In these conditions the following expressions shall have the meanings set forth against them, namely
- Where appropriate, words importing any gender shall include any other gender as well as bodies of persons whether corporate, or incorporate and words importing the singular shall include the plural and vice versa.
- "Carrier" means Cargo Movement (Pty) Ltd.
- "Customer" means the party who contracts with the Carrier for the carriage of goods.
- "Consignment" means the goods whether in bulk or contained in one or more packages as described in each waybill issued by the Carrier for dispatch on one load for the Customer from one address to another.
- "Goods" means anything to be handled, conveyed or stored by the carrier.
- "Contract" means each contract of carriage entered into between the Carrier and the Customer.
- "Dangerous Goods" means any goods which are by their nature dangerous or potentially dangerous or in the opinion of the Carrier of a dangerous or hazardous nature and without detracting from the generality of the aforegoing, all goods which are specified by Transnet from time to time to be of a dangerous or hazardous nature.
- "Load" means all the Consignments being carried for Customers at any one time with any one mode of conveyance.
- These terms and conditions shall apply to all Contracts relating to the carriage of goods by the Carrier.
- No alternation or variation of these terms and conditions shall be binding, either at the time any Contract is concluded or at any time thereafter, unless the alternation or variation in question is expressly agreed in writing and signed by an authorised representative of the Carrier.
- The person who acts on behalf of the Customer entering into the Contract warrants that he is the agent of the Customer or that he has authority to contract on behalf of the Customer on the terms and conditions set out herein.
- The Customer warrants that:
- if it is not the absolute owner of any goods in a Consignment, it is in so far as necessary entitled and authorized to enter into this contract on behalf of all relevant parties;
- it has disclosed all relevant required details relating to the goods to enable the Carrier to price and execute the contract safely and lawfully;
- information of company details, including agreed to rates and fuel surcharges are required before any consignment will be moved by Cargo Movement;
- the required handling will not be dangerous, hazardous, or noxious, or unlawful unless disclosed in writing by the customer beforehand;
- all information given by, or on it's behalf, is correct.
3. Limitation of Liablity
- Unless requested to effect insurance by consignee (paragraph 6), the liability of the Carrier to the Customer for any damages sustained by the Customer from any cause whatever including any damages arising out of the Carrier's negligence or that of its servants, agents or subcontractors shall be limited to the sum of R500.00 per consignment.
- The carrier shall be exempt from and shall not be liable under any circumstances for any indirect or consequential damages of any nature or any loss of profit or other special damages of any nature which the Customer may suffer as a result of any breach by the Carrier of any of it's obligations under the Contract whether or not arising out of negligence on the part of the Carrier, it's servants, agents or subcontractors.
- Save as provided in this clause, the Carrier shall be exempt from and shall not be liable under any circumstances for any loss or damage to any property of the Customer delivered to the Carrier for the purposes of the Contract, even if the loss or damage arises out of any negligence on the part of the Carrier, it's servants, agents or subcontractors.
- In so far as any of the services rendered by the Carrier in terms of the Contract are as carried out by any of it's servants, agents, or subcontractors, the provisions of this clause are stipulated for their benefit as well as that of the Carrier and they shall each be exempted accordingly.
- The Carrier shall not be liable to the Customer for any claim of any nature whatever made by the Customer unless the claim is made in writing within ten days after the delivery of the Consignment or the date upon which the Consignment should have been delivered in terms of the Contract.
- Subject to any express warranty guarantee given by the Carrier in writing and which is intended by the Carrier to form part of the Contract, the Carrier does not give any warranty or guarantee or make any representations whatever in respect of any services to be rendered by it in terms of the Contract, and the Carrier shall be deemed not to be a public carrier.
- The Customer shall not have any claim of any nature whatsoever against the Carrier for any failure by the Carrier to carry out any of its obligations under the Contract as a result of viz major.
- Unless otherwise stipulated in writing by the Carrier, the Carrier will not be liable for excesses on any claims made by the Customer.
- All amounts payable by the Customer to the Carrier shall be made without any deduction or set off and no payment may be withheld by reason of any alleged claim by the Customer against the carrier.
- Unless otherwise agreed in writing by the Carrier, all amounts payable by the Customer shall be paid upon presentation of the Carrier's statement. If posted the carrier's statement shall be deemed to have been presented seven days after the date appearing on the statement unless the Customer proves the contrary.
- Any amount not paid by the Customer on due date shall bear interest at the rate of 2% per month from the date on which it falls due until the date that it is paid.
- If the receiver described on the face of the Carrier's waybill is designated as the party responsible for payment and if the Receiver fails to make payment the Sender described on the face of the Carrier's waybill shall be liable for all the Carrier's charges.
