214.171.124 promptly repairing any damage to the Vehicle;
126.96.36.199 keeping accurate records of servicing;
188.8.131.52 regularly tuning the engine;
184.108.40.206 arranging the regular servicing of the Vehicle subject to clause 6.1.3;
220.127.116.11 replacing any shattered, broken or splintered windscreens or windows.
7.1.14 arrange for the Vehicle to be road tested as and to the extent required by any legislation prior to the date on which a vehicle fitness test certificate is first required, or as the case may be, on the expiry date of the last such certificate;
7.1.15 not use or permit the Vehicle to be used or operated in a manner contrary to any statutory provision or regulation or in any way contrary to law, having regard in particular (but without prejudice to the generality of the foregoing) to the regulations affecting maintenance and usage of tyres.
8.1 Subject to clause 8.5, the Hirer shall throughout the continuance in force of this Agreement without prejudice to the liability of the Hirer to the Company keep the Vehicle, including any Replacement Vehicle insured with an insurance company of good repute against loss or damage from all risks including third party risks. The Hirer shall notify its insurers that the Vehicle is on hire from the Company and request the insurers to endorse a note of such interest on its insurance policy naming the Company as loss payee, shall on demand show to the Company the insurance policy, the premium receipts and Insurance Certificate and shall not use or allow the Vehicle to be used for any purpose not permitted by the terms and conditions of the insurance policy or do or allow to be done any act or thing whereby the insurance may be invalidated. If the Hirer shall make default in the payment of any premium in respect of the insurance the Company may pay such premium in which event the Hirer shall repay the amount thereof to the Company on demand. The Hirer shall indemnify the Company against all loss or damage to the Vehicle not recoverable under the insurance policy.
8.2 Where any event or accident shall occur which is a risk covered by the Hirer’s insurance hereunder, the Hirer shall immediately notify the Company thereof, shall not compromise any claim without the consent of the Company, shall allow the Company to take over the conduct of negotiations except in relation to claims of the Hirer for personal injuries, loss of use of the Vehicle, or loss or damage to the property of the Hirer unconnected with the Vehicle and shall at the expense of the Hirer take such proceedings in the sole name of the Hirer or jointly with the Company as the Company shall direct, holding all sums recovered, together with any monies received by the Hirer under its insurance policy, on trust for the Company and paying or applying the same as the Company directs and as herein provided. If any Vehicle is declared a total loss, the hire thereof shall terminate. In such event the Company shall apply any proceeds of insurance received by it at its option:
8.2.1 towards a replacement of equivalent value which replacement shall be deemed to be included in this Agreement for all purposes; or
8.2.2 in or towards payment to the Company of the sum necessary to compensate the Company for the loss of profit suffered as a result of the loss of that Vehicle.
8.3 The Company shall have the right itself to repair or have repaired any Vehicle which is the subject of an accident. If the Company does not choose to do so the Hirer shall be liable to reinstate or repair at its own expense but, subject to any insurance proceeds, any Vehicle which have not become a total loss and shall continue to pay Rental Fees in respect of such Vehicle during such reinstatement or repair.
8.4 The Hirer shall be liable to pay to the Company any amount deducted by the insurers by way of excess or in respect of damage caused to the Vehicle prior to the date of total loss, and, subject to the application of insurance proceeds under clause 8.2.2, shall indemnify the Company against all and any loss suffered by it in consequence of the loss or destruction of the relevant Vehicle.
8.5 If the Hirer purchases the insurance policy arranged by the Company with its insurance company by initialling in the “I accept” space overleaf, the Hirer shall:
8.5.1 be bound by the terms and conditions of the insurance policy of the Company;
8.5.2 not use or allow the Vehicle to be used for any purpose not permitted by the terms and conditions of the insurance policy of the Company or do or allow to be done any act or thing whereby the insurance may be invalidated;
8.5.3 indemnify the Company against all loss or damage to the Vehicle not recoverable under the insurance policy of the Company.
9.1 The Hirer shall be solely responsible for and hold the Company fully indemnified against all claims, demands, liabilities, losses, damages, proceedings, costs and expenses which may be brought against or incurred by the Company as a result of any accident involving the Vehicle other than death or personal injury resulting from the negligence of the Company, its employees or agents.
