VANITO (PTY) LTD FREIGHT TRADING TERMS AND CONDITIONS (hereinafter referred to as the “Agreement”)
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VANITO (PTY) LTD FREIGHT TRADING TERMS AND CONDITIONS (hereinafter referred to as the “Agreement”)
1. DEFINITIONS AND INTERPRETATION
1.1. The headings of the clauses in these trading terms, are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof.
1.2. In these trading terms and conditions, words importing:
1.2.1. any one gender include the other gender
1.2.2. the singular include the plural and vice versa; and
1.2.3. natural persons include created entities (corporate or non-incorporated) and vice versa.
1.3. In this agreement, unless a contrary intention clearly appears, the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
1.3.1. the singular shall import and include the plural and vice versa;
1.3.2. words indicating one gender shall import and include the other gender;
1.3.3. words indicating natural persons shall import and include artificial persons;
1.3.4. the head notes to this agreement are used for the sake of convenience only and shall not govern the interpretation of the clause to which they relate; and
1.3.5. the following words and expressions shall, in addition to their respective ordinary meanings, bear the following meanings assigned to each of them respectively:
1.3.5.1. “Agreement” means these Freight Terms and Conditions concluded between the Carrier and the Customer, as evidenced by a Quote or any other method, and all annexures thereto;
1.3.5.2. “Carrier” means Vanito (Pty) Ltd, with Registration Number: 2012/015315/07, a private company
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with limited liability incorporated in the Republic of South Africa, together with any company which is a controlled company or a subsidiary thereof, both as defined by the Companies Act No.61 the Companies Act No.71 of 2008, as amended from time to time;
1.3.5.3. “Customer” means any person with whom Vanito (Pty) Ltd Agreements for the purpose of providing any advice, information, service or to whom the Quote addressed;
1.3.5.4. “Client Advice” means the placement of an order, or request to order in any written form whatsoever which is delivered by a Customer to the Carrier from time to time pursuant to which a Quote will be given;
1.3.5.5. “Cross Border Country/ies” means the Countries which border the Country of South Africa (sub- Saharan Africa), being Zimbabwe, Zambia, Tanzania, Democratic Republic of Congo (“DRC”) and Botswana;
1.3.5.6. “Goods” means the products and/or goods and/or machinery of the Customer, abnormal goods and/or such other goods inclusive and ranging from graders, dozers, water tanks, dump trucks, speedboat chassis, hoppers to excavators, as may be more fully detailed in the Quote or a Client Advice, whether consigned singly, in parcels, or in bulk, in respect of
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which the Services are to be rendered;
1.3.5.7. “Dangerous Goods” – those goods declared as dangerous by the Department of Transport, or goods which are considered by the Carrier, in its sole discretion, to be dangerous and/or hazardous posing significant risk to people, health, property or the environment when transported in quantity;
1.3.5.8. “RSA” means the Republic of South Africa;
1.3.5.9. “International Commercial means the standard international trade Terms” definitions, as devised and published by the International Chamber of Commerce from time to time;
1.3.5.10. “Service(s)” the carriage, transportation, handling and/or haulage services to be rendered by the Carrier to the Customer in respect of the Goods, as more fully referred to in clause 4;
1.3.5.11. “Quote” means the written document from the Carrier setting out inter alia the price for which the Carrier is willing to provide Service(s) to the Customer;
1.3.5.12. “VAT” value-added tax levied in terms of the Value Added Tax Act No. 89 of 1991, as amended.
1.4. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday within the meaning of the Public Holidays Act, 1994 (as amended), in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday within the meaning of that Act.
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1.5. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail herein.
1.6. Expressions defined shall bear the same meanings in schedules or annexures hereto, which do not themselves contain their own definitions.
1.7. The words “clause” or “clauses” and “annexure” or “annexures” refer respectively to the clauses hereof and the annexures hereto.
1.8. The rule of construction, that an agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply to this Agreement on the basis that its terms are negotiated amongst the Parties.
1.9. This Agreement shall be governed by, construed and interpreted in accordance with, the laws of the Republic of South Africa.
2. ACCEPTANCE
2.1. By submitting an account/credit application form to the Carrier, signing this Agreement or by accepting a Quote in writing, verbally or the provision of the Goods and/or otherwise making available the Goods for collection by the Carrier, the Customer accepts the terms set out in this Agreement of the Carrier.
2.2. Any other terms and conditions wheresoever contained (including but not limited to the Customer’s own terms and conditions) are expressly excluded.
3. COMMENCEMENT
This Agreement commences upon the Carrier providing a Quote to the Customer and/or the date of signature hereof (“the Commencement Date”).
