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Terms and Conditions

STANDARD CONDITIONS OF CARRIAGE

1. DEFINITIONS

•  “Contractor”

Shall mean Right-side Up Distribution, and shall include any other contractor or agent acting on behalf of or in conjunction with Right-side Up, and whether such transportation is carried out for reward or otherwise.

•  “The Customer”

Shall mean the party reflected on the waybill note on the face thereof and shall include a trader in the goods being transported, the owner of such goods, the consignor of such goods, or an agent of such trader, owner or consignor acting on his behalf.

•  “The waybill document”

Shall mean the Contractor's official waybill note or delivery note.

2. THIRD PARTIES

Where the Contractor utilises the services of a third party in respect of the transportation of goods, the customer shall become liable and subject to the additional terms and conditions stipulated by any such third party, including any warehousemen into whose possession, control or custody the goods are placed and by any government authority in whose area of jurisdiction the goods are conveyed, provided, however, that only those conditions of carriage imposed by the third party which are not less favourable to the contractor than the conditions contained herein, shall apply to the carriage by the nominated third party.

3. QUOTATIONS

•  All quotations shall remain open for a period of 5 days from date thereof, unless prior to such acceptance the Contractor cancels, withdraws or amends the quotation.

•  The Contractor shall be entitled to amend any quotation until such time as the loading of the goods has actually completed.

3.3

3.3.1 Every undertaking by the Contractor to convey goods is subject to the condition that the contractor has or will be able to obtain at the appropriate time the suitable vehicle or vehicles, and the appropriate permit, certificate or authorisation for the particular trip.

•  Should the contractor for any reason be unable to obtain the necessary vehicle or vehicles, or authorisation, the Contractor shall have the right to cancel the contract or to postpone the performance thereof for a reasonable period without being liable to anyone for any consequential damages whatsoever.

•  Where the Contractor is unable to carry out the performance of the Contract on the date or at the time requested, it reserves the right to do so at a reasonable date or time thereafter. While every endeavour will be made to carry out the work on the date and time requested, the Contractor shall not be liable for any loss or expense through the delay in air, railway, road or sea transit, mechanical or electrical breakdown, non-availability of vehicles, failures or breakages, inclement weather, labour troubles or any other cause beyond the Contractors control, or for consequential loss from any cause whatsoever. Should the Contractor's vehicles be forced to deviate from their normal route, as a result of any cause beyond the Contractor's control, such deviation shall entitle the Contractor to make an additional charge to cover the expense arising from the extra mileage and time involved.

•  Quotations exclude customs dues, clearing charges and/or fines and unless otherwise stated on the quotation, charges in respect of airfreight, sea freight, railage, dock dues, landing fees, consular documents, permits or any other charges over which the Contractor has no control, or are incidental to the carrying out of the work. Further more, and unless otherwise stated, quotations do not include the cost of dismantling and/or erection of fittings and fixtures or any other goods or articles of whatever nature; or of any extraordinary packaging which may be necessary to secure safe transport and storage of particular fragile articles. Any work required to be done in respect of the transport or storage of such articles, shall constitute an extra charge to cover the Contractor's additional expenses and/or any loss which the Contractor may suffer.

•  The Contractor does not warrant that it is in possession of the necessary certificates, permits or authorisation for any given goods or route, or that it will be able to obtain same. Should the Contractor represent that it is in fact in possession of any permit certificate or authorisation, such representation shall be subject to the responsible authorities to which the goods may pass, honouring such permit, certificate or authorisation and the Contractor shall not be liable for compensation or damages (including consequential damages) to any party should the responsible authority fail to honour the same.

 

4. GOODS TO BE CONVEYED AT CUSTOMER'S RISK

The Contractor, its servants and/or agents, shall not under any circumstances be liable for the loss or damage of any nature caused by or arising out of any cause or cause beyond our control, in respect of any goods conveyed, transported or sorted by the Contractor, its servants and/or agents.

For the purpose of this paragraph, reference to goods conveyed, transported and/or stored shall be deemed to include a reference to the loading and/or off loading of goods onto or from vehicles operated by the Contractor or its agents.

