The Company and the Customer agree that:
1.1 This contract shall be interpreted according to and governed in all respects by the law of the Republic of South Africa;
1.2 The clause headings in these conditions are for convenience and shall not be used in their interpretation;
1.3 Unless the context clearly indicates a contrary intention, an expression which denotes:
1.3.1 Any gender includes the other genders;
1.3.2 A natural person includes an artificial person and vice versa;
1.3.3 The singular includes the plural and vice versa.
1.4 “The goods” means the goods as indicated on Company Order Forms, quotations and invoices, and specifically refers to any document or thing (including containers or packaging), consigned by the Customer from one address to another;
1.5 “Carriage” means the collection, holding, transportation and delivery undertaken with regard to the goods;
1.6 “Waybill” means the document incorporating these conditions specifying the number of parcels and the destinations;
1.7 “POD” means proof of delivery of the goods by signature in electronic or written form or by any other evidence such as a driver’s confirmation of delivery.
2. COLLECTIONS, DELIVERIES AND ROUTING
2.1 The goods are delivered to the delivery address but not necessarily to the named receiver personally
2.2 The goods are deemed to have been delivered upon receipt of a POD. The POD shall be conclusive evidence of delivery, save where the POD is obtained by means of fraud, collusion or dishonesty on the part of the Company
2.3 The Company will make every reasonable effort to deliver the goods according to its regular delivery schedules but these are estimates only and are not guaranteed unless otherwise stated. The Company shall within a reasonable time inform the Customer promptly of any unavoidable delay in rendering of the services. The Company is not liable for any damages or loss caused by delays howsoever arising unless the CPA is applicable, in which event the Company may be held liable if gross negligence is sufficiently proven by the Customer.
2.4. In the event the CPA is applicable the Company agrees to:
2.4.1 provide timely performance and completion of services and timely notification of any unavoidable delay in performance of services;
2.4.2 provide performance of services in a manner and quality that persons are generally entitled to expect;
2.4.3 deliver any property or control over any property of the Customer in at least as good a condition as it was when the Customer made it available to the Company for the purpose of performing such services.
2.5 In the event the Company fails to render the services in accordance with Clause 7.4 the Customer may require the Company to either remedy any defect in quality of services performed or refund the Customer a reasonable portion of price paid for services performed, taking into account the extent of the failure.
2.6 All route planning shall be at the sole discretion of the Company. The Customer acknowledges that carriage over weekends and public holidays may impact on the expected delivery time.
2.7 Ownership and risk shall at all times remain vested in the Customer and the Company shall have no liability for any loss or damage occurring during or after delivery unless the CPA is applicable and gross negligence is sufficiently proven by the Customer.
2.8 The Company may at any time at its sole and reasonable discretion refuse to carry any goods.
2.9 The Company reserves the right, at its sole discretion, to carry goods:
(i) by its own servants and/or by any airline, delivery company and/or other independent contractor; (ii)by any means of conveyance.
2.10 If for any reason beyond the Company’s control it is unable to carry the goods to the address specified in the Waybill or to effect delivery at the said address, the Company shall endeavour to communicate with the Customer to establish an alternate address for delivery in the country in which the goods are then located, failing which the Company shall be entitled to, within 30 (thirty) days’ written notice to the Customer, dispose of or sell the goods, either privately or by auction, without incurring any liability to the Company or to any other party whatsoever. The Customer shall be responsible for all costs associated with the disposal or sale of the goods and the Company shall be entitled to deduct from the proceeds of the sale sufficient funds to meet these costs. The Customer shall be liable for storage cost at a rate of R …….. per day calculated from the first day the Customer failed to respond, which amount will be due and payable within 7 (seven) days on receipt of tax invoice, alternatively the Company may deduct the storage cost from proceeds. The balance of the proceeds, if any, shall be paid to the Customer within 14 (fourteen) days of date of the disposal. Any amount still due and payable to the Company shall be paid to the Company with immediate effect after receipt of tax invoice.
3. EVENTS BEYOND THE COMPANY’S CONTROL
3.1 The Company is not liable for any loss, damage, failure to perform, or delay in performing any of its duties due to circumstances beyond its reasonable control, including but not limited to: flood, fire, “act of God”, strike, lock out or other labour dispute, threat and/or act of terrorism, malicious damage, riot or civil commotion, accident, adverse traffic conditions, mechanical breakdown, war or any other military action, earthquake, severe weather conditions, pandemic, plane crash, embargo, compliance with any law or governmental order, acts or omission of public authorities (including customs and quarantine officials) with actual or apparent authority, unless the CPA is applicable and gross negligence is sufficiently proven by the Customer.
3.2 The Company shall inform the Customer within a reasonable time in writing of any unavoidable delay or failure to perform as contemplated in clause 11.1 regardless of whether the CPA is applicable or not.
4. SUB – CONTRACTING
4.1 The Company shall be entitled to assign, transfer or sub-contract the carriage or any part thereof to its affiliates or to any third party sub-contractor. The Company shall not be liable to the Customer for the performance of any sub-contractor.
4.2 Any sub-contractor shall be entitled to rely on and enforce any of the provisions of these conditions as if it were a party hereto in the place of the Company.
4.3 In the event of any loss, damage, mis-delivery or delay occurring in respect of the carriage of the goods by reason of any act or default of any sub- contractor, the Company shall, at the Customer’s request, assign to the Customer any right of action which the Company may have against the sub-contractor. The Customer indemnifies and holds harmless the Company, its affiliates, directors, shareholders, employees, contractors and officers against any loss and/or damages suffered by the Customer arising out of the assignment, transfer and/or sub-contracting of the carriage or any part thereof to its affiliates or to any third party sub-contractor or otherwise, unless the CPA is applicable and gross negligence is sufficiently proven by the Customer.
5.1 It is the Customer’s responsibility to make its own insurance arrangements in such sums and against such risks as it deems appropriate. No insurance cover for goods shall be arranged by the Company.
6.1 The Company’s liability arising from any negligent act, omission or breach resulting in loss of or damage to the goods, mis-delivery or delay shall be limited to R50.00 (fifty Rand) per Waybill if the goods were not insured by the Customer unless the CPA is applicable and gross negligence is sufficiently proven by the Customer.
6.2 Notwithstanding 15.1 above, no compensation shall by payable by the Company, unless the CPA is applicable and gross negligence is sufficiently proven by the Customer:
6.2.1 in respect of indirect loss, consequential loss, incidental loss, economic loss, loss of income, loss of profits whether direct or indirect, loss of interest, loss of future business, loss of goodwill or loss of sales or turnover.