Terms & Conditions

NM FREIGHT LOGISTICS (PTY) LTD STANDARD TRADING TERMS AND CONDITIONS

1. DEFINITIONS

In these trading terms and conditions, the following words shall bear the meanings assigned to them below:

1.1. “The Company” shall mean NM Freight Logistics (Pty) Ltd, Registration number 2012/225853/07, and includes the Company’s servants and agents and any persons carrying any goods forming the subject matter of this contract under an interim’s of a sub-contract with the Company, or if it exercises its rights under clause 2 hereunder, the member of the group in respect of which it exercises its rights.

1.2. “The Customer” shall mean the party reflected on the dispatch documents as the sender of the goods, whether acting on his own behalf or in his capacity as agent or in any other capacity for a third party, or any other person at whose request or on whose behalf the Company undertakes any business or provides any advice, information or service.

1.3. “The 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 control of the Company or its agents, servants or nominees on the instructions of the Customer, and includes any container, transportable tank, flat pallet, package or any other form of covering, packaging, container or equipment used in connection with or in relation to such goods.

1.4. “The Owner” shall means the owner of goods to which any business concluded under these trading terms and conditions relates and any person who is, or may have, or require any interest, financial or otherwise, therein.

1.5. “Dangerous goods” shall include those classified as such by Spoornet, the Marine Division of the Department of Transnet, as defined by the Department of Transport, SANS10228, Classification of Dangerous Goods, or as contemplated in Section 53(1)(d) of the Consumer Protection Act 68 of 2008.

1.6. “The handling of the goods” shall include the goods being handled, warehoused, transported, held, controlled, loaded or unloaded, carried, or otherwise possessed by the Company for any purpose whatsoever.

2. MEMBERS OF THE GROUP RENDERING THE SERVICES TO THE CUSTOMER

The Company may at its election perform all and any business undertaken or provide advice, information or services, whether gratuitous or not, either itself or it may procure that any member of the Group undertakes such business or provide such advice, information or services as principal upon and subject to the terms and conditions contained herein, which shall apply to the Customer and any such member of the Group. This clause applies to any subcontractors used by the Company in terms of clause 20 hereof as set out hereunder.

3. NO VARIATION OF CONDITIONS

This agreement shall be subject to the conditions stated herein unless specifically varied by both parties in writing, and these conditions shall at all times take precedence over any terms, conditions or stipulations contained in any of the Customer’s documentation. Should the Customer in any way purport to attach any conditions which vary, amend or are in conflict with the conditions set forth herein, then, notwithstanding anything to the contrary stipulated by the Customer, the conditions set forth herein shall prevail and be of full force and effect unless specifically varied in writing with specific reference to the Customer’s contrary documentation.

4. REMUNERATION

4.1. In the absence of any written agreement to the contrary, the remuneration payable to the Company by the Customer will be in accordance with the tariffs as quoted by the Company.

4.2. The Company’s tariffs are subject to review by the Company with prior notice to the Customer.

4.3. The Customer shall be liable for any duty, tax, fine or outlay of whatsoever nature levied by the authorities of any port or place in connection with the Goods and shall reimburse the Company for any such amount disbursed or losses sustained by the Company in connection therewith.

4.4. In the event of the Company being obliged to take out or obtain any license or permit, or to comply with the requirements of any lawful authority, the Company shall be entitled to charge an additional fee to cover any expenses resulting there from not already included in the Company’s standard tariffs.

4.5. In the event of the Company 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 Company shall be entitled to charge an additional remuneration in proportion to the result in extra distance travelled, without notice to the Customer.

4.6. The Company shall incur no liability in consequence of the fact that there may be a change in the amount in duty, wharf age, freight, railage or cartage, or any other tariff, before or after performance by the Company of any act involving the less favourable rate or tariff by virtue of the fact that a saving might have been affected in some way, had any act been performed at a different time.

4.7. The tariffs charged by the Company are subject to escalation from time to time on notice to the Customer.

5. PAYMENT OF REMUNERATION

5.1. In the absence of any special provisions to the contrary, and in particular any specific terms upon which the credit was granted, payment shall be effected by the Customer within 30 (THIRTY) calendar days from date of statement by either an electronic funds transfer (“EFT”), cheque or by debit order.