4. SERVICES
4.1. The Carrier shall provide services by investigating and making recommendations for and efficient and affordable way to transport the Customers load to where it needs to go, with real time reporting all the way, inclusive of daily tracking reports giving you realtime tracking of your shipment.
4.2. The Carrier creates solutions for difficult loads, and even more difficult locations.
4.3. The Carrier has flat decks, tri-axles, lowbeds, extendables and a diverse flexible fleet for all loads inclusive of abnormal and cross-border transportation.
4.4. The Carrier transports everything from graders, dozers, water tanks, dump trucks,
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speedboats, chassis, hoppers to excavators, or any other good agreed upon by the parties.
4.5. The Carrier transports within RSA and to Zimbabwe, Zambia, Tanzania, DRC and Botswana (sub-Saharan Africa).
4.6. The Carrier shall, subject to the International Commercial Terms governing a particular consignment of Goods, if applicable, arrange for, plan, implement and control the loading, collection and transportation of the Goods, from their point of origin to a designated destination as required by the Customer from time to time, which shall inter alia include –
4.6.1. if applicable or requested, attending to the preparation of all necessary documentation required for cross-border transportation of the Goods, including, inter alia, documents required for customs clearance purposes, booking of cargo space for the Goods and ancillary services;
4.6.2. ensuring the use of appropriate materials to ensure the safe and lawful transportation of the Goods;
4.6.3. transporting consignments of Goods;
4.6.4. groupage services, meaning, arranging for the collection and subsequent transport by the Carrier of consignments of the Goods comprising of loose loads of Goods collected as designated by the Customer and consolidating the same into a single full container or load for their delivery to such destination(s) as is/(are) directed by the Customer;
4.6.5. the collection of the Goods from their original source as directed by the Customer in writing;
4.6.6. inland transportation and/or road haulage of the Goods, subsequent to the collection of the same from the relevant port of entry and the delivery thereof to such addresses within the RSA and/or Border Countries as agreed to in writing by the parties, as the Customer may direct from time to time;
4.6.7. complying with all applicable statutory obligations in rendering the Services;
4.6.8. marking the Goods appropriately and in accordance with all technical aspects of transporting the Goods, both nationally and internationally, if
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applicable, as may be required and/or necessary;
4.6.9. safely store the Goods during their transit;
4.6.10. goods handling including the loading and unloading, as the case may be, of Goods (or its constituent parts) into or out of the relevant transportation vehicles from the relevant points of collection to the designated destination;
4.6.11. arranging and completing all necessary documentation in regard to the transportation of Goods, required pursuant hereto and the delivery of copies thereof to the Customer from time to time, provided that the Customer shall sign all such documents and do all such things as may be required to be done and/or assigned by it for due and proper performance of the Services by the Carrier; and
4.6.12. any other service commonly performed as road haulage/carrier services, as the parties may from time to time agree upon in writing.
5. CLIENT ADVICE
5.1. The Customer may from time to time deliver a Client Advice to the Carrier. Upon receipt by the Carrier of each Client Advice the Carrier shall be entitled to elect, in its sole and absolute discretion, whether to issue a Quote to the Customer based on the information contained in the Client Advice.
5.2. The Carrier may, upon receipt of a Client Advice, issue a Quote to the Customer based upon the information contained in the Client Advice. Should the Quote be acceptable to the Customer the Customer may inform the Carrier thereof in writing or verbally or the Customer may be deemed to have accepted the Quote by the provision of the Goods and/or otherwise making available the Goods for collection by the Carrier.
5.3. The Carrier shall render the Services pursuant to the instructions of the Client Advice in accordance with this Agreement.
6. CONDITION OF GOODS
6.1. The onus of proving the quantity, type, physical properties and composition and
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the condition of the Goods at the time of receipt thereof by the Carrier shall at all times remain with the Customer, and no delivery note, receipt or other document furnished or signed at such time by or on behalf of the Carrier shall constitute conclusive proof thereof.
6.2. The Customer shall be liable for any and/or all losses or damage (whether direct or indirect) caused to the Goods and/or third parties by all Goods handled and hereby indemnifies the Carrier against any claims (of whatsoever nature) arising in connection therewith. In no way, manner or form does the indemnity set out in this clause limit the extent of the indemnity provided for in clause 20 herein below.
7. DANGEROUS GOODS
7.1. Unless otherwise agreed in writing, the Customer warrants that all Goods handled are fit to be so handled in the ordinary way and are not dangerous.
7.2. Unless otherwise agreed in writing, the Carrier will not handle any Dangerous Goods, or Goods that are corrosive, noxious, hazardous, inflammable or explosive Goods or any Goods which in its opinion are likely to cause damage.
