Terms

TERMS AND CONDITIONS

All and any business undertaken or advice, information or services provided by Sikhulekile, whether for consideration or not, is undertaken or provided on these terms and conditions.

1. DEFINITIONS AND INTERPRETATION

Unless the context indicates a contrary intention, the following words and expressions bear the following meanings in this agreement:

1.1 “Consignee” means the person to whom a consignment is to be delivered by Sikhulekile.

1.2 “Consignment” means goods to be transported in terms of the agreement between the customer and Sikhulekile on a single occasion on the Customer’s instructions and in respect of which a single waybill is completed.

1.3 “The Customer” means:

1.3.1 the person whose particulars appear in the schedule, and/or

1.3.2 the person who instructs Sikhulekile to perform the services, and/or

1.3.3 the person who accepts Sikhulekile quotation; and/or

1.3.4 any person who contracts with Sikhulekile.

1.4 “Contract” means an agreement entered into between Sikhulekile and the customer, which is subject to these terms and conditions.

1.5 “Dangerous goods” includes hazardous goods and goods which, in the opinion of Sikhulekile, are dangerous and includes anything likely to, or which does in fact, cause any damage to persons and/or property.

1.6 “Sikhulekile” means Sikhulekile, and includes its members, employees, duly appointed representatives, agents and subcontractors, where appropriate in the context.

1.7 “Person” shall have its ordinary meaning and includes juristic and natural persons.

1.8 “Schedule” means the schedule of information to which this agreement is attached.

1.9 “Sender” means the person from whom a consignment is to be collected.

1.10 “Service” means the arrangement of transportation of consignments by Sikhulekile on the customer’s instructions.

1.11 “Tariff Schedule” means Sikhulekile ‘s schedule of tariffs of fees, surcharges and other charges in respect of its various service offerings that is in force from time to time.

1.12 ”Transportation means, without limiting the generality of this term, conveyance of the goods from a collection point to a delivery point, and where applicable, includes storage, warehousing, loading, offloading, packing,.

1.13 “Waybill” means Sikhulekile’ s waybill that accompanies consignments that are collected, transported and delivered by or on behalf of Sikhulekile for the Customer, comprises a pre-printed form that is completed by the customer or Sikhulekile’ s employees or agents using information provided by the customer.

1.14 Any reference to:

1.14.1 “Days” means calendar days, unless qualified by the word “business”, in which instance a “business day” shall be any day other than Saturday, Sunday or public holiday in the Republic of South Africa;

1.14.2 “Business hours” means the hours between 08h00 and 17h00 on any business day.

1.15 In this agreement an expression which denotes any gender includes the other genders, a natural person includes a juristic person and vice versa and the singular includes the plural and vice versa

2. CAPACITY OF Sikhulekile

2.1 Despite anything to the contrary in these terms and conditions, Sikhulekile acts as agent of the customer and nothing in these terms and conditions will be interpreted as Sikhulekile acting in any other capacity with the customer, unless Sikhulekile has, in fact, contracted with the customer as principal and informed the customer in writing that it is acting as principal.

2.2 Despite anything to the contrary in these terms and conditions, Sikhulekile shall have no responsibility or liability for any act or omission of any person with whom Sikhulekile contracts to carry out the services, including transportation, under a contract for and on behalf of the customer.

2.3 Unless it is prohibited by law, all packaging, handling, packing, loading, off-loading, warehousing and transportation of goods by or on behalf of or at the request of Sikhulekile are effected at the sole risk of the customer and/or owner of the goods and the Customer and/or owner indemnifies Sikhulekile against all risks arising from such packaging, handling, packing, loading, off-loading, warehousing and transportation of goods.

3. APPLICABILITY OF THESE TERMS AND CONDITIONS

3.1 These terms and conditions together with any addendum to these terms and conditions shall govern the relationship between Sikhulekile and the Customer in each and every contract between them.

3.2 No provision, warranty or representation in any other document or agreed to orally by or on behalf of the Customer and Sikhulekile shall be interpreted as a variation of these terms and conditions, unless the provision is in writing and signed by a duly authorized representative of Sikhulekile.

3.3 No conduct other than what is agreed to in writing and signed by a duly authorized representative of Sikhulekile shall be interpreted as a variation or novation of these terms and conditions or a waiver of Sikhulekile’ s rights under these terms and conditions.

3.4 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 a duly authorized representative of Sikhulekile.

4. APPLICABLE LEGISLATION

4.1 If Sikhulekile is obliged, in the carrying out of any of its duties, to comply with any law then Sikhulekile, by complying with such law, shall not be deemed to have waived or abandoned any of its rights under these terms and conditions.