5.2. Within 48 hours from making a payment, the Customer is to submit a remittance advice to the Company, indicating how the payment is to be allocated, failing which, the Company 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 Company, irrespective of when such debt or obligation arose.

5.3. Interest will accrue on all payments not made on due date at the prime lending rate utilized by the Company’s bankers, calculated from the due date for payment to the date on which payment is affected.

5.4. 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 counterclaim which it may wish to raise against the amount invoiced by the Company.

6. DEBTING FEES AND DISBURSEMENTS  

The Company shall be entitled to raise a tax invoice and/or a debit note and obtain payment in respect of any fee or disbursement incurred by it.

7. CONDITION OF GOODS

The onus of proving the quantity, type, physical properties and composition and the condition of the Goods and/or the condition of any container at the time of receipt thereof by the Company shall at all times remain with the Customer, and no delivery note, receipt or other documentation furnished or signed at such time, by or on behalf of the Company, shall constitute conclusive proof thereof.

8. DANGEROUS GOODS

8.1. 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.

8.2. Unless otherwise agreed in writing, the Company will not handle any dangerous, corrosive, noxious, hazardous, inflammable or explosive goods or any Goods, which in its opinion are likely to cause damage.

8.3. The Customer shall be liable for all losses or damage caused to the Company or a third party by all Goods handled, and hereby indemnifies the Company against any claims arising in connection therewith.

8.4. Should the Company agree to handle any Dangerous Goods for any purpose:

8.4.1. The Customer shall furnish with the Goods, a written declaration detailing the trade name, chemical composition and characteristics of the Goods.

8.4.2. 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.

8.4.3. If, in the opinion of the Company, any Goods, (whether they have been declared as dangerous or not) become a danger to any person or property, the Company shall be entitled immediately and without notice to the Customer to dispose of the Goods in question or take such other steps as at, in its sole discretion, it deems prudent to advert danger. In such event the Company shall:

(i) Not be liable under any circumstances whatsoever for the value of the Goods or for any other loss, sustained by the Customer as a result of such disposal; and

(ii) Still be entitled to recover from the Customer its remuneration for the handling of the Goods together with any costs incurred by its indisposing of them or taking other steps.

9. LOADING AND OFF-LOADING

9.1. The Customer shall ensure that the Goods shall be ready for loading on the date specified and all documentation necessary in connection with the Goods and the transportation thereof shall be fully and correctly prepared.

9.2. The Customer shall also ensure that, of all places where the Company is to collect and 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 Company to do so by means of ordinary staircases and/or doorways, without need for any special or additional tackle, plant, power, labour or equipment.

9.3. The Customer shall ensure that the Goods will be sufficiently packed and prepared for carriage.

9.4. The Customer shall sign such certificates and receipts on loading and off-loading as the Company may require.

9.5. The Company shall not be under any obligation to provide any plant, power or labour which, in addition to its vehicle crew, is required for the loading and off-loading of any Goods. Any assistance given by the Company in such loading or offloading shall be at the sole risk of the Customer.

9.6. If delivery of any Goods is not accepted by the Customer, consignee or party nominated by the Customer at the appropriate time and place, then:

9.6.1. The Company shall be entitled to store the Goods or any part thereof at no risk to the Company and at the expense of the Customer.

9.6.2. The provisions of clause 10 hereof shall apply hereto.

10. QUOTATIONS

10.1.   Quotations are based, amongst other things, on quantities, dimensions, mass, and other information supplied by the Customer and are accepted by the Company in good faith under representation by the Customer. Any variance there from shall entitle the Company to require that the tariff as quoted to be adjusted to take into account such variance.

10.2.   The Company shall be entitled at any time, by notice to the Customer, to cancel or resile from any quotation or executor agreement in circumstances where it becomes impractical or uneconomical for the Company to carry out the contract at the quoted rate and the Customer shall nave no claim whatsoever against the Company for any loss the Customer might incur.

