GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
In these trading terms and conditions:
1.1 the headings to the clauses are for reference purposes only and shall not aid in the interpretation of the clauses to which they relate;
1.2 unless the context clearly indicates a contrary intention, words importing any one gender include the other two genders, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporate) and vice versa;
1.3 the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have a corresponding meaning, namely -
1.3.1 "TSI" shall mean Transport Shinaji International (Pty) Ltd
1.3.2 "The Customer" shall mean:
1.3.2.1 any person at whose request or on whose behalf TSI undertakes any business or provides any advice, information or services;
1.3.2.2 any person who accepts TSI's quotation;
1.3.2.3 any person who contracts with TSI;
1.3.3 "The company" shall mean TSI;
1.3.4 "goods" shall mean any goods handled, transported or dealt with by or on behalf of or at the instance of the company or which come under the pallet, package or any other form of covering, packaging, container or equipment used in connection with or in relation to such goods;
1.3.5 "Own Vehicles" shall mean those vehicles owned by the customer or contractors employed by the customer;
1.3.6 "Person" shall have its ordinary meaning and shall include a body corporate;
1.3.7 "Law" includes the Common Law, Statute, Ordinance, By-Laws or Regulations;
1.3.8 "Sub-Contractor" shall mean any person with whom TSI sub-contracts to carry out Transportation of goods on the customer's behalf;
1.3.9 "Transportation" shall mean, without restricting the generality of this term, conveyance, loading , off-loading ,packing (when necessary), striping and/or safe keeping of any goods and the acquiring of permits, authorities and the like.
2. APPLICABILITY OF CONDITIONS
2.1 The terms and conditions of this agreement together with any addendum thereto shall govern the relationship between TSI and the customer in each and every contract between them, including contracts entered into subsequent to the contract formed by the customer's acceptance of TSI's quotation and whether or not the customer's attention has been specifically drawn to these conditions as being applicable to the contract governing their relationship.
2.2 No warranty or representation other than as is herein expressly contained shall be of any force and effect against TSI unless the same is contained in writing and signed for and on behalf of TSI.
2.3 No amendment, variation or consensual cancellation of any contract shall be of any force and effect unless such amendment, variation and/or consensual cancellation is reduced to writing and signed by TSI.
3. WHOLE CONTRACT
No course of conduct other than agreement in writing singed by TSI shall constitute a variation or novation of a contract or a waiver or estoppel of TSI's rights thereunder.
4. CONDITIONS
TSI shall only be obliged to perform provided that:
4.1 TSI in its sole opinion has received sufficient notice and information of the customer's requirements to enable it to properly carry out the Transportation and to ensure that a suitable and appropriate vehicle is available.
4.2 The necessary consents and statutory permits have been granted and remain in force. In the event of such consents or permits being refused or shall otherwise attach to TSI.
4.3 The customer is not in breach of any terms or conditions of this contract or any other contract concluded with TSI.
4.4 TSI is satisfied to the customer's solvency and ability and readiness to pay for the services to be rendered in terms of a contract within the time and in the manner therein prescribed.
4.5 It is not impossible, impractical or dangerous for TSI to comply with its obligations as a result of riots, strikes. lock-outs , labour disturbances or , breakdown in vehicle or equipment , commercial exigencies , or any other cause whatsoever beyond its reasonable control.
5. SUSPENSION OF PERFORMANCE
Whilst any of the conditions referred to in clause 4 above remain unfulfilled , TSI shall be entitled to refuse or suspend performance without being liable in any manner whatsoever to the customer or to any person whatsoever , and without prejudice to TSI's rights to recover monies then due to it in respect of services already performed by it.
6. LIABILITY
6.1 TSI shall not be liable to the customer , owner of the goods or any person whatsoever for any loss and/or damages of any nature whatsoever (including consequential loss and/or damage) howsoever caused which the person aforesaid may suffer as a result of the performance of such services by the Sub-Contractor and/or its employees and/or its agents notwithstanding that such loss and/or damage may have been caused by negligence of the Sub-Contractor and/or TSI and/or its employees and/or its agents by the breach of contract by TSI and/or the Sub-Contractor.