4.2 In complying with any law Sikhulekile shall not be deemed to have assumed any onus, obligation, responsibility, penalty or liability in favour of the Customer.

4.3 If any of the provisions of these terms and conditions is repugnant to or in conflict with any law, then the conflicting provision shall be deemed to be amended to conform to such law and such amendment shall not affect the validity of the remaining provisions of these terms and conditions.

5. THIRD PARTIES

5.1 The customer acknowledges that when Sikhulekile, as agent for and on behalf of the Customer, concludes any agreement with a third party such agreement is concluded between the Customer and the third party.

5.2 Unless otherwise agreed in writing, Sikhulekile shall be entitled to enter into any agreement it reasonably deems necessary for the fulfilment of the customer’s instructions, including, without limitation, agreements for the:

5.2.1 carriage of goods by any route or means or person;

5.2.2 storage, packing, transport, shipping, loading, offloading and/or handling of goods by any person at any place and for any length of time;

5.2.3 carriage or storage of goods in bulk/break-bulk form or in/on a transport unit or with or without other goods of any nature.

5.3 Despite anything to the contrary in these terms and conditions the Customer agrees that all goods shall be dealt with by Sikhulekile on the terms and conditions stipulated by the carriers, warehousemen, government departments, haulers and all other parties (whether or not acting as agents or subcontractors to Sikhulekile) into whose possession or custody goods may pass, or subject to whose authority they may at any time be whether or not inconsistent with these terms and conditions.

5.4 Sikhulekile is entitled to contract with other parties, whether as agent or principal, at rates different to those it charges the customer and shall not be obliged to account for such differential to the Customer who accepts and consents to this.

6. QUOTATIONS

6.1. Sikhulekile shall be entitled at any time by notice to the Customer to cancel or resile from any quotation or Contract in circumstances where it becomes impracticable or uneconomical for Sikhulekile to carry out the Contract at the quoted / tariff rate in Sikhulekile’s sole discretion and the Customer shall have no claim against Sikhulekile for any loss that the Customer might incur as a result of Sikhulekile cancelling or resiling from the quotation or Contract.

6.2. Subject to clauses 6.1, 6.3 and 6.5, quotations by Sikhulekile shall remain valid for a period of 30 (thirty) days from the date of the quotation or for such other period as is stipulated in the quotation and, if not accepted in writing during such period, shall automatically lapse.

6.3 Quotations and tariffs are based and are subject to, among other things:

6.3.1 quantities, densities, dimensions, mass, properties, other technical data relating to the goods

6.3.2 available loading and off-loading hours,

6.3.3 work being carried out by the methods and the route to be decided by Sikhulekile without interruption, hindrance or postponement;

6.3.4 the availability of third party’s vehicles and/or staff on the dates required;

6.3.5 all part loads being conveyed and delivered at Sikhulekile and third party’s convenience;

6.3.6 other information supplied by the Customer and accepted by Sikhulekile.

6.4 Any variance in the factors on which a quotation / tariff is based shall entitle Sikhulekile to:

6.4.1 require the quote to be adjusted to take into account such variance; or

6.4.2 to suspend performance; or

6.4.3 cancel the contract without incurring any liability and in the event of any such cancellation reserving to itself the right to claim from the customer such damages as Sikhulekile may have suffered.

6.5 Quotations and tariffs shall be subject to escalation in the event of:

6.5.1 Sikhulekile being required to perform after the validity period of the quotation;

6.5.2 changes in currency exchange rates and upward movements in amounts payable by or on behalf of or at the instance of Sikhulekile to third parties including, without limitation, freight, surcharges, insurance premiums, equipment rental and labour costs;

6.5.3 any increase in Sikhulekile’s and third party’s costs coming into force after the date of the quotation / Contract over which Sikhulekile has no control will be for the Customer’s account;

6.5.4 any stoppages or delay due to interruption, hindrance of whatsoever nature, local traffic, municipal regulation or non-production over which Sekhulekile has no control;

6.5.5 the volumes, quantities, densities, dimensions or mass increasing or being greater than the volumes, quantities, densities, dimensions or mass indicated by the Customer (if the Customer disputes Sikhulekile’s determination of the mass and / or dimensions of a consignment, the Customer shall bear the bonus of proving that Sekhulekile’s measurements are incorrect);

6.5.6 a change of route due to reasons beyond Sekhulekile’ and/or third party’s control;

6.5.7 any postponement or cancellation by the Customer; and

6.5.8 delays or additional expenses being incurred as a result of the Customer’s failure to comply with its obligations under these terms and conditions..