7.3. Should the Carrier agree to handle any Dangerous Goods for any purpose –
7.3.1. the Customer shall furnish to the Carrier with the Goods a written declaration detailing the trade name, chemical composition, if applicable and characteristics of the Goods; and
7.3.2. such declaration shall define the precise respects or circumstances in which the Goods are dangerous; and
7.3.3. the Customer shall ensure that the Goods bear the warning labels and declarations required in terms of the laws and regulations applicable to the transportation of dangerous goods.
7.4. If, in the opinion of the Carrier, any Goods (whether they have been declared as dangerous or not) become a danger to any person or property, the Carrier shall be entitled immediately and without notice to the Customer to dispose of the Goods in question or take such other steps as it in its sole discretion deems prudent to avert danger. In such event the Carrier shall –
7.4.1. not be liable under any circumstances for the value of the Goods or for
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any other loss or damage whether directly or indirectly sustained by the Customer or owner as a result of such disposal or other steps; and
7.4.2. shall still be entitled to recover from the Customer its remuneration for the handling of the Goods together with any costs incurred by it in disposing of them or taking other steps.
7.5. Unless written instructions are given to the Carrier, it shall be under no obligation to make any declaration or to seek any special protection or cover, in respect of any Goods.
8. LOADING AND OFF-LOADING
8.1. The Customer shall ensure that :
8.1.1. the Goods shall be ready for loading on the date specified;
8.1.2. all documentation necessary in connection with the Goods and the transportation thereof shall be fully and correctly prepared;
8.1.3. at all places where the Carrier is to collect and/or off-load the Goods there will be safe, suitable and adequate access and loading and off-loading facilities, and that it is possible for the Carrier to do so by means of ordinary equipment, without need for any special or additional tackle, plant, power, labour or equipment; and
8.1.4. the Customer shall sign such certificates and receipts on loading and off-loading as the Carrier may require evidencing that it has satisfied itself with the loading and offloading of the Goods.
8.2. Any Customer (or owner) conducting any packing or other operation or activity in any area or premises provided by the Carrier shall do so at its own risk, and the Customer hereby indemnifies the Carrier against all claims or losses arising out of the presence of the Customer in such area or premises. In no way, manner of form does this clause limit the extent of the indemnity provided for in clause 20 herein below.
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9. ROUTE
9.1. When carrying Goods, the Carrier shall in its sole discretion decide what route to follow.
9.2. Should there be unsuitable roads over which the Carrier’s vehicles can traverse either for the collection or delivery of Goods, the Customer shall forthwith notify the Carrier of the same and the Carrier shall be entitled to either refuse to collect and/or deliver the Goods or to deliver the Goods to an alternative place, in either event such action shall be deemed to be proper performance of the Carrier’s obligations in terms hereof.
9.3. In the event of the Carrier being obliged to deviate from the route selected by it, or to carry the Goods over another route, for any reason whatsoever including but not limited to adverse weather conditions, impassable or dangerous roads, bridges, pontoons and ferries, or the instructions of any competent authority, the Carrier will be entitled to increase the remuneration stated in the Quote in proportion to the resulting extra distance travelled and the Customer shall pay the increase.
9.4. In the event of any fine being levied on or costs accruing to the Carrier as a result of the route taken or a change in route required by any authority, the Customer shall be liable for the cost of that fine and/or costs, as the case may be.
10. QUOTES
10.1. The Carrier shall be entitled at any time by notice to the Customer to cancel or resale from any quotation or executory agreement in circumstances where it becomes impracticable or uneconomical for the Company to carry out the Agreement at the quoted rate and the Customer shall have no claim whatsoever against the Company for any loss that the Customer might incur as a result of the Company cancelling or resiling from the quotation of executory agreement.
10.2. The quotes exclude any VAT, duties, other taxes, imposts, fines or outlays of whatsoever nature levied by any competent authority(ies) at any port or place in connection with the Goods and the Customer shall on demand reimburse the Carrier for any such amount disbursed or losses sustained by the Carrier in connection therewith.
10.3. Without in any way limiting the provisions of clause 10.1 above, all quotations and Agreements are subject to revision without notice having regard to changes in currency, exchange rates and upward movements in the amounts payable by or on
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behalf of or at the instance of the Carrier to third parties including, without limitation, freight, surcharges, insurance premiums, equipment, rental and labour with charges and upward movements take place that alter the quotation.
10.4. Any Revision of rates aforesaid will be commensurate with the change in the currency exchange rate or the increase in such amounts payable.
10.5. Any increase shall, failing agreement between the parties be determined by the auditors of the Carrier or any other auditors nominated by the Carrie, who in such determination shall act as experts and not as arbitrators and whose decision shall be final and binding on the parties.