6.2 The customer indemnifies TSI and/or the Sub-Contractor against any claim by itself to other persons in respect of liability hereby excluded, it being expressly acknowledged that the goods are carried at the customer's risk.
7. CUSTOMER WARRANTIES AND INDEMNITIES
7.1 The customer warrants and represents that:
7.1.1 The goods are the customer's sole and exclusive property and/or that the customer has the full and absolute authority of the persons owning or interested in the goods to enter the contract;
7.1.2 The Transportation of the goods as contracted for with TSI does not contravene any law;
7.1.3 No dangerous goods shall be tendered to TSI for placing with it and/or TSI's Sub-Contractor without TSI's express consent in writing that it has disclosed to TSI all material information pertaining to Transportation and which may affect TSI's decision in agreeing to transport the goods for and on behalf of the customer;
7.2 The customer hereby indemnifies TSI and/or its Sub-Contractor against all liability and any claims whatsoever by any person whatsoever for:
7.2.1 Any loss or damage to goods or persons or life from whatsoever cause and for non-delivery and/or mis-delivery on grounds of breach of contract and/or negligence;
7.2.2 Any liability for loss or damage on grounds of breach of contract and/or negligence howsoever arising;
7.2.3 Any loss or damages arising from loss of market or attributable to delay in forwarding or in transit or failure to carry out fully or in part thereof any instructions given to it for any other consequential loss howsoever arising;
7.2.4 All legal costs incurred by TSI in resisting such claims , such costs to be determined on the scale as between attorney and one/s own client;
7.3 The customer warrants the accuracy, without exception, of all information and specifications given by or on its behalf to TSI;
7.4 Except where TSI is instructed in writing to pack the goods, the customer warrants that all goods have been properly and sufficiently packed and/or prepared.
8. INSURANCE
8.1 The company shall endeavour to effect any insurance the customer timeously and in writing instructs it to effect.
8.2 Such insurance will be subject to such exceptions and conditions as may be imposed by the insurance company or underwriter taking the risk and the company shall not be obliged to obtain separate cover for any risks so excluded. Unless otherwise agreed in writing the company shall not be under any obligation to obtain separate insurance in respect of separate consignments but may insure all or any of such consignments under any open or general policy held by the company from time to time.
8.3 Should any insurer dispute its liability in terms of any insurance policy in respect of any goods, the customer concerned shall have recourse against such insurer only and the company shall not have any responsibility or liability whatsoever in relation thereto notwithstanding that the premium paid on such policy may differ from the amount paid by the customer to the company in respect thereof. Insofar as the company agrees to arrange insurance the company acts solely as agent for and on behalf of the customer.
9. COMPANY'S OBLIGATIONS IN THE ABSENCE OF INSTRUCTIONS
Unless specific written instructions are timeously given to and accepted by the company, the company shall not be obliged to-
9.1 make any declaration for the purpose of any statute, convention, or contract, as to the nature or value of any goods or as to any special interest in delivery. In particular, the company shall be under no obligation to make any declaration or to seek any special protection or cover from any carrier in respect of any goods, which are, or fall within the definition ascribed thereto by that body of dangerous goods or other goods, which require special conditions of handling or storage;
9.2 arrange for any particular goods to be carried, stored or handled separately from other goods.
10. PRESCRIPTION OF CLAIMS
Without limiting and without prejudicing the provisions of these conditions (and in particular clause 6 and 7 ) the customer shall notify TSI of any loss , damage , complaint or claim within 24 (twenty four) hours from the time of off-loading , or in case of late delivery and non-delivery of the goods , within 24 (twenty four) hours from the scheduled time of off-loading and shall confirm such notification in writing to be received by TSI within 72 (seventy two) hours of such off-loading or scheduled time of off-loading , as the case may be , failing which , any claim arising therefrom shall ipso facto lapse and be unenforceable.
11. PAYMENT WITHOUT DEDUCTION
Notwithstanding any such notification of claim as set forth in this agreement, the customer shall pay TSI the full amount stated on TSI's invoice on due date without any deduction or set set off and without prejudice to the customer's rights contended for against TSI in respect of any such claim the customer shall not be entitled to deduct or set off any monies which it owes to the TSI against any monies which it contends are due to it by either TSI and/or Sub-Contractor.