5. Pledge and Lien
- The Carrier shall have a Lien over all goods handed to it by or on behalf of the Customer, as security for the payment of all amounts payable to it by the Customer howsoever arising and the Customer hereby pledges such goods to the Carrier as security for payment as aforesaid.
- The Carrier may in it's discretion retain possession of any goods handed to it by or on behalf of the customer pending the payment of all amounts payable by the Customer to the Carrier whether or not payment is due in accordance with the credit terms agreed by the parties and whether or not the Customer's indebtedness arises out of the Contract.
- If any amount is not paid by the customer within seven days after due date, the Carrier shall be entitled without prejudice to any other rights it has and without further notice to the Customer -
- to open and examine the Consignment;
- to sell the whole or any part of the Consignment in such manner and on such terms and conditions as it deems fit;
- to apply the net proceeds of any such sale after deducting all expenses incurred in connection with such sale to the Customer's indebtedness provided that any surplus shall be paid to the Customer at it's last known address, failing which within fourteen days of receipt of a written demand by the Customer;
- upon the sale of goods in terms of this clause the Carrier shall have no further liability to the Customer in respect of the goods, save for the obligation to pay the surplus proceeds derived from the sale to the Customer
- d. The Carrier's right of sale shall be subject to the following provisions:
- where the address of the Customer, or the Consignee is known the Carrier shall give them notice that the goods will be sold unless paid for and removed within a stipulated time;
- the Carrier shall make reasonable efforts to realize a fair price for the Consignment;
- if the Carrier sells it shall be discharged from further liability to the Customer and anyone claiming through it once it pays, or tenders the balance of the price realized less all expenses incurred in connection with the sale and all outstanding carriage and storage charges to the Customer.
e. The Carrier shall in it's absolute discretion be entitled to appropriate payment received from, or on behalf of the Customer to any debt the Customer may owe it
- f. Because all contracted services will be rendered at the sole risk of the Customer, notwithstanding anything to the contrary contained herein, or in any law the customer shall appropriately insure, against all risks and have the Carrier's interests noted in such policies and indemnifies and holds the Carrier, which contracts out of all liability, harmless, against any direct, indirect, consequential, or other loss, damage, or expense suffered by anyone, including the Carrier arising from, or in connection with each Contract entered into, including but not limited to, claims following from:
- contamination, damage, destruction, late, or non-delivery of any goods;
- indemnities that the Carrier must give for removal and re-instatement of obstructions;
- civil, or criminal liability and expenses incurred arising from the Customer's omission to inform and instruct the Carrier fully regarding any goods in terms of a Contract;
- the Carrier shall not be responsible for any loss, or incorrect delivery of the Consignment due to the name and address of the Consignee being improperly stated;
- in the absence of any wilful act, or omission the Carrier shall not be liable for any loss in the event of the delivery being effected to any person other than the Consignee, in the event of the Consignee, or his duly authorized agent not being present to receive same.
6. Goods In Transit Insurance *
(a) If so required the Carrier can, at the Customer's cost, endeavor to arrange goods in transit and any other insurance they request, prior to transportation.
(b) If any such request cannot be met at all by the Carrier, or it's insurers the Customer shall be advised prior to transportation.
(c) Whilst the Carrier will endeavor to arrange cover as required, it does not warrant anything in that regard and failure to arrange the whole, or portion of any required insurance shall not entitle the Customer to damages from the Carrier. It shall be the Customer's obligation to determine and "satisfy” itself with the conditions and suitably of any insurance arranged.
(d) If requested to do so in writing, the Carrier shall insure a consignment for the value stipulated by the Customer, subject however to the usual exceptions and conditions and stipulations as to excess deductions of the Carrier's open policy and subject to the condition that notwithstanding the value stipulated aforesaid, the value insured shall be limited to the sum of R50 000 per consignment or an equal amount equal to the sum of R50 000 per consignment or an amount equal to the sum of R250 000 divided by the total number of consignments comprising the load which includes the consignment in question, whichever is the lesser. The Carrier shall not be obligated to affect a separate insurance policy in respect of the consignment. The Customer shall be liable to pay a premium in respect of a consignment. The customer shall be liable to pay a premium in respect of the insurance referred to calculated on the value insured at a rate of 3% for fragile goods and 2% for non-fragile goods, which percentages may be adjusted by the Carrier upon 30 days notice to the customer from time to time.
(e) The Carrier will reasonably assist the Customer in pursuing any insurance claim.
7. Insurance *
(a) Unless requested to do so in writing the Carrier shall be under no obligation to effect insurance in respect of any Consignment.
(b) If requested to do so in writing the Carrier shall insure a Consignment for the value stipulated by the Customer, subject however to the usual exceptions, conditions and stipulations as to excess deductions of the Carrier's open policy. The Carrier shall not be obliged to effect a separate insurance policy in respect of a Consignment.