10.6. The Quotes are given having regard to the Goods, the existing scale of wages and air, railway or shipping rates in force at the date upon which the Quote is given and any other relevant matter contained in a Client Advice, if any.
10.7. The Carrier shall not be bound by any Quote which is older than 30 (thirty) days, calculated from the date reflected on the face thereof.
10.8. All Quotes are subject to amendment until such time as loading of the Goods shall actually have commenced.
10.9. The Carrier will furthermore be entitled to increase the remuneration stated in a Quote in the event of the Customer increasing the quantity of the Goods to be carried, in proportion to such increase.
11. FEES
11.1. In consideration for rendering the Services, the Customer shall pay to the Carrier an all-inclusive fee as detailed in the Quote, exclusive of VAT.
11.2. In addition, thereto the Customer shall, on demand, pay the additional charges and/or costs referred to elsewhere in this Agreement.
11.3. The Carrier is entitled to the benefit of any discounts obtained and to retain and to be paid all brokerages, commissions, allowances and other remunerations of whatsoever nature and kind, and shall not be obliged to disclose or account to the Customer, for any such remuneration received by it.
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12. WAREHOUSING
Pending forwarding and/or delivery by or on behalf of the Carrier, goods may be warehoused or otherwise held at any place as determined by the Carrier in its absolute discretion, at the Customer’s expense.
13. DEMURRAGE OR STORAGE CHARGES
13.1. The Carrier shall not be liable for demurrage or storage charges of any nature whatsoever and howsoever arising.
13.2. The Customer hereby appoints the Carrier irrevocably and in rem suam as its agent and in its name, place and stead and hereby authorise the Carrier to Agreement and bind the Customer for the storage of the Goods upon such terms and conditions as the Carrier may, in its sole discretion elect, and without any liability whatsoever attaching to the Carrier to attend to such storage.
13.3. Where any such demurrage and/or storage charges are paid by the Carrier in respect of the Goods and/or on behalf of the Customer, such charges shall be refunded to the Carrier by the Customer on demand.
14. INVOICES AND PAYMENT
14.1. The Carrier shall issue a tax invoice to the Customer for payment by the Customer upon completion of the services forming the subject of such invoice.
14.2. Invoices shall be payable by the Customer within the terms as stated in the invoice issued by the Carrier.
14.3. The invoices shall inter alia detail –
14.3.1. the point of origin/collection of the Goods, a description of the Goods and their quantities, and the point of delivery/ collection;
14.3.2. the consideration referred to in clause 11.1 and charges referred to in clause 11.2 incurred by the Carrier on behalf of the Customer; and
14.3.3. all such information as may be necessary so as to render the invoice a valid tax invoice in terms of RSA tax laws.
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14.4. The Carrier shall in its absolute discretion be entitled to appropriate all payments made by the Customer towards the payment of any debt or obligation of whatsoever nature owing by the Customer to the Carrier, irrespective of when such debt or obligation arose.
14.5. Interest will accrue on all payments not made on due date at the rate of 7% per annum from the due date to the date on which payment in full is effected.
14.6. The Customer may not raise any claim, dispute or counterclaim as a reason for deferring payment and the Customer may not withhold any payment or set off any claim or counter-claim which it may wish to raise against the amount invoiced by the Carrier.
15. CAPACITY OF CARRIER
15.1. The Carrier acknowledges and agrees that it renders the Services as an independent Contractor and is not a legal representative of the Customer. Accordingly, this Agreement shall, unless the context expressly indicates the contrary, not to be construed as creating a wider relationship of principal and agent between the Carrier and the Customer nor any partnership (in the legal sense) nor a joint venture between them.
15.2. Save as may be stated to the contrary herein, the Carrier does not have any power or authority, (whether express or implied) to bind the Customer, and the Carrier shall not represent or hold itself out as having any such power or authority, to make any commitment or enter into any Agreement or agreement binding or purporting to bind the Customer, unless such power or authority is expressly stated in writing, and is signed on behalf of the Customer or by an authorised person. No employee of the Carrier is, nor shall he/she be deemed to be an employee of the Customer.
16. SUBCONTRACTING
16.1. Any business entrusted by the customer to the Carrier may, in the absolute discretion of the Carrier, be fulfilled by the Company itself, by its own servants performing part or all of the relevant services, or by the Carrier employing, or entrusting the goods or services to third parties on such conditions as may be stipulated by, or negotiated with, such third parties for the purposes of such services, or such part thereof as they may be employed to carry out.