It is further expressly stipulated and agreed that the exclusion of liability on the part of the Contractor shall, without derogating from the generality hereof, include all damage or loss caused by the negligence, gross negligence or wilful default on the part of the Contractor, its agents or employees, and shall include any one or more of the following causes:

  • Force majeure;
  • An act of God;
  • Damage caused by damp, mildew or rust;
  • Burglary or theft;
  • Flood;
  • Riots;
  • Civil commotion
  • Invasion or war;
  • Any explosion;
  • Orders of restriction or prohibition which are imposed by any government through, to or from which goods are transported, conveyed or stored;
  • The arrest or restraint of the Contractors employees or agents, or the seizure of any goods and/or any vehicles, packaging or natural deterioration, any strike, lock-out or other industrial action by workman or employees, whether such workmen are employed by the Contractor or any of its agents, resulting in the interruption of or the delay in the business of the Contractor or any other business which is related to the transportation, loading, delivery or receipt of goods by the Contractor;
  • Any consequential loss caused by loss of or damage to goods or any delay in making delivery of any goods;
  • Railway, road or sea accidents or delays in railway, road or sea transit, mechanical breakdowns;
  • Shortages, losses or delays resulting from breakages of packages or crates, lack of suitable or adequate covering, tearing of restraining devices or coverings over goods;
  • It is specifically agreed that the Customer shall be liable for the proper protection of all goods from moisture, rain, heat, cold or the movement of goods.
5. LIABILITY FOR INSURANCE

• Subject to what is stated below the Contractor shall accept responsibility up to the insurance value of the goods declared on the waybill note. If no value is declared the maximum responsibility that the Contractor will be liable for is the sum of R 100.00.

•  The Contractor shall be liable for the lesser of the amount of the loss or damage and the insurance value declared on the waybill note.

•  Under no circumstances will the Contractor be liable for the consequential losses of any kind.

•  The Contractor or its insurer shall retain any rights of recovery or salvage, and the conditions imposed by the insurers contracted to the Contractor shall apply to any claims made in the terms of the Contractor's responsibility.

•  The maximum compensation in respect of any single shipment of goods transported by the Contractor shall be limited to R 100 000.00.

•  Where goods shipped are samples of articles made on a “once off” basis, the costs of replacement or repairs shall be deemed to be the equivalent cost of the articles were they to have a normal production status. Where a customer wishes the true value of the goods to be insured, the customer is required to arrange for such insurance cover.

•  The Contractor's responsibility in terms of the insurance value on the goods will be underwritten by means of an insurance policy, the terms and conditions of which will be binding on the Contractor and Customer, a copy of which terms will be supplied at the Customer's request. Any claims, in terms of clause 5 against the contractor for loss or damage to goods must be submitted in writing to the contractor by the customer by way of registered post or by hand, at the Contractors domiciluim, within 30 (THIRTY) days from the date on which the goods should have been delivered. Any claim submitted after this period will be repudiated by the Contractor on the grounds of late submission regardless of any circumstances of loss or damage. In this regard the Customer indemnifies the Contractor against any loss or damages, direct or indirect (including consequential damages) arising from the Customers failure to observe the terms of this clause.

•  The Contractor shall be entitled at its sole discretion to conclude a contract of insurance relating to inter alia the loss of or damage to any goods transported, conveyed or stored by it or its agents.

5.9

5.9.1 Any insurance so affected by the Contractor shall in no way create

any liability on the part of the Contractor, and shall in no way be construed as an obligation on the part of the Contractor or its agents to insure the goods transported, conveyed or stored by it, and shall not constitute an obligation in any way to compensate the Customer or owner of such goods, for any loss or damage from whatsoever cause arising.

•  Having regard to the provisions of paragraph 5.8 and 5.9.1 above in the event of the loss or damage to such goods, in respect of which the Contractor has concluded a contract of the insurance, the Customer shall be entitled to benefit to the extent of any amount recovered by the Contractor or its agent, from the Contractors insurance, in respect of any such loss or damage to such goods; provided that full particulars of the precise nature and cause of such loss or damage, together with full details of the extent of such claim shall be conveyed to the Contractor in writing by prepaid registered post, or by hand delivery, not later than 5 (FIVE) days after the occurrence of such loss or damage

6 TERMS AND CONDTIONS OF ACCEPTANCE OF GOODS

• The Contractor reserves the right to refuse to accept any goods for carriage, or part of any consignment.