(c) The Carrier reserves the right to reject any insurance claim which is not notified to it within ten days after delivery of the Consignment or the date upon which the Consignment should have been delivered in terms of the Contract.
(d) Notwithstanding anything contained in this clause no insurance cover will be effected for Consignments dispatched on a COD basis.
(e) If the carrier's insurer disputes liability for a claim for any reason the Customer shall have no recourse against the Carrier.
8. General Indemnity
The Customer hereby indemnifies and holds the Carrier harmless against any claims and demands made by any third party against the Carrier and against all liability incurred by the Carrier to any third party arising out of the loss or damage to any Consignment however arising. The Customer further indemnifies and holds the carrier harmless against all claims and losses arising out of the failure on the part of the Carrier to timeously or properly lodge any claim against the insurer with whom insurance has been affected in terms of these conditions.
9. Conditions Of Transit
Transit shall commence:
- when the Consignment has been delivered, unloaded and accepted for carriage at the Carrier's premises;
- when the Consignment has been loaded and finally secured onto the Carrier's vehicle at any other point.
Transit shall terminate:
- on the arrival at place of delivery (without the load being unfastened, or unloaded);
- if a Consignment is to be held by the Carrier pending instructions, or collection and the instructions, or collection does not materialize within a reasonable time.
- The Customer shall be solely responsible for delivery, loading and off-loading of any goods to be conveyed, or stored on the Carrier's vehicle, or premises and for the acceptance of delivery on completion of the contract; to the extent that the Carrier's agents may assist therein, they shall do so on instruction, supervision and at sole risk of the Customer, or Consignee.
10. Contract Conditions
The Carrier shall not be obliged to perform under a Contract unless:
- it has received sufficient notice of the Customer's requirements to enable it to perform;
- it has suitable vehicles available;
- every authority and permit required to enable lawful performance has been obtained and remain in force. The Carrier shall not be responsible for any delays caused by obtaining consents, or approval and shall be entitled to charge extra to cover the costs incurred by any delay;
- all roads, loading, off-loading equipment, facilities and accesses are in the Carrier's opinion, passable operable, safe and adequate;
- the Carrier is satisfied of the Customer's solvency and ability and willingness to pay for the services in terms of a Contract;
- it is, in the Carrier's opinion, safe to comply with it's obligations and is not prevented from doing so by force majeure which shall inter alia include, but not be limited to, attacks upon it's employees, vehicles or equipment, accidents, breakdowns, non-availability of fuel, or any other cause whatsoever beyond it's reasonable control;
- the competent authorities approve of the passage of the loaded vehicle and the route on which the Carrier's charges have been based.
11. Hazardous Goods
Should goods, whether they are dangerous, hazardous, or noxious in terms hereof and so disclosed, or not, become so dangerous, hazardous, or noxious to persons, or property, in the Carrier's opinion, it shall forthwith, without any notice, be entitled to take steps it deems prudent, including the disposal of the goods, to avert the problem.
Notwithstanding damage to, or disposal of any goods, the Carrier shall be entitled to payment as if the goods were duly delivered as well as any expenses and extra charges incurred trying to avert the problem and any damage suffered by the Carrier;
The Carrier shall under no circumstances be liable to the Customer, the Consignee, or anyone else for any loss, or damage sustained as a result of any such steps.
12. Dangerous Goods
(a) Unless otherwise declared in writing by the Customer to the Carrier the Customer warrants that the Consignment is fit to be carried in the ordinary course and does not include Dangerous Goods.
(b) If the Carrier agrees to accept any Dangerous Goods for Carriage then -
- the Customer shall furnish a full written declaration of the nature of the goods compromising the Consignment;
- the Customer shall be obliged to ensure that the Dangerous Goods are properly and safely packed and packed in accordance with any applicable laws in force from time to time;
- the Customer indemnifies and holds the Carrier harmless against all claims, loss, damage, injury and costs arising out of the carriage of Dangerous Goods whether the said goods have been declared as such by the Customer or not.
(c) If any goods in a Consignment, 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 said goods or to take such other steps at the Customer's expense as the Carrier, in it's discretion, deems appropriate to avert any such harm being caused by the said goods.
(d) The carrier shall not be obliged to handle dangerous, hazardous, or noxious goods.
(e) Whilst it will endeavor to deliver all goods on time, the Carrier cannot contract on the basis that the time is of the essence, or accept liability for any losses due to delay, and the Customer shall not be entitled to cancel, repudiate, or claim damages due to late delivery.
The Carrier shall be entitled to employ the services of any other carrier on such terms and conditions as the Carrier deems fit for the purposes of performing the whole or part of the Contract, and such other Carrier shall have the same rights and protection mutatis mutandis as provided in these conditions.
The onus of proving the condition or state of any Consignment at the time that it is delivered to the Carrier shall, at all times, rest with the Customer. Any receipt given by the Carrier to the Customer in respect of a Consignment shall only constitute prima facie proof of the condition of the Consignment.