12. STIPULATION FOR THE BENEFIT OF TSI
The stipulations contained in clause 6 and 7 are for the benefit of TSI and of any person for whose acts and/or omissions TSI is or may be in law liable and of any person who may perform any of TSI's obligations.
13. VALIDITY OF QUOTATIONS
Quotations shall remain open for acceptance by the customer for a period of 30 (thirty days) from the date thereof, which acceptance shall be communicated in writing to TSI and if not accepted during such period, shall automatically lapse.
14. QUOTATIONS DATA
All quotations are subject to the conditions contained herein. Quotations are based , inter alia on quantities , densities , dimensions , mass , properties , other technical data , loading and off-loading hours and other information supplied by the customer and are accepted by TSI in good faith under representation by the customer. Any variance therefrom shall entitle TSI to require the freight quoted to be adjusted to take into account such variance , or to suspend performance, or to cancel the contract , without thereby incurring any liability whatsoever and in the event of any such damages as TSI may have suffered. Quotations are subject to:
14.1 Work being carried out by the methods and the route to decided by TSI without interruption , hindrance or postponement;
14.2 The availability of Sub-Contractor's vehicles and/or staff on the dates required;
14.3 Any increase in TSI’s costs coming into force after the date of the quotation over which TSI has no control will be for the Customer’s account;
14.4 Any delay due to interruption, hindrance, local traffic, municipal regulation or non-production of necessary licenses, permits or customer forms which will be charged to the Customer;
14.5 Where the volumes, quantities or scopes of work have increased over what have been quoted for, the Customer will be charged for any additions on a pro rata basis;
14.6 A charge increase should there be a change of route due to reasons beyond TSI's and/or Sub-Contractor's control;
14.7 Any postponement or cancellation by the Customer entitles TSI to make a charge to cover the expenses incurred and/or losses to TSI arising there from;
14.8 TSI shall have the right to increase the charge specified in the event of stoppages or delays in the carrying out of the work to which the Contract relates provided that such stoppages or delays are caused by circumstances beyond the control of TSI and/or it's Sub-Contractor are such that TSI and/or its Sub-Contractor could not reasonably foresee or prevent the cause of such stoppages or delays arising.
15. GOODS
The goods payable to TSI by the Customer for the Transportation of the Goods shall be the charge agreed between TSI and the customer shall be subject to variation as provided for in clause 10, 13, 15 and 16.
16. ADDITIONAL CHARGES
Subject to paragraph 14 above, and in addition to the charge agreed, TSI shall be entitled to levy an additional charge at its usual rate, alternatively reasonable rate, in the event of;-
16.1 The circumstances envisaged in clauses 21, 22, 23, 27 and 28 occurring; or
16.2 The time taken to load or off-load a vehicle exceeding the maximum time allowed in terms of clauses 22 and 23; or
16.3 Loading and off-loading taking place at more than one point; or
16.4 TSI and/or its Sub-Contractors being obliged, due no circumstances beyond ifs control, to utilize routes different from those intended by it at the time of entering into the Contract.
17. PAYMENT
Subject to paragraph 11 above, payment shall be received in full, free of any commission, exchange, brokerage, deduction or set-off, within 30 (thirty) days of dale of statement by TSI which may appropriate all monies paid entirely within its sole and unfettered discretion. The Customer shall not be entitled to deduct from or set-off against such payments any claims which the Customer may have against TSI arising from any cause whatsoever. Notwithstanding that TSI may agree to collect and/or receive payment from a third party, the Customer hereby acknowledges that the Customer is personally bound by the provisions of the Contract, and the Customer hereby guarantees payment of the charges and other charges by such third party to TSI. There will be no valid discharge of the obligation to pay TSI by the Customer unless payment has been made to TSI and to no other Person whomsoever. TSI is entitled to levy an interest charge against the Customer at the rate of 2% (two per centum) per month on all amounts which are outstanding and are unpaid by the Customer.
18. CONDITIONS OF GOODS
The onus of establishing the condition of the Goods at the time of delivery to TSI and/or its Sub-Contractor shall at alI times remain on the Customer, and no delivery note, receipt, or other document given at such time by the Sub-Contractor to the customer shall constitute proof of such condition, save to the extent that any specific record in relation thereto may have been made thereon by TSI.