6.6 The Customer shall be liable for any such escalation as if the additional amounts had been included in the quotation or tariff schedule.

7. CUSTOMER’S UNDERTAKINGS

7.1 The Customer shall be deemed to have reasonable knowledge of all matters directly or indirectly relating to the Customer’s business, the goods, services to be rendered by Sikhulekile, including without limitation the terms of sale and purchase of the goods and all matters relating thereto and the Customer undertakes to supply all pertinent information to Sikhulekile.

7.2 The Customer warrants that it is the owner, or the authorized agent or contractor of the owner of any goods in respect of which the Customer instructs Sikhulekile, and if the Customer is not the owner, that the owner is bound by these terms and conditions.

7.3 Should the Customer perform any function as agent of the owner, sender or consignee, that person is bound by these terms and conditions for itself and its agents and for any parties on whose behalf it or its agents may act, and in particular, the owner, sender and/or consignee for whom the Customer acts as agent accepts that Sikhulekile shall have the right to enforce against them jointly and severally any liability of the Customer under these terms and conditions or to recover from them any sums to be paid by the Customer which has not been paid by it.

7.4 The Customer shall ensure that consignments are ready for collection at the place arranged for collection and that the waybill and all other documents that must accompany the consignment have been fully and accurately completed.

7.5 The Customer warrants that:

7.5.1 all information and instructions supplied or to be supplied by the Customer to Sikhulekile is and shall be accurate, true and correct, and in particular, the Customer shall be deemed to be bound by and warrants the accuracy of all descriptions, values and other particulars furnished to Sikhulekile for customs, consular and other purposes. The Customer bears the onus of checking all waybills (whether generated electronically, completed by the Customer or completed by Sikhulekile) to ensure that all information on the waybills is correct and must immediately notify Sikhulekile if any of this information is not correct, failing which the Customer warrants to Sikhulekile that all information on waybills is correct;

7.5.2 the Customer will not withhold any necessary or relevant information and indemnifies Sikhulekile against all and any claims, losses, penalties, damages, expenses, including any assessment or reassessment of such descriptions and values and particulars furnished to Sikhulekile, and fines arising, as a result of a breach of clause 7.5 whether negligently or otherwise;

7.5.3 all goods will be properly, adequately and appropriately prepared, packed, stowed, labelled and marked having regard, among other things, to the characteristics of goods involved and are capable of withstanding the normal hazards inherent in the transportation of such goods as contemplated in the agreement reached with Sikhulekile;

7.5.4 where goods are carried in or on containers, trailers, flats, tilts, railway wagons, tanks, igloos or any other unit load devices specifically constructed for the carriage of goods by land, sea or air (individually referred to as “the transport unit”), then except where Sikhulekile has been given and has accepted specific written instructions to load the transport unit:

7.5.4.1 that the transport unit has been properly and competently loaded; and

7.5.4.2 that goods involved are suitable for carriage in or on the transport unit; and

7.5.4.3 that the transport unit is itself in a suitable condition to carry goods loaded in the transport unit and complies with the requirements of all relevant transport authorities and carriers.

7.5.5 Sikhulekile’s handling of the goods and performing the services in respect thereof will not contravene any law or regulation relating to the importation, exportation, transportation, storage and/or distribution of any goods or class of goods. For the avoidance of doubt, if the Customer is not the sender, the Customer bears the risk of the sender doing anything which contravenes these warranties.

7.5.6 It shall not provide details of its account number to any unauthorized person. The unauthorized use of the Customer’s account shall be at the Customer’s risk. The Customer agrees that it shall not be entitled to refuse to pay any invoices for services rendered by Sikhulekile on the grounds that the person who ordered the services on behalf of the Customer did not have the authority to do so.

8. DANGEROUS GOODS

8.1 Sikhulekile is not obliged to contract for the carrying of dangerous goods on behalf of the customer.

8.2 In the event of Sikhulekile agreeing in writing to place with a third party the Customer’s dangerous goods, the customer shall:

8.2.1 disclose fully the nature and properties of such dangerous goods to Sikhulekile;

8.2.2 prior to loading, give Sikhulekile special detailed instructions to enable Sikhulekile to place such dangerous goods for the proper safety and handling as per any applicable Law; and

8.2.3 comply with all regulations governing the loading, off-loading, storing and carriage of such dangerous goods.

8.3 Sikhulekile shall be entitled immediately and without prior notice to the Customer to discharge, or dispose of such dangerous goods, in any manner it sees fit if:

8.3.1 the customer or consignor fails to disclose the dangerous nature of any dangerous goods; or

8.3.2 any dangerous goods become a danger to a person or property, whether or not the dangerous nature of the dangerous goods has been disclosed.