•  All the goods to be conveyed by the Contractor shall be accompanied by a waybill note, properly filled in by the Customer.

•  Where the Contractor or its agent or employee signs a consignment note as an acknowledgment of the goods referred to therein, this document will not constitute proof of the quality or condition of goods received, or the nature, content, weight or value of such goods have been properly packed, marked or described.

•  Where the Contractor, its agent or employee signs a document, issued by or on behalf of the Customer, consignor or sender of the goods, which contains conditions of acceptance, delivery or of conveyance of such goods, contrary to the terms and the conditions of this Agreement, such signature shall not constitute an acceptance of such terms and conditions, and the terms and conditions herein contained, relating to the acceptance, delivery and conveyance of such goods shall prevail.

•  Where the Customer requires the transportation of an abnormal load, the Customer shall:

6.5.1 ensure that the necessary authorisation from the relevant authorities are first had and obtained;

•  indemnify the Contractor and accept liability for payment of all claims of any nature whatsoever arising from any damage to or the removal of electrical poles and other overhead wiring, bridges, road surfaces, or any other obstacles, which may become damaged in the course of such conveyance, or which are required to be removed, repaired or replaced, for the purpose of the conveyance of the abnormal load.

•  Become liable for any other additional costs incurred, and resulting from the conveyance of such abnormal load.

7. THE CONVEYANCE OF DANGEROUS OR HAZARDOUS GOODS

•  The Customer is obliged to acquaint himself with the regulations applicable to the carriage of all dangerous and/or hazardous goods or substances, whether such conveyance is by sea, land or air, and to ensure that any goods or substances to be conveyed, comply with such regulations, and bear the appropriate warning labels.

•  The Customer's declaration as to the contents to be conveyed on the contractor's waybill note is hereby specifically stated to be insufficient to discharge the Customer's obligations set out in 7.1 above.

•  Where the Customer requires the conveyance of fragile and/or valuable goods, he is obliged to ensure that the goods are properly packed and labelled, so as to minimise the additional risk to which such items may be exposed. In any event, the Customer indemnifies the Contractor against any loss or damage (including consequential damages) arising from the conveyance of such goods.

•  The Contractor shall not for any reason whatsoever be liable for the damage or loss caused by goods which are noxious, dangerous, hazardous, inflammable, explosive or likely to cause damage and the customer and owner of such goods hereby indemnify the Contractor against all or any penalties, claims, costs or expenses of any nature whatsoever arising from or in connection with the loading, transportation, storage or off-loading of such goods.

8.THE LOADING AND OFF LOADING OF GOODS

•  The Contractor shall be entitled, and the Customer shall be bound by any written agreement, whereby the Customer agrees to load and off-load the goods onto and from the vehicles operated by or on behalf of the Contractor, provided that the Contractor has indicated on the waybill note the Customer's responsibility in this regard. Any agent or consignee performing this duty on behalf of the Customer shall for this purpose be deemed to be an agent or employee of the Customer or consignee.

•  The Customer or Consignee shall be responsible for any damage or loss caused by virtue of any default in the due compliance with the observing of any safety precautions during off-loading and/or on-loading of the Contractor's vehicle, or in respect of any damage attributable to any other cause whatsoever, and arising from the loading and/or off-loading of the Contractor's vehicle; and

•  The Customer hereby indemnifies the Contractor and/or its agents against all costs, expenses, claims, damages or injuries to any person or property and whether caused directly or indirectly, and arising out of or during the course of any loading or off-loading of the Contractor's vehicle; and

•  Nothing in the aforementioned clauses shall be construed as preventing the Contractor from assisting with the loading and/or unloading of goods onto or from its vehicles, but it is specifically acknowledged that such assistance is given without prejudice to the aforementioned conditions and without any liability on the contractor's part, and such assistance shall be given at the sole risk of the customer or the consignee, who shall indemnify the Contractor in terms of sub-clause 8.3 above.