11. CUSTOMER WARRANTEES AND UNDERTAKINGS

The Customer is bound by and warrant in favour of the Company:

11.1.   The accuracy of all descriptions, value and other particulars furnished to the Company for customs, railage and other purposes. The Customer indemnifies the Company against all expenses, claims or fines arising from any inaccuracy or an omission of descriptions, values or other particulars (even if the inaccuracy or omissions of descriptions, values or any other particulars occurs without negligence).

11.2.   That the carriage of Goods will not violate or infringe any Act, regulation or law and the Customer hereby indemnifies and hold the Company harmless against any claims and/or damages, which the Company may suffer by virtue of the Customer’s breach of this warranty.

11.3.   That the Goods are the Customer’s sole property, alternatively, the Customer is authorised by the person owning the Goods to enter into this contract subject to these terms and conditions, and the Customer hereby indemnifies the Company against any claim of any nature made by the owner in relation to the Goods.

11.4. That in authorising the Customer to enter into any contract with the Company and/or in accepting any document issued by the Company in connection with such contract the owner, sender or consignee is bound by these trading terms and conditions for itself and its agents and for any parties for whose benefit it or its agents may act, and in particular, but without prejudice to the generality of the aforegoing, it accepts that the Company shall have the right to enforce against them, jointly and severally, any liability of the Customer under these trading terms and conditions or to recover from them any sums to be paid by the Customer, which upon proper demand have not been paid.

11.5. All goods will be properly, adequately and appropriately prepared and packed, labeled and marked, having regard to, amongst other things, the implementation by or on behalf of the Company, or at its instance of the contract involved and the characteristics of the Goods involved and are capable of withstanding the normal hazard inherent in the implementation of such contract.

11.6.   Where Goods are carried in or on containers, or any other unit load devices specifically constructed for the carriage of Goods by land or air (each such device hereinafter individually referred to as the transport unit) then, the Customer warrants:

11.6.1. That the transport unit has been properly loaded;

11.6.2. That the Goods involved are suitable for carriage in or on the transport unit; and

11.6.3. That the transport unit is itself in a suitable condition to carry the Goods loaded therein and complies with the requirements of all relevant transport authorities and carriers.

12. PERMITS AND CONSENTS

If any permit, consent or approval to handle Goods is required by law or regulation, none of the Company’s obligations or duties shall take effect unless, and until it obtains the relevant permit, consent or approval. The Customer shall provide all assistance and information required by the Company for the purpose of applying for, or obtaining any such permit, consent or approval.

13. DELAY

The Company shall not be liable for any delay occasioned by compliance with any instructions issued by the police or any competent authority, but any extra charges and costs incurred by the Company as a result of compliance with any such instruction shall be added to its charges to the Customer.

14. WAREHOUSING

Pending forwarding and/or delivery by, or on behalf of the Company, Goods may be warehoused or otherwise held at any place as determined by the Company in its absolute discretion at the Customer’s expense.

15. CLAIMS

Without limiting and without prejudicing the provisions of these conditions the Customer shall notify the Company of any loss, damage, complaint or claim within 24 (TWENTY-FOUR) hours from the off-loading, or in the case of late delivery or 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 the Company within 72 (SEVENTY-TWO) hours of such off-loading or scheduled time of off- loading, as the case may be

16. GOODS IN TRANSIT INSURANCE

16.1.   The Company shall, effect insurance on Goods being handled by it, being Goods in Transit Insurance (“GIT”) limited to R500 000.00 (FIVE HUNDRED THOUSAND RAND) per consignment. Any such GIT insurance effected by the Company shall be subject to the usual exceptions, limitations and conditions of the policy of the insurer or underwriter accepting the risk. The Company 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 Company shall not be under any liability in relation thereto;

16.2.   GIT insurance will not cover any loss or damages sustained as a result of a direct consequence of the unlawful and intentional misconduct and negligence of the Customer;

16.3.   The Companies risk towards Goods in Transit insurance is limited to a maximum of R500 000.00 (FIVE HUNDRED THOUSAND RAND) or the value of the Goods as declared to SARS as per the relevant customs documentation, which ever amount is the lowest.