9.2 The Company does not hire the Vehicle subject to any condition or warranty express, implied or statutory in connection with the fitness for any purpose or age of the Vehicle and any conditions and warranties are hereby expressly excluded insofar as permitted by statute and, save for the Company’s liability for death or personal injury caused by the negligence of the Company, its employees or agents the Company shall not be responsible for any liability, claim, loss, damage or expense of any kind or nature caused directly or indirectly by the Vehicle or their use.
9.3 The Hirer shall be solely responsible for and hold the Company fully indemnified against all claims, demands, liabilities, losses, damages, proceedings, costs and expenses suffered or incurred by the Company as a result of any breach or default on the part of the Hirer in the discharge of its obligations under this Agreement.
- Excess mileage
10.1 In the event the Vehicle is driven in excess of the Mileage Limit appearing overleaf, the Hirer shall pay to the Company the additional Rental Fees per mile shown overleaf in respect of such Vehicle, such payment to be made within seven (7) days after demand.
10.2 Any mileage covered by a Replacement Vehicle at any time used in place of the Vehicle the subject of this Agreement shall be added to the total mileage covered by the replaced Vehicle for the purpose of the calculation of excess mileage additional Rental Fees.
10.3 The Hirer shall on each anniversary of the Commencement of Hire supply to the Company written details of the then correct odometer reading for the Vehicle. The Company reserves the right to inspect the Vehicle from time to time at any time to verify such readings.
10.4 In the event that the odometer on the Vehicle ceases to function properly or if the Company’s or the manufacturer’s seals on the odometer of the Vehicle has been interfered with the Company shall be entitled to estimate the mileage covered by that Vehicle for the period during which the odometer shall have failed to function or in the event of any interference as aforesaid.
11.1 The Vehicle shall at all times remain the property of the Company and the Hirer shall have no rights to the Vehicle other than as hirer and the Hirer shall not do or permit or cause to be done any matter or thing whereby the rights of the Company in respect of the Vehicle are or may be prejudicially affected.
12.1 If the Hirer shall fail to pay any Rental Fees or other sum payable under this Agreement within fourteen (14) days of its becoming due (whether demanded or not) or shall commit a breach of the other terms and conditions whether express or implied of this Agreement or shall do or allow to be done any act or thing which in the opinion of the Company may jeopardise the Company’s rights in the Vehicle or any part thereof, then in each and every such case the Hirer shall be deemed to have repudiated this Agreement and the Company may thereupon forthwith terminate the leasing constituted by this Agreement.
12.2 If any of the following events shall occur, namely:
12.2.1 if any distress, execution, or other legal process shall be levied on or against the Vehicle or any part thereof or against any premises where the same may be or against any of the Hirer’s goods or other property or the Hirer shall permit any judgment against it to remain unsatisfied for seven (7) days; or
12.2.2 if the Hirer, being an individual, shall die, shall suffer an interim order to be made against him or enter into a voluntary arrangement or suffer the making of a statutory demand or the presentation of a petition for a bankruptcy order; or
12.2.3 if the Hirer, being a body corporate, shall enter into any liquidation, shall call any meeting of its creditors or shall have a receiver or receiver manager of all or any of its undertaking or assets appointed, or shall suffer the appointment or the presentation of a petition for the appointment of an administrator, or shall be deemed to be unable to pay its debts, then in each and every such case the hire constituted by this Agreement shall automatically and without notice terminate and no payment subsequently accepted by the Company without knowledge of such termination shall in any way prejudice or affect the operation of this clause.
12.3 The Hirer shall upon any termination under clauses 12.1 or 12.2 pay to the Company:
12.3.1 all arrears of Rental Fees then due and all other sums accrued due and unpaid at the date of termination, together with interest thereon payable under clause 7.1.1; and
12.3.2 the cost of all repairs required as at the date of termination other than those for which the Company has assumed responsibility under clauses 6.1.3 and 6.1.4; and
12.3.3 compensation for the loss suffered by the Company as a result of such termination, such loss being determined by the Company having regard to all relevant circumstances; and
12.3.4 any other sums which are or become due to the Company or to which the Company is entitled by way of damages.
