TRANSPORT SUB-CONTRACTING AGREEMENT

Transcription

1 TRANSPORT SUB-CONTRACTING AGREEMENT BETWEEN: COMPANY NAME : POSTAL ADDRESS : STREET ADDRESS : DULY REPRESENTED BY: (hereinafter referred to as THE TRANSPORTER ) AND: COMPANY NAME : CROSS PROVINCE HAULIERS CC T/A CARGO SERV STREET ADDRESS : 151 SOUTH COAST ROAD ROSSBURGH, DURBAN DULY REPRESENTED BY: CRAIG EVANS, MANAGING DIRECTOR (hereinafter referred to as CARGO SERV )

2 Page 2 of 8 STANDARD TERMS AND CONDITIONS OF TRANSPORT 1. The parties to this agreement are Cross Province Haulers CC T/a Cargo Serv, hereinafter referred to as CS and the Transporter as set out in section 1 of the preamble prefixed hereto, which preamble the said parties agree form part of these standard terms and conditions of transport and which two documents shall constitute the entire agreement between the said parties. 2. The parties mentioned in clause 1 above agree as follows: 2.1. in the event that CS may require goods of any kind or of any nature whatsoever, to be transported to any destination where so ever then, CS in its sole discretion and election may request the Transporter to transport such goods to such destination subject to the terms and conditions set out herein; 2.2. in the event that CS exercises it s election as referred to in paragraph 2.1 above then, in that event, the request made to the Transporter need not be in writing; 2.3. in the event of making the request in terms of clause 2.1 read with clause 2.2 above and the Transporter being able to perform in terms of and comply with said request then, CS will issue a load confirmation in terms of the said request, a specimen of the said load confirmation being attached hereto as annexure A hereinafter referred to as the LC ; 2.4. in the event of CS issuing a LC in terms of clause 2.3 above, that the LC so issued constitutes a formal instruction to the Transporter upon the terms so specified in the LC which instructions the Transporter at all times agrees to comply by and at all times agrees to be bound to; 2.5. notwithstanding the contents of clause 2.4 above, CS may within its sole and absolute discretion, alter, either orally or in writing amend, vary or otherwise change any LC issued in terms of this agreement if the circumstances, in the sole and absolute discretion of CS, require any LC issued in terms of this agreement to be so amended, varied or otherwise changed and the Transporter agrees to comply by and at all times agrees to be bound to the LC so amended, varied or otherwise changed orally or in writing by CS; 2.6. notwithstanding the contents of clause 2.4 and 2.5 above, upon the loading or collection, whether in whole or in part, of any goods specified in any LC issued in terms of this agreement, the Transporter will be deemed to have unequivocally accepted the validity of the instructions contained, specified and set out in any LC issued in terms of this agreement and will further unequivocally be deemed to be in possession of the goods specified and set out in any LC issued in terms of this agreement; 2.7. that upon the Transporter taking possession of goods, as set out in clause 2.6 above, the Transporter unequivocally accepts all and any risk to such goods howsoever such risk arises and from whatsoever cause such risk arises; 2.8. that if any goods, of any nature whatsoever, in possession of the Transporter in terms of this agreement are damaged in any manner whatsoever and howsoever arising, or if any goods, of any nature

3 Page 3 of 8 whatsoever, in possession of Transporter in terms of this agreement are stolen, high jacked, mislaid, lost or otherwise impaired then the Transporter shall be liable to CS for the cost of repair to such damaged goods or the cost of replacement thereof together with any other incidental or consequential costs; 2.9. that the cost of repair or replacement referred to in clause 2.8 above, shall be paid by the Transporter to CS within 30 (THIRTY) days of CS presenting the Transporter with written notification of the cost of repair or replacement as the case may be; that in the event the Transporter may dispute any liability for the cost of repair or replacement in terms of this agreement, then the Transporter shall remain obliged to pay the cost of repair or replacement, as the case may be, in terms of clause 2.9 above, irrespective of such dispute and irrespective of whether the Transporter is insured or not and further irrespective of whether the insurers of the Transporter have repudiated any claim or not and further irrespective of whether the insurers of the Transporter is investigating such claim or not; that nothing in this agreement confers any right on the Transporter, its successors in title, delegates or assigns, to exercise any lien of any nature whatsoever and howsoever arising over any goods the Transporter may be in possession of in terms of this agreement; that in the event of any dispute, claim or investigation concerning the condition of any goods, or part thereof, delivered in terms of this agreement, the contents of any delivery note, proof of delivery or any derivative thereof, shall not constitute proof of the condition of any goods, or part thereof, delivered in terms of the agreement and the contents of any delivery note, proof of delivery or any derivative thereof, shall not constitute a bar or any other impediment against CS utilizing the provisions of clause 2.8 to 2.10 above if after an investigation conducted by CS it is determined in the sole and absolute discretion of CS, supported by written reasons, that the goods, or any part thereof, were not delivered in good order or condition and damaged, reduced or otherwise impaired while in the possession of the Transporter in terms of this agreement; whilst the Transporter is in possession of any goods, or any part thereof in terms of this agreement and any event arises which may place the goods, or any part thereof, in the possession of the Transporter in peril, danger, or any form of jeopardy it will be the duty of the Transporter to immediately bring such fact to the attention of CS; whilst the Transporter is in possession of any goods, or any part thereof in terms of this agreement and any event arises which may unduly delay the delivery of goods, or any part thereof, in the possession of the Transporter then it shall be the duty of the transporter to immediately inform CS of such event, the cause of the delay and the anticipated time of the arrival of the goods, or any party thereof, for delivery at the destination specified in the LC; during the transportation of any goods, or part thereof, in possession of the Transporter in terms of this agreement the Transporter is unable to deliver any goods or any part thereof due to any mechanical failure or damage sustained by or to the vehicle transporting such goods then it shall be the duty and obligation to immediately inform CS of such event and to immediately make appropriate arrangements for alternate transportation and in which event, the terms and conditions of this agreement will