•  Any delay caused on the part of the consignee in taking or accepting delivery of the goods within reasonable time, or which is caused by the improper, inadequate or unsafe handling, off-loading, packaging or storage of the goods on delivery thereof by the Contractor to the consignee, shall under no circumstances impute any liability for any loss or damage of any nature whatsoever to the contractor.

9. GOODS IN TRANSIT

• While the Contractor shall utilise its best endeavours to ensure the delivery of the Customers goods in terms of the Customer's instruction on the waybill note, the Contractor shall not be held liable or responsible for any loss or damages (including any consequential damages) of any nature whatsoever caused by any delay in or postponement of any act required to be performed by its terms of this Agreement, albeit that such delay or postponement is due either to the negligence, gross negligence or wilful default on the part of the contractor, its agents or employees.

•  Any increase in freight costs to the Customer, whether by way of change in wharfage rates, air, sea or land transport costs, or any other increase in transport tariffs, shall be for the customers account, and the contactor shall not be liable to the customer for any losses resulting there from.

•  The Contractors liability to the customer shall terminate upon the goods arriving at the designated destination of the customer.

10. WAREHOUSING AND ASSOCIATES CHARGES

• The Contractor shall not be held liable under any circumstances for payment of any demurrage charges, or for payment in respect of any changes or expenses incurred in consequence of any goods warehoused, but such charges shall be paid immediately by the customer.

10. 2 In the event of goods either prior to or after termination of the transit period, the Contractor shall be deemed to hold the goods as a warehouseman, and be entitled to recover such warehousing costs from the Customer, as it may incur, or as it may stipulate to the Customer.

•  Nothing herein contained shall in any way create any liability or responsibility on the part of the Contractor or its agents for any loss or damage suffered by the Customer or the owner of the goods, and in particular any goods lost or damaged while such goods are warehoused or stored by the contractor, shall in no way impute any liability or responsibility to the Contractor or its agents, and in this regard the provisions of Clause 5 above shall mutates mutandis apply.

•  The Customer warrants that property handed to the contractor for the purpose of removal, packing or warehousing, or for any other purpose is either its own unencumbered property, or that it has the full and absolute authority of all persons owning and/or interested in the property, to enter into this contract, and the customer indemnifies the Contractor against all claims, costs, charges, losses, penalties or any liability of whatsoever nature, which may be incurred by the Contractor in consequence of any claim to such property by a third party.

•  DELIVERY OF GOODS

The Consignee shall be deemed to have received delivery of the goods, as soon as the Contractor's vehicle(s) has arrived at the consigned destination.

•  SUB-CONTRACTORS

The Contractor reserves the right and shall be entitled at all times to employ sub-contractors and/or agents in the performance of the fulfilment of the Contract with the Customer. Not withstanding the employment of sub-contractors and/or agents, the provisions of this Agreement shall nevertheless apply to the Contractor's sub-contractor's and/or agents.

•  TERMS OF PAYMENT

• Unless the customer is an account holder of the Contractor, the contractor's charges must be paid in cash before the goods are removed; alternatively in the case of goods stored, prior to the delivery or removal of any such goods from the Contractor's premises. In the case of account holders the Contactor's charges must be paid within 30 days of presentation of invoice.

• Any brokerage fees, commissions, allowances or other remunerations customarily retained by or paid to forwarding agents, insurance brokers, shipping costs and the like, shall be entitled to be retained by the Contractor, who shall not be obliged to account to its customers or principles for any remuneration received by it from the third parties.

• Any charges not paid by the customer and due to the Contractor, shall entitle the Contractor pursuant to its general lien hereunder to take all or any part of such goods into its possession, or to retain them in its warehouse and in so doing the Contractor shall be entitled to charge for warehousing or any other expenses in connection therewith. The Contractor shall have a general lien upon all goods in its possession or in its warehouse as aforementioned, (whether the debt due by the Customer relates to such goods or not) for all monies due to, or all liabilities incurred by the Customer, and if a part of the goods have been delivered, removed, dispatched or sold, the Contractor shall retain a general lien upon the remainder of such goods, for any liabilities outstanding by the Customer to it. The Contractor shall furthermore be entitled to charge for warehouse storage costs and any other expenses incurred during the period, which its lien on the goods is being asserted, and all the conditions aforementioned shall apply to such additional charges and/or expenses.