19. RESPONSIBILITY FOR LOADING AND OFF-LOADING
19.1 TSI and/or the Sub-Contractor shall not be responsible for any loss or damage arising from the loading and oft-loading of the vehicles and the Customer indemnifies TSI and/or the Sub-Contractor against any claims which may be brought against TSI and/or the Sub-Contractor arising out of such loading, off-loading, overloading, unsafe loading or out of the nature of any defect in the Goods concerned, unless agreed to the contrary in writing (including insurance therefore).
19.2 The customer’s employees must assist with the loading and off-loading and such assistance shall be rendered at the sole risk of the Customer without any liability for any loss or damage arising therefrom attaching to TSI and/or the Sub-Contractor unless agreed to the contrary.
20. LOADING AND OFF-LOADING FACILITIES
20.1 The Customer undertakes:
20.1.1 To provide or procure the provision of safe and adequate labour and equipment for loading and off-loading and safe, convenient and adequate loading and off-loading points and access to any such loading and off-loading points;
20.1.2 To ensure that loading and off-loading will be possible at the agreed points during such hours and days as the parties have agreed;
20.1.3 To ensure that all Goods loaded shall be in such condition as to enable due loading to be freely effected at the point loading;
20.1.4 To ensure that all Goods loaded shall be in such condition as to enable due off-loading to be freely effected at the point of off-loading;
20.2 The customer shall advise if any Goods require special appliances for loading or off-loading of the vehicle.In the event of TSI not having been advised , any costs of any nature and howsoever arising for the acquiring of special appliances shall be for the cost of the customer.
21. DELAYS AND DAMAGES
21.1 In the event of a vehicle being delayed due to the Customer’s failure to comply with the provisions of clauses 19 and 20, the Customer shall be liable for additional charges at TSI's standing time rate which shall be communicated to the customer from time to time.
21.2 The Customer shall be responsible for and shall compensate TSI in respect of all or any damage sustained by it to any of the Sub-Contractor's vehicles, should any of the Sub-Contractor's vehicles or any portion thereof, or any of the Sub-Contractor’s equipment be damaged as a consequence of any act or omission of the customer.
22. LOADING TIME
The maximum loading time allowed to the Customer shall be 2 hours or as stipulated on the quotation unless otherwise agreed to in writing by TSI. Loading time shall be deemed to commence at the time when the vehicle to be loaded arrives at the entrance to the property on which the loading point is situated.
23. OFF-LOADING TIME
The provision of clause 22 shall apply mutatis mutandi to off-loading time.
24. DELIVERY DETAILS
After completion of loading the Customer shall verify the correctness of all the details contained in the Customer’s delivery documents.
25. DELIVERY AND OFF-LOADING (IN THE EVENT OF CUSTOMER USING its OWN VEHICLES)
In the event of the Customer using its own vehicles , the customer shall ensure, prior to the Goods being off-loaded, that the Goods to be off-loaded are the precise Goods which are contracted to be off-loaded, that during off-loading clear and precise off-loading and delivery instructions are given, that the Goods are off-loaded at the correct place and/or off-loading point, and that immediately after off-loading the Goods off-loaded comprise the correct quantity and are in good order and condition.
26. COMPLETION OF OFF-LOADING
Goods left on the Sub-Contractor’s vehicle/s for any reason to suit the convenience of the Customer are held at the sole risk of the Customer , as the case may be. Pending forwarding and delivery, Goods may be warehoused or otherwise held at any place/s at the sole discretion of TSI or the Sub-Contractor, at the Customer’s risk and expense.
27. DEMURRAGE
TSI shall not be liable for demurrage or storage charges of any nature, howsoever arising, levied by third parties, and where paid by TSI, shall be returned to TSI by the Customer on demand. The Customer does hereby appoint TSI irrevocably and in rem suam as its agent in its place and stead to contract for the storage of such Goods upon such terms and such conditions as TSI may, in its discretion, elect and without any liability whatsoever attaching to TSI to attend to such storage.