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16.2. Where the Carrier employs third parties to perform all or any of the functions which it has agreed to perform, the Customer agrees that the Carrier shall have no responsibility or liability to its Customer for any act or omission of such third party, even though the Carrier may be responsible for for the payment of their charges; but the Carrier shall, provided it has been suitably indemnified against all costs, (including attorney and client costs) which may be incurred by or awarded against the Carrier take such action against the third party on the Carriers behalf as the Customer may direct
17. UNDERTAKINGS OF THE CARRIER
17.1. Subject to the terms hereof, the Carrier hereby undertakes in favour of the Customer, that in rendering the Services it shall, subject to the terms hereof –
17.1.1. conduct itself with such skill and timing as may reasonably be expected of a professional transporter;
17.1.2. keep and be responsible for all consignments of Goods in its custody or control;
17.1.3. comply with all relevant laws and regulations of the RSA and all other countries, if any, through which any consignment of Goods is to pass pursuant hereto; and
17.1.4. use its best endeavours to perform in a timely manner, bearing in mind that should a delay in the transport of the Goods occur, the Carrier shall not be liable therefore and the Customer hereby indemnifies the Carrier accordingly from any losses or damages (direct and/or indirect) as a result thereof. In no way, manner or form does the indemnity set out in this clause limit the extent of the indemnity as set out in clause 19 herein below.
18. AUTHORITIES
18.1. It shall be the sole responsibility of the Carrier to procure and maintain in force all authorities including, without limitation, licences and other permissions required by the Carrier for purposes of carrying out its obligations in terms hereof.
18.2. For the avoidance of doubt, it is recorded that the Carrier’s obligations or duties in terms of this Agreement shall only take effect at such time as the relevant authorities, permits, approvals or the like required in terms of any law, by-law or regulation for the import, clearing, and/or transport of the Goods have been obtained. The Customer shall provide all assistance and information reasonably required by the Carrier for the purpose of applying for or obtaining any such
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authorisation, permit, consent, or approval.
18.3. In the event of the Carrier being obliged to take out or obtain any licences or permits, or to comply with the requirements of any lawful authority, the Carrier will be entitled to make (and the Customer shall on demand pay) an additional charge to cover any expenses resulting therefrom not already included in the Quote.
19. UNDERTAKINGS OF THE CUSTOMER
19.1. The Customer hereby undertakes and warrants in favour of the Carrier –
19.1.1. that it shall provide the Carrier timeously with all data and/or information as requested for the safe transport of the consignment of Goods in question. In particular, the Customer shall advise the Carrier of the marks, numbers, quantities, nature, contents of packages of Goods, their weight, dimensions, value, as well as other information reasonably required by the Carrier;
19.1.2. the correctness of the declared weight of the Goods and hereby indemnifies the Carrier against all expenses, claims, fines, costs or damages howsoever arising from any inaccuracy in the weight of the Goods declared by the Customer regardless of whether the inaccuracy was negligent or not;
19.1.3. that it shall ensure that all consignments of Goods are appropriately marked and packed properly and adequately, in compliance with all relevant laws and practices, and so as to withstand handling, storage and transportation without damage to the Goods or damage, injury or death to any other person(s) or property;
19.1.4. the accuracy and correctness of all descriptions, values and other particulars furnished to the Carrier in relation to the Goods for customs, railage and other purposes. In this regard, the Customer hereby indemnifies the Carrier against all expenses, claims or fines arising from any inaccuracy or omission of descriptions, values or other particulars in relation to the Goods (even if the inaccuracy or omission of descriptions, values or other particulars occurs without negligence);
19.1.5. that the carriage of the Goods will not violate or infringe any Act, regulation or law and the Customer hereby indemnifies and holds the Carrier harmless
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against any claims and/or damages which the Carrier may suffer by virtue of the Customer’s breach of this warranty;
19.1.6. are marked both on the Goods and/or containers in full compliance with all the laws, conventions and practices applicable in any country to which or through which the Goods are to be transported and that such marks enable the Goods to be readily identified; and
19.1.7. that the Goods are the Customer’s sole property, alternatively, the Customer is authorised by the owner of the Goods to enter into this Agreement subject to these terms and conditions, and the Customer hereby indemnifies the Carrier against any claim of any nature made by the owner.
19.2. In no way, manner or form do the indemnities set out in clause 19 limit the extent of the indemnity provided for in clause 20 herein below.