8.4 Sikhulekile shall not be liable for any loss or damage arising from a discharge or disposal of dangerous goods as set out in clause 9.

8.5 Sikhulekile shall furthermore be entitled to recover from the Customer the freight in respect of any such discharge or disposal of dangerous goods as set out in clause 9, despite the non-delivery of such dangerous goods together with any expenses incurred in discharging or disposing of the dangerous goods.

8.6 The Customer:

8.6.1 shall be liable for all loss and/or damage suffered by Sikhulekile or any other person/s caused by dangerous goods whether or not the dangerous nature of the dangerous goods has been disclosed; and

8.6.2 Indemnifies Sikhulekile against all liability and all claims by any person/s arising from such loss and/or damage.

9. ABNORMAL LOADS

Where in Sikhulekile’s sole discretion the carrying of goods by third party on behalf of the customer constitutes an abnormal load, the carrying of such goods shall be subject to the following terms and conditions:

9.1 Adequate notice shall be given to Sikhulekile to enable it to prepare drawings of such loads and route surveys for local authorities (and, where applicable, to Eskom and post office authorities) (“relevant authorities”) for their respective consent.

9.2 The Customer shall bear the cost of:

9.2.1 obtaining the consent from the relevant authorities;

9.2.2 removing and replacing any obstacles during loading, off-loading or in route;

9.2.3 raising and reinstating overhead wires;

9.2.4 switching the electric power off and on;

9.2.5 traffic escorts required;

9.2.6 pavement and obstruction fees levied by the authorities concerned; and

9.2.7 any other additional service incidental to and necessary for the carriage of such loads.

9.3 It is recorded that the hours and speed of such transportation are subject to regulation by the authorities concerned.

9.4 Sikhulekile shall not be liable for any damage to property caused by the passage of such loads and/or third party’s vehicle over or through such property and the Customer indemnifies Sikhulekile against all liability and claims by any person arising from such damage.

9.5 Liability for damage to property under this clause and any consequential loss or damage arising from such damage shall be borne by the Customer.

9.6 All legal costs incurred by Sikhulekile in resisting any claims under this clause, on the scale as between attorney and own client, shall be borne by the Customer.

10. CANCELLATION OF REQUEST 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 Sikhulekile no less than 48 (forty eight) hours’ notice of cancellation (Saturday, Sunday and Public Holidays excluded), prior to the time of dispatch of the vehicle and the service scheduled by Sikhulekile, failing which the Customer shall be liable to pay Sikhulekile’s usual, alternatively reasonable additional charges up to a maximum period of 48 (forty eight) hours.

11. LOADING AND OFF-LOADING

11.1 The Customer shall deliver goods onto the vehicle nominated by Sikhulekile and shall take delivery of goods from such vehicle, and shall be fully responsible for the loading and off-loading of such goods onto or from the vehicle.

11.2 Sikhulekile’s employees may assist with the loading and off-loading of such goods onto or from the vehicle in so far as such assistance is customary and practicable, but such assistance shall be rendered at the sole risk of the Customer without any liability for any loss or damage arising from loading and offloading of such goods onto or from the vehicle attaching to Sikhulekile.

11.3 The Customer warrants that:

11.3.1 it will provide or procure the provision of safe and adequate labour and equipment for loading and offloading, and safe, convenient and adequate loading and off-loading points and access to or from any such loading and off-loading points;

11.3.2 it will ensure that loading and off-loading will be possible at the agreed points during such hours and days as the Parties have agreed; and

11.3.3 if any goods require special appliances for loading or unloading, those appliances will be available at the point of collection and place of delivery of the consignment.

11.3.4 the maximum loading and off-loading time allowed to the Customer shall be five hours or such time as is set out in Sikhulekile quotation.

11.3.5 loading and off-loading time shall be deemed to commence at the time when the vehicle to be loaded / off-loaded arrives at the entrance to the property on which the loading / off-loading point is suitable.

11.4 After completion of loading the Customer shall verify the correctness of all the details contained in the Customer’s delivery documents.

15.5 The Customer shall ensure:

15.5.1 prior to goods being off-loaded, that goods to be off-loaded are the precise goods which should be offloaded under the Contract;

15.5.2 that during off-loading, clear and precise off-loading and delivery instructions are given;

15.5.3 that goods are off-loaded at the correct place and/or off-loading point; and

15.5.4 that immediately after off-loading, goods off-loaded comprise the correct quantity and are in good

order and condition.

15.6 When off-loading is completed the Customer shall inspect the vehicle or vehicles, as the case may be, to verify that the complete consignment has been off-loaded.