18. PERISHABLE GOODS

The Company will not be held liable or responsible in any event whatsoever for any damage to or contamination of any perishable Goods transported by the Company.

19. DEMURRAGE

The Company shall not be liable for the demurrage or storage charges of any nature whatsoever and howsoever arising. Where any such demurrage and/or storage charges shall be refunded to the Company, such charges shall be refunded to the Company by the Customer on demand. The Customer hereby appoints the Company irrevocably as its agent and its name, place and stead, to contract for the storage of the Goods upon such terms and conditions as the Company may, in its sole discretion, elect and Company shall take reasonable steps to inform such Customer of such events and circumstances and to seek further instructions. If such further instructions are not timeously received by the Company, in writing, the Company shall, at its sole discretion, be entitled to detain, sell, abandon or destroy all or part of the goods concerned at the risk and expense of the Customer.

20. SUB-CONTRACTING

The Company reserves the right to employ sub-contractors to act for it and on its behalf. The Company will be responsible for the payment of the sub-contractors charges.

21. CARRIER’S LIEN

21.1.   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 Company shall have a lien over all Goods, documents, proof of deliveries, delivery notes, bills of lading, import permits as well as all repayments, refunds, claims or recoveries in its possession or under its control.

21.2.   In addition, the Company shall be entitled to hold all Goods as security for any other monies, which may be owing to it by the Customer from any cause whatsoever.

21.3.   Notwithstanding that credit may have originally been granted by the Company to the Customer, the Company may at any time, in its sole discretion, retain possession of any Goods pending the discharge of all the Customer’s indebtedness to the Company, whether or not such indebtedness is related to the handling of the Goods in question.

21.4.   In the event of the Company retaining possession of the Goods in terms of 21.1 and/or 21.2 and/or 21.3, the Company shall be entitled to store or warehouse the Goods at such place as it deems fit, at the Customer’s expense.

21.5.   If any monies owing to the Company are not paid by the Customer within 30 (THIRTY) calander days after they have become due, the Company shall be entitled without further notice:

21.5.1.  to open and examine the Goods;

21.5.2.  to sell the whole or any part of the Goods in such a manner and on such terms and conditions as it deems fit;

21.5.3.  to apply the proceeds of any sale after deducting all expenses thereof in payment or deduction of any amount due by the Customer to the Company (including the storage charges envisaged in 21..4), 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 ninety days of the sale.

21.6.   The Company shall not be liable for any loss, damage or deterioration of such Goods attributable to such Goods attributable to the implementation of this paragraph.

21.7.   The Company’s rights under this clause 21 are not exhaustive and are in addition to any other rights, which it may have against the Customer.

22. COMPANY’S DISCRETION IN THE ABSENCE OF INSTRUCTIONS

In the absence of specific instruction given timeously in writing by the Customer to the Company:

22.1. It shall be the reasonable discretion of the Company to decide at what time to perform or procure the performance of any or all the acts, which may be necessary or requisite for the discharge of its obligations to the Customer.

22.2. The Company shall have an absolute discretion to determine the route and procedure to be followed by it in performing all or any of the acts or services it has agreed to perform.

22.3. Notwithstanding anything to the contrary herein contained, if at any time the Company should consider it to be in the Customer’s interest or for the public good to depart from any of the Customer’s instructions, the Company shall be entitled to do so and shall not incur any liability in consequence of doing so.

22.4. If events or circumstances come to the attention of the Company, its agents, servants or nominees which, in the opinion of the Company, make it in whole or in part impossible or impractical for the Company to comply with the Customer’s instructions, the

23. 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:

23.1.   Make any declaration for the purpose of any statute, convention or contract as to the nature or value of any goods or as per 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.

23.2.   Arrange for any particular Goods to be carried, stored or handled separately from other Goods.

24. SOLE AGREEMENT

The terms and conditions of the relevant division of the Company do not constitute the sole record of the agreement between the parties. The parties shall be bound by all other express or implied terms, conditions, representations, warranties or promises or the like as may be agreed upon between the Company and the Customer.