28. CANCELLATION OF REOUEST FOR VEHICLE
The Customer shall be entitled to cancel a request for a vehicle to carry out a particular service in terms of a Contract, provided that the Customer gives TSI no less than 48 (forty eight) hours notice of cancellation (Saturdays, Sundays and Public Holidays excluded), prior to the time of despatch of the vehicle schedules by TSI, failing which the Customer shall be liable to pay TSI’s usual, alternatively reasonable additional charges up to a maximum period of 48 (Forty eight) hours.
29. BREACH OF CONTRACT BY TSI
Should TSI breach any terms or conditions of a Contract, the Customer shall give TSI written notice to remedy such breach within 14 (fourteen) days of receipt thereof, and only in the event of TSI tailing to comply therewith, shall the Customer be entitled to cancel the Contract on written notice to TSI.
30. DUTIES AND TAXES
The Customer shall be liable for any duty, tax, imports or outlays of whatsoever nature levied by the authorities at any post or place for or in connection with the Goods, and for any payments, fines, expenses, loss or damage incurred or sustained by TSI or the Sub-Contractor in connection therewith.
31. LIEN
31.1 (i) TSI shall have a lien over all Goods as security for all monies owing; (ii) In addition, TSI shall be entitled to hold all Goods as security for any monies which have been due and payable to it by the Customer from any cause whatsoever;
31.2 If say monies owing are not paid within 30 (thirty) days after they become due, TSI shall be entitled without further notice to the Customer:-
(i) To open and examine any part of the consignment;
(ii) To hold any part of the consignment in such manner and upon such terms and conditions as it deems fit;
(iii) To sell the Goods over which TSI has a lien, and to apply the proceeds of any such sale after deducting all expenses thereof in payment or deduction of any amount due by the Customer to TSI, provided that any surplus is to be paid over the Customer, without interest, as soon as possible after the sale it the Customer’s address is known, or it not, upon demand by the customer;
31.3 Upon payment or tender of the proceeds of any such sale, TSI shall be released from all liability to the Customer in respect of the Goods;
32. GENERAL
32.1 ‘TSI may cede, delegate and/or assign and/or sub-contract any or all of its rights and/or obligations under a Contract;
32.2 These conditions shall apply to any other additional work and/or transport carried out for and on behalf of the Customer, whether or not the Customer’s attention has been specifically drawn to these terms and conditions as being applicable to the contract governing the relationship. It shall therefore be construed that the Customer has agreed that all the terms and conditions herein contained shall apply to all future and/or additional transport work carried out for and on behalf of the Customer by TSI and/or the Sub-Contractor.
32.3 TSI shall be entitled at any time, by notice to the Customer, to cancel or resile from any quotation or executory agreement in circumstances where it becomes impracticable or uneconomical for TSI to carry out the contract, and the customer shall have no claim whatsoever against TSI for any loss the Customer might incur as a result of TSI cancelling;
32.4 The parties hereby consent to the jurisdiction of any Magistrate’s Court having jurisdiction over the Customer should TSI in its sole and unlettered discretion elect to institute any action arising out of a Contract against the Customer in such Court, notwithstanding that TSI’s claim may exceed the ordinary jurisdiction of such Court;
32.5 All Contracts shall be interpreted and governed by the Laws of the Republic of South Africa in their entirety. This Contract shall be deemed to have been entered into the Republic of South Africa;
32.6 Each of the terms hereof is severable from the rest of the terms contained herein which terms shall remain of full force and effect, should any one term be found to be invalid for any reason, or, without limiting the generality hereof, contra bones mores;
32.7 No act, omission, course of dealing, forbearance, delay or indulgence by TSI in enforcing any of these conditions or any elite rights in terms thereof, on any granting of time by TSI, shall prejudice or elect the rights and remedies of TSI under these conditions and to such matter shall be treated as any evidence of waiver of any subsequent breach thereof, or as estoppel against it. TSI shall at all times, and without notice be entitled to insist on strict application of these conditions and on their strict enforcement thereof by the Customer;
32.8 The Customer selects as its domicilum citandi et executandi for all purposes hereunder at its place of business as reflected on its invoices, delivery notes and letterheads;
32.9 TSI selects as its at domicilum citandi et executandi at the address that appears on the face hereof.