20. INDEMNITY AND LIMITED LIABILITY FOR DAMAGE OR LOSS
20.1. The Goods shall be carried at the sole risk of the Customer (or owner). The Customer hereby exempts the Carrier from and indemnifies the Carrier against all liability of whatsoever nature, arising directly or indirectly from the handling of the Goods. This exemption and indemnity includes, but is not restricted to, any liability for direct and/or consequential and/or indirect and/or inconsequential loss, personal injury, death or damages (of whatsoever nature) arising from, but not limited to, loss of the Goods, damage to the Goods, the failure to collect or deliver the Goods timeously, adequately or at all, or from or to the correct address, or from any other cause arising, whether any such liability, loss or damage is caused by or arises from, inter alia, breach of Agreement, negligence or gross negligence, on the part of the Carrier, its agents, sub-Agreements or employees, or otherwise.
20.2. If it is desired that the liability of the Carrier should not be governed by these limits, written notice thereof must be given to the Carrier before any Goods or documents are entrusted to the Carrier together with a statement of the value of the Goods. Upon receipt of such notices, the Carrier may agree in writing to its liability being increased to maximum liability equivalent to the amount staled in the notice in which case, ii shall be entitled to effect special insurance to cover its maximum liability and the party giving the notice shall be deemed by doing so to have agreed and undertaken to pay to the Carrier the amount of the premium payable by the Carrier for such insurance and any other incidental costs.
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20.3. Notwithstanding anything to the contrary contained in these conditions, the maximum liability of the Carrier in respect of any cause of action shall be limited to the value of the Goods or the value declared by the Customer for insurance, customs or carriage purposes, or double the amount of the Carrier’s fee (excluding disbursements) whichever amount is the lesser.
21. INSURANCE
21.1. The Customer shall at its own cost insure the Goods and Goods-in-transit (including hijack cover) against such customary risks as may be determined by the Customer in its discretion from time to time.
21.2. The Customer shall, upon the request of the Carrier, make available to the Carrier full details of any insurance in respect of the Goods, including copies of the policy document.
21.3. Where the Customer specifically requests the Carrier to effect insurance over and above the customary risk referred to in clause 21.1, the Carrier shall, if requested to do so in writing by the Customer, effect insurance on any Goods being handled by it. Any such insurance effected by the Carrier shall be subject to the usual exceptions and conditions of the policies of the insurer or underwriter taking the risk. The insurance Agreement will be between the Customer and the insurer. The Carrier shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy. Should the insurer dispute liability for any reason, the insured shall have recourse against the insurer only and the Carrier shall not be under any liability in relation thereto. The costs of any such insurance shall be for the account of the Customer, unless otherwise agreed.
21.4. The Carrier shall not be obliged to advise the Customer of any risks excluded from any policy undertaken pursuant hereto.
21.5. The Carrier shall provide at its own cost and keep in force suitable public indemnity insurance.
22. LIEN AND OTHER SECURITY
22.1. As security for all monies (whether past or present) owing for the handling of Goods, whether forming the subject matter of this Agreement or otherwise, the Carrier shall have a lien over all Goods, documents, bills of lading, import permits as well
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as all repayments, refunds, claims or recoveries in its possession or under its control.
22.2. In addition to the lien referred to in clause 22.1, the Carrier shall be entitled to hold in pledge all Goods in its possession and/or control as security for any other monies which may be owing to it by the Customer from any cause whatsoever.
22.3. Notwithstanding that credit may have originally been granted by the Carrier to the Customer, the Carrier may at any time in its sole discretion retain possession of any Goods in pledge, pending the discharge of all the Customer’s indebtedness to the Carrier, whether or not such indebtedness is related to the handling of the Goods in question, or not.
22.4. In the event of the Carrier retaining possession of the Goods in terms hereof, the Carrier shall be entitled to store or warehouse the Goods at such place as it deems fit, at the Customer’s expense pursuant to clause 12 and 13.
22.5. If any monies owing to the Carrier are not paid by the Customer within 30 (thirty) days after they have become due, the Carrier shall be entitled without further notice:
22.5.1. to open and examine the Goods, if applicable; and/or
22.5.2. to sell the whole or any part of the Goods in such a manner and on such terms and conditions as it deems fit; and/or
22.5.3. to apply the proceeds of any sale after deducting all expenses thereof in payment or reduction of any amount due by the Customer to the Carrier (including the storage charges envisaged herein), provided that any surplus shall be paid over to the Customer without interest immediately after the sale, if the Customer’s address is known, and if not, upon demand made by the Customer within 90 (ninety) days of the sale.
22.6. The Carrier shall not be liable for any loss, damage or deterioration of Goods attributable to the implementation of this clause 22.
22.7. The Carrier’s rights under this clause 22 are not exhaustive and are in addition to any other rights which it may have against the Customer.
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23. DELAY
The Carrier shall not be liable for any delay occasioned by compliance with any instructions issued by the police or any other competent authority, but any extra costs incurred by the Carrier as a result of compliance with any such instructions shall be added to its charges payable by the Customer.