25. INDULGENCE AND WAIVER

Any relaxation, indulgence or delay (collectively referred to as “Indulgence”) by either party in exercising, or any failure by either party to exercise, any right under this agreement shall not be construed as a waiver of that right and shall not affect the ability of that party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against that party or any other person).

26. APPLICABLE LAW

26.1.   This Agreement is governed by the law of the Republic of South Africa, and accordingly, any dispute about this Agreement, including any dispute about its validity, existence, interpretation, rectification, breach or termination or any dispute about any matter arising out of this agreement, shall be determined according to the laws of the Republic of South Africa.

26.2.   The parties consent to the jurisdiction of the Magistrates Court notwithstanding that any claim may exceed the ordinary jurisdiction of the Magistrates Court.

27. DISPUTES

In the event of any dispute, both parties shall be obliged to perform their obligations in terms of this agreement, pending the resolution of the dispute, and the Customer shall not be entitled to withhold payments of any amount by reason of any dispute with the Company.

28. BREACH

28.1. Both parties agree and acknowledge that in the event of:

28.1.1.     either party breaching any of the terms of this agreement;

28.1.2.     the Customer failing to pay any amount due and payable on due date;

28.1.3.     the Customer suffering any civil judgment to be taken or entered against it;

28.1.4.     the Customer causing a notice of surrender of his estate in terms of the Insolvency Act 24 of 1936, as amended;

28.1.5.     the Customer dying;

28.1.6.     the Customer’s estate being placed under any order of provisional or final sequestration, winding up or judicial management, as the case may be:

28.2.   Then the entire amount owing by the Customer to the Company shall immediately become due and payable, and:

28.2.1.     the Company shall, without detracting from any other remedies which may be available to it, in the event of circumstances contemplated in this clause 28 be entitled to summarily cancel this agreement without notice to the Customer, or to claim specific performance of all the Customer’s obligations whether or not otherwise then due for performance in either event without prejudice to the Company’s right to claim damages;

28.2.2.     alternatively, in the event of circumstances contemplated in 28.1.1, the aggrieved party shall be required to give the other 20 days’ notice within which to remedy that breach, failing which the aggrieved party shall be entitled to either claim specific performance, alternatively to cancel the agreement and claim damages.

29. NATIONAL CREDIT ACT

Notwithstanding the preceding provisions of these terms and conditions, in the event that the National Credit Act 2005 (“the Act”) is applicable to this agreement, then:

29.1  Should payment which is due in terms of these terms and conditions not be paid on the due date, then an incidental credit agreement shall be deemed to be concluded in respect of the sale of service agreement in question, 20 (TWENTY) business days after the Company first charges interest on the overdue amount;

29.2  The provisions of the Act, insofar as they apply to an incidental credit agreement, shall apply to the sale of Goods or supply of services by the Company to the Customer;

29.3. The Company shall be obliged to comply with the provisions of the Act before being entitled to commence any legal proceedings against the Customer to enforce this Agreement;

29.4 The Company shall be entitled to recover from the Customer all costs and charges permitted in terms of the Act; and

29.5 If any provision of these terms and conditions are in conflict with the Act, the relevant provisions shall not apply or shall be read subject to the Act.

30. GENERAL

30.1.   In no instance whatsoever shall any person employed by the Company become an employee of the Customer.

30.2.   Each party shall remain the employer of its own employees in terms of all labour, health, safety and other legislation in force in the Republic of South Africa.

30.3.   If the Company deems it impossible, impractical or hazardous for either the Company or the Customer to continue to fulfil its obligations in terms of these Terms by reason of riots, strikes, lock-outs, labour disturbances, boycotts, acts of God, economic sanctions, industrial legislation, war, terrorism, civil commotion or disturbances, or any other cause or matter beyond the reasonable control of the Company or Customer, as the case may be, and such action results in the delay/suspension of services for more 30 days, the Company shall be entitled, at its sole discretion, to terminate these Terms without having to furnish reasons for such termination and without any liability to the Customer. The Customer shall be liable for costs incurred up to and including the date of termination.

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