• If the Contractor is not paid any amounts due to it within 30 (THIRTY) days after it has retained any goods, pursuant to its general lien, it shall have the power without giving any notice to the Customer, or anyone else, to open and examine any part of the whole or a part of such goods, and to sell whether by public auction or private treaty a whole part of such goods falling under its general lien, and from the proceeds realised there from to pay the amounts due to it, including the expenses of such sale.

• Any surplus realised from the sale of such goods shall be paid to the Customer without interest, and the contractor shall thereafter be released from any liability whatsoever in relation to the goods sold. Where only a part of the goods sold have been sold the Contractor shall be entitled and shall continue to charge storage of the remaining goods, and shall be entitled from time to time sell the remainder or a part only of such goods, and apply to the proceeds as aforementioned and all these conditions shall apply thereto.

• Where the Contractor has agreed to payment in respect of any freight charges from third parties duly designated by the Customer, the Customer shall remain liable to the Contractor for any such payment, should the Contractor be unable to secure payment from the third party so designated.

• It will remain at all times the responsibility of the Customer to ensure that payments due to the Contractor by any such third parties are made prior to delivery, and the Customer shall at all times remain liable for any charges outstanding by third parties to the Contractor.

• All amounts payable by the Customer to the Contractor shall if not paid on or before the due date, bear interest at the prime rate as charged by the contractor's bankers on all overdraft accounts, plus 2% which interest shall be calculated and compounded monthly in advance from due date to date of payment.

• Any legal costs incurred by the Contractor in securing payment of any amounts due to it by the Customer and/or a third party or consignee, shall be paid for by the Customer on the scale as between attorney and client, and shall include collection commission payable on all amounts received.

•  CONTRACTOR NOT A COMMON CARRIER

The Contractor is not a common carrier and accordingly does not undertake the obligations or liability of a common carrier. The Contractor may at its absolute discretion refuse to accept for carriage any goods or any class of goods and shall not be obliged to give any reasons for such refusal. All goods are accepted by the carrier only upon these terms and conditions.

•  LAW APPLICABLE

Notwithstanding the place where this agreement is entered into, or the domicilium or registered address of the Customer, the terms and conditions of this Agreement shall be governed by and construed according to the law of the Republic of South Africa .

•  JURISDICTION

The Customer hereby consents to the jurisdiction of the Magistrate's Court in terms of section 28 of the Magistrates Court Act 32 of 1944, as amended, provided, however that where a claim exceeds the jurisdiction of the Magistrate's Court, the Contractor shall at its discretion be entitled to institute an action out of the Supreme Court of South Africa.

•  DOMICILIUM

The Contractor chooses as its domicilium citandi et executandi 3 Apie Leroux Str Edleen Ext 3 Kempton Park, or such other address as may from time to time appear upon the dispatch document. The Customer chooses as its domicilium citandi et executandi the address set out on the waybill note.

•  CUSTOMER'S WARRANTY

• Where the Customer, consignor or trader is not the owner of the goods, or any part of the goods, the Customer, consignor or trader warrants that is duly authorised by the owner of such goods to accept these terms and conditions on behalf of the owner, and that these conditions will be binding and enforceable against the owner of the goods.

• The Customer warrants that any signature of these terms and conditions brought under the stamp demoting the Customer's name constitutes proper authorisation by the Customer to bind it to these terms and conditions.

•  CONTINUITY CLAUSE

The Customer specifically accepts and agrees that these conditions shall apply to any further or additional work carried out by the Contractor or any sub-contractor or agent employed by it, unless these conditions are specifically amended, added to or deleted by the Contractor, and such amendment, addition or deletion has been brought to its attention in writing by the Contractor, in respect of subsequent carriage or storage being entered into by the parties.

 

 
Office: 0861 778 000
Fax: 0866 501 796
Email: marius@rightside.co.za
VAT: 4200223180
Reg.: 2005/006052/07

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