12.4 On termination or expiry of this Agreement howsoever or whenever occasioned, the Hirer shall no longer be in possession of the Vehicle with the Company’s consent and shall, unless otherwise agreed with the Company, return the Vehicle within fourteen (14) days of such termination or expiry (‘the Deadline’), including each Vehicle’s spare wheel, tyres, tools, handbook and service vouchers and accessories where fitted, to the Company at such address as the Company may direct in good order and in good working condition and at the Hirer’s expense and risk. Without prejudice to the foregoing or to the Company’s claim for any arrears of Rental Fees or damages for any breach by the Hirer of this Agreement or any other rights hereunder, the Company or its authorised representatives may at any time after the Deadline retake possession of the Vehicle and for such purpose enter upon any premises belonging to or in the occupation or control of the Hirer and the Hirer shall be responsible for all costs, charges and expenses so incurred in retaking possession of the Vehicle as aforesaid. The Hirer shall also bear the reasonable costs incurred by the Company at any time in ascertaining the whereabouts of the Vehicle and/or the Hirer.
12.5 The termination of this Agreement for any reason shall not:
12.5.1 release any Party from any obligation that has accrued prior to the effective date of such termination (including the obligation to pay amounts accrued and due under this Agreement prior to the termination date but which are unpaid or become payable thereafter);
12.5.2 preclude any Party from claiming any damages, compensation, or relief that it may be entitled to upon such termination; or
12.5.3 terminate any right to obtain performance of any obligation provided for in this Agreement that shall survive termination.
- Continuation payment
13.1 Without prejudice to the provisions of clause 12.4, as from the due expiration of this Agreement and until such time as the Vehicle shall have been returned the Hirer shall pay for the continued use of the Vehicle a sum, payable in arrear, at the same rate as the Rental Fees payments previously due in respect thereof.
13.2 This clause shall not confer upon the Hirer any right to the continued use or possession of the Vehicle.
- Value Added Tax
14.1 All sums due from the Hirer to the Company hereunder shall be increased to include VAT at the rate or rates for the time being in force.
- Force majeure
15.1 Although the Company shall use all reasonable endeavours to discharge its obligations under this Agreement in a prompt and efficient manner, it does not accept responsibility for any failure or delay caused by circumstances beyond its control.
16.1 Any notice, report, communication or consent required to be given hereunder by either Party to the other shall be in writing and shall be served by sending the same:
16.1.1 by registered or recorded delivery post; or
16.1.2 via facsimile or telecopy, followed within five (5) working days by a copy mailed in the preceding manner, to the address of the other Party as appearing overleaf or to such other address as that Party may have previously notified to the Party giving notice as its address for such service.
16.2 All notices documents communications and any other data to be provided under this Agreement shall be in the English language unless otherwise agreed.
17.1 This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective legal successors but shall not otherwise be assignable by the Customer without the prior written consent of the Service Provider which consent shall not be unreasonably withheld.
17.2 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes all prior written or oral representations agreements or understandings between them relating to the subject matter of this Agreement other than any false misrepresentation made by a Party to induce the other Party to enter into this Agreement.
17.3 No variation or amendment of this Agreement shall bind either Party unless agreed to in writing by duly authorised officers of both Parties.
17.4 If any provision of this Agreement is agreed by the Parties to be illegal void or unenforceable under any law that is applicable hereto or if any court or other authority of competent jurisdiction in a final decision so determines this Agreement shall continue in force save that such provision shall be deemed to be excised herefrom with effect from the date of such agreement or decision or such earlier date as the Parties may agree.
17.5 The headings in this Agreement are for convenience only and are not intended to have any legal effect.
17.6 A failure by either Party hereto to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
17.7 For the avoidance of doubt, the Parties confirm that they have entered into this Agreement as independent contractors and that nothing in this Agreement shall be construed as creating an agency, a partnership, a joint venture or any other similar relationship between the Parties.
- Governing law
18.1 The construction validity and performance of this Agreement shall be governed in all respects by the laws of Mauritius.
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