15. Additional Charges
Charges will be appropriately increased and any damages suffered claimed if:
- the information furnished is incorrect in which event the Carrier may even cancel any further performance under a Contract, retain monies already paid and claim damages;
- the cost of capital equipment to be specifically acquired for a Contract, or fuel, tyres, spares, insurance, salaries, wages, sub-contractors, railage, airfreight, shipping, taxes, or any costs beyond the Carrier's control is increased during a Contract;
- longer routes than planned, when quoting, or contracting have to be used, or loading, or off-loading is complicated due to circumstances beyond the Carrier's control;
- obtaining permits, providing escorts, removing and reinstating obstructions involves expenses and effort not provided for by the Carrier;
- extra costs are incurred to meet taxes, levies and authoritarian requirements;
- in the event of any vehicle being seized as consequence of any breach on the part of the Customer;
- the Customer or the Consignee fails to load, off-load, or take delivery of any goods, in which event the Carrier shall in it's discretion be entitled to abandon the goods on site, or store them. The Customer shall be liable for expenses and charges and shall have no claim whatsoever against the Carrier;
- any area, or mass set aside for storage, or conveyance of goods is not used, or the Carrier's equipment is damaged, or delayed due to the Customer's fault;
- if the Carrier has to pay any demurrage or storage charges.
The Customer hereby acknowledges and agrees that Cargo Movement (Pty) Ltd may:
- Perform a credit search on the Customer’s record with one or more of the registered Credit Bureaux when assessing the Customer’s application form.
- Monitor the Customer’s payment behaviour by researching his\her record at one or more of the registered Credit Bureaus.
- Use new information and data obtained from other Credit Bureaus in respect of the Customer’s future applications.
- Record the existence of the Customer’s account with any Credit Bureaus.
- Record and transmit details of how the Customer has performed, and how the account is conducted by the Customer in meeting his/her obligations on the account.
- Cargo Movement undertakes to give the Customer 21 days written notice prior to the forwarding of the details to the Credit Bureau database.
(a) No relaxation or indulgence which the Carrier may show to the Customer shall in any way prejudice the Carrier's rights hereunder or be construed as a waiver by the Carrier of it's right to insist upon strict compliance with these conditions.
(b) The Carrier shall be entitled to institute any proceedings against the Customer arising out of the contract in any Magistrate Court, having jurisdiction over the Customer, even if the cause of the action in question exceeds the jurisdiction of the Court, provided that this condition shall not preclude the Carrier from instituting any proceedings against the Customer in any competent division of the Supreme Court of South Africa.
(c) If the Carrier institutes legal proceedings against the Customer arising out of Contract, the customer shall be liable for all costs incurred by the Carrier pursuant to such proceedings on the scale as between attorney and client including collecting commission.
(d) The determination of the route to be taken in connection with the Carriage of any Consignment shall be at the sole discretion of the Carrier.
(e) Notwithstanding that the Carrier may have expressly or implicitly authorised payment to it in connection with the Contract by post, the Carrier shall be deemed not to have received payment until the cash, cheque or other instrument of payment is actually received by the Carrier.
(f) Unless otherwise agreed in writing, the Customer will be responsible for ensuring sale and free access to loading points and for loading & unloading the Consignment.
(g) The Customer warrants the accuracy of all descriptions, values, marks, weights, numbers, brands, contents, quality, or description of any goods and other particulars furnished to the Carrier in respect of the Consignment and the Customer indemnifies the Carrier against all losses, damages, expenses, fines, and like arising from any inaccuracy or omission with respect thereto.
(h) All waybill and account queries must be submitted in writing within 30 days. Cargo Movement will not be held responsible after this period.
(i) Quotations may be ammended, or withdrawn prior to acceptance and shall lapse after 30 days.
(j) The Contract price shall inter alia be:
- fixed in the discretion of the Carrier with due regard to it's ruling rates, or in the absence of such rates at market related rates;
- calculated on the information furnished and warranted to be correct and complete by the Customer and accepted in good faith by the Carrier.
(k) The Carrier shall be entitled to cede, or assign any of it's rights, or obligations under any Contract to anyone; the Customer shall have no right to cede, or assign any of it's rights, or obligations under any Contract.
(l) The hirer chooses the addresses set out in any Contract with the Carrier for purposes of delivery of all notices, mail, and as domicilium citandi et executandi for service of legal process, but shall be entitled to change such addresses from time to time provided that the new addresses shall always include a physical address and that any such change shall only be effective upon receipt of written notice thereof by the Carrier. All notices forwarded by prepaid registered post, shall be deemed given and received 3 (three) days after the date of posting.
(m) These conditions shall replace all prior conditions and govern this and future Contracts between the Carrier and the Customer.
(n) The Customer accepts these conditions.