24. FORCE MAJEURE
24.1. If either party (“the disabled party”) is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, riot, war, armed conflict, rebellion, accident or other acts of God or legal restraints of any relevant government, or any other event or circumstances beyond their reasonable control, then upon written notice to the other party, the provisions of the Agreement shall be suspended during the period of such disability.
24.2. The disabled party shall make all reasonable efforts to remove such disability within 30 (thirty) days of giving notice
thereof.
24.3. If any of the obligations of the Carrier are suspended as aforesaid, then during such period of suspension the Carrier shall use its best endeavours to assist the Customer in arranging to have any affected consignments of Goods transported by other means and/or other persons.
25. LABOUR RELATIONS
25.1. The Carrier shall furnish its own labour in order for it to render the Services and in order to comply with its obligations as contained in this Agreement.
25.2. Should the Carrier at any time encounter difficulties with its employees of any nature whatsoever including without limitation strikes or stoppages of any kind or should it have reason to anticipate any such difficulties then the Carrier hereby undertakes to use its best endeavours to have all such labour relations difficulties resolved at the earliest reasonable opportunity.
26. ASSIGNMENT
The rights and obligations of the Customer hereunder may not be ceded, transferred or assigned by operation of law or otherwise without the prior written consent of the Carrier. The Carrier is entitled at any time to cede, transfer and/or assign this Agreement to its successors-in-title or any other third party, provided that notice thereof is furnished to the
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Carrier.
27. FORCE MAJEURE
27.1. No Party shall have any claim against another Party (the “Nonperforming Party”), in whole or in part, for any delay or failure by the Nonperforming Party to carry out any of its obligations under this Agreement arising from or attributable to a Force Majeure Event and the Nonperforming party shall be excused from performance of its obligations under this Agreement, but only to the extent prevented by such Force Majeure Event.
27.2. Should a Force Majeure Event occur, the Nonperforming Party shall as soon as is reasonably practical, but in any event not more than 14 (fourteen) days from the date on which the Force Majeure Event occurred, furnish the other Parties with a notice to extend date for performance of its obligations, together with its reasons therefor and a reasonable estimation, in so far as practically possible, as to when performance will occur. Should the other Party dispute the extension as notified by the Nonperforming Party, the other Party shall within 14 (fourteen) days after receipt of the Nonperforming Party’s notice, notify the Nonperforming Party in writing that it disputes the request for extension, whereupon the Parties shall, forthwith, refer such dispute for determination.
27.3. As soon as the Nonperforming Party is able to resume performance of its obligations, it shall immediately give the other Parties written notice to that effect and shall resume performance as soon as practically possible after such notice is delivered.
27.4. Should the Nonperforming Party be unable to perform any of its obligations under this Agreement for a period exceeding 6 (six) months due to Force Majeure, any Party will have the right to immediately terminate the Agreement on written notice to the other Parties.
28. CONFIDENTIALITY
28.1. Notwithstanding the cancellation or termination of this Agreement, neither party (“receiving party”) shall not at any time after the conclusion of this Agreement, disclose to any person or use in any manner whatever the other party’s (“disclosing party”) confidential information or the existence and contents of this Agreement; provided that –
28.1.1. the receiving party may disclose the disclosing party’s confidential
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information and the existence and contents of this Agreement-
28.1.1.1. to the extent required by law (other than in terms of a contractual obligation of the receiving party);
28.1.1.2. to, and permit the use thereof by its sub-contractors, its employees, representatives and professional advisers to the extent strictly necessary for the purpose of implementing or enforcing this Agreement or obtaining professional advice or conducting its business, it being specifically agreed that any disclosure or use by any such sub-contractors, employee, representative or adviser of such confidential or other information for any other purpose shall constitute a breach of this clause 29 by the receiving party; and
28.1.1.3. the provisions of this clause 29 shall cease to apply to any confidential information of disclosing party which – 29.1.1.3.1. is or becomes generally available to the public other than as a result of a breach by the receiving party of its obligations in terms of this clause 29;
28.1.1.4. is also received by the receiving party from a third party who did not acquire such confidential information subject to any duty of confidentiality in favour of disclosing party; or
28.1.1.5. was known to the receiving party prior to receiving it from disclosing party.
28.2. For purposes hereof, the term “confidential information” shall mean any information disclosed by disclosing party to the receiving party prior to the conclusion of this Agreement, in terms of this Agreement or otherwise in connection with this Agreement.
29. DOMICILIUM AND NOTICES
29.1. NOTICES AND DOMICILIUM
29.1.1. For the purpose of this Agreement, including the giving of notices in terms hereof and the serving of legal process, the Parties choose their domicilium citandi et executandi (“domicilium”) as follows:
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29.1.2. The Carrier: Vanito (Pty) Ltd
Physical address:
Postal address:
E-mail:
29.1.3. The Customer:
Physical address:
Postal address:
E-mail:
29.2. Each of the Parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other physical address within the Republic of South Africa and/or its email address.
29.3. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
29.4. Any notice given in terms of this Agreement and any payment made by either Party to the other (“addressee”) which:
29.4.1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery; and
29.4.2. is transmitted by email be deemed to have been received by the addressee on the date of successful transmission thereof, unless such date falls on a day which is not a Business Day, in which case, such notice shall be deemed to have been received by the addressee on the first Business Day immediately succeeding the date of successful transmission thereof.
29.5. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to him, notwithstanding that it was not sent to or delivered at his chosen domicilium citandi et executandi.
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30. BREACH AND TERMINATION
Should any Party (“the defaulting Party”) commit a breach of any of the terms of this Agreement (all of which shall be deemed to be material) or fail to make any payment due in terms hereof, and fail to remedy such breach or make such payment within 7 (seven) days from the date of receipt by it of written notice calling upon it to remedy such breach or failure, then the Party/ies against whom such breach has been committed (‘the aggrieved Party”) shall, without prejudice to any other remedies it may have, whether under common law or in terms of this Agreement, have the right at its option to sue for due compliance by the defaulting Party with all of its obligations as detailed in this Agreement or to cancel this Agreement by notice to the defaulting Party whereupon the aggrieved Party will be entitled to proceed against the defaulting Party for recovery of such damages as it shall have sustained
31. SEVERABILITY
Each provision in this Agreement is severable from all others and if any provision, phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and clauses shall nevertheless continue to be of full force.
32. GOVERNING LAW AND JURISDICTION
32.1. The Agreement shall be governed by and construed in accordance with the laws of the RSA and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg.
32.2. Notwithstanding the aforegoing, the Customer hereby agrees in terms of section 45 of the Magistrates’ Courts Act No. 32 of 1944, as amended, that the Carrier shall at its discretion, be entitled to institute any legal proceedings which may arise out of or in connection with this Agreement in any Magistrates’ Court having jurisdiction in respect of such proceedings in terms of section 28 of that Act, notwithstanding the fact that the value of the claim or the matter in dispute may otherwise exceed the jurisdiction of such Magistrates’ Court.
33. SURETYSHIP
33.1. The Customer’s signatory hereby binds himself/herself in his/her personal capacity
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in favour of Vanito (Pty) Ltd as surety for, and co-principal debtor with, the Customer for the due performance by the Customer of all its obligations of excussion, division, cession of actions and non-causa debiti and declares that he/she knows and undertakes the meaning and effect of such renunciation.
33.2. A Suretyship Agreement is annexure hereto marked, “A” and shall be signed if the Carrier requires it.
34. GENERAL
34.1. This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter hereof.
34.2. The Customer consents to the Carrier obtaining information from a credit bureau and/or third party, in regard to ascertaining the Customer’s credit worthiness, profile, payment patterns, behaviour and suitability to be a Customer.
34.3. Neither Party shall be bound by any representation, express nor implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their representatives.
34.4. No addition to, variation, or agreed cancellation of this Agreement, including this clause, or the annexures hereto shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
34.5. No indulgence, which either Party may grant to the other, shall constitute a waiver of any of the rights of the grantor.
34.6. If any provision of this Agreement should be wholly or partly invalid, unenforceable or unlawful, then this Agreement shall be severable in respect of the provision in question (to the extent that it is invalid, unenforceable or unlawful) and the remaining provisions of this Agreement shall remain in full force and effect.
34.7. The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.
34.8. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but when taken together shall constitute one and the same Agreement.
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35. COSTS
35.1. The Carrier shall bear and pay the costs incurred in respect of the negotiation, drafting, preparation and execution of these General Terms and Conditions of Agreement up to the date of presentation hereof to the Carrier. Should the Customer require any amendments hereto, the Customer shall bear and pay all costs incurred by both it and the Carrier in instructing appropriate legal advisors (on an attorney and own client scale) which costs shall be payable on demand.
35.2. All costs, charges and expenses of every nature whatever which may be incurred by the Carrier in enforcing its rights in terms of the Agreement, including, without limiting the generality of the aforegoing, legal costs on the scale as between attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable from the Customer when such rights are successfully adjudicated and/or enforced.
35.3. The Customer acknowledges that the Customer has read the terms and conditions of this agreement and that the Customer understands the contents herein and agrees to be bound to these terms and conditions.