4 Page 4 of 8 continue to apply with any additional cost relating to or for the alternate transportation and anything incidental, ancillary or consequential thereto being for the sole account of the Transporter; notwithstanding anything contained in this agreement and without derogating therefrom, that the Transporter shall at all times be and remain adequately insured for all and any loss or damage of any nature whatsoever and howsoever arising to any goods transported by the Transporter in terms of this agreement and that such insurance shall provide inter alia but not limited to comprehensive insurance cover for loss or damage to goods transported in terms of this agreement by reason of loss or damage due to theft, hijacking, rain, water, snow, fire, road accident, riot, radiation, examination, civil commotion and protest and upon being deemed to be in possession of any goods transported in terms of this agreement the Transporter will be deemed to have represented that it is adequately insured in terms of this agreement ; notwithstanding anything contained in this agreement and without derogating therefrom, the Transporter shall at all times be liable under this agreement for any goods transported in terms of this agreement such liability commencing at the time the Transporter is deemed to be in possession of the goods, or part thereof and irrespective of whether CS is the owner, or not, of the said goods; it shall at all times be the responsibility of the Transporter, it employees, delegates or assigns, to ensure that all goods, and any part thereof, loaded or collected in terms of any LC issued in terms of this agreement is in good order and condition together with quantity; it shall not be the responsibility or liability of CS for any short loading or load distribution or otherwise incorrect delivery of any goods transported in terms of this agreement and inconsistent with any LC issued in terms of this agreement; the Transporter shall at no time whatsoever, without the authority of CS, be entitled to utilize any subcontractors for the transportation of any goods in terms of this agreement; the Transporter, whether directly or indirectly, shall not be entitled and shall be prohibited, excluded and restrained from directly or indirectly rendering any transportation services, of any nature, to any customers of CS during the existence of this agreement and for one year following the termination of this agreement for any reason; in the event that the Transporter renders transportation services contrary to the provisions of clause 2.22 above, then the Transporter unequivocally agrees and undertakes to provide CS with a schedule of all transport services rendered to the customer of CS, the schedule to include all loads transported, the amount invoiced in respect of each load and further undertakes and agrees to pay CS 50 percent of the amount of each invoiced issued and will continue to pay CS 50 percent of each invoice to be issued; in the event of any delay experienced at the loading or off loading points of any goods transported in terms of this agreement, CS will not be responsible or liable to the Transporter for any additional costs occasioned by such delay nor shall CS be responsible or liable for any costs or sleeping arrangements for any drivers of the Transporter as a result or in consequence of such delay;

5 Page 5 of in the event of any wrong doing, of any nature whatsoever and howsoever arising, by or of the Transporter or by or of any employee of the Transporter, then the Transporter provides CS with a complete comprehensive and full indemnity for and against any loss, damage, injury or cost of any nature whatsoever and howsoever arising; that the Transporter will at all times comply with the provisions of the National Road Traffic Act No. 93 of 1996 (as amended) together with all regulations thereto and other applicable road and transportation legislation of any nature whatsoever and hereby declares that the transporter is fully aware and familiar with the said Act and legislation; that in the event that the Transporter fails to comply with or contravenes any provision, portion or section of the said Act or legislation then the Transporter shall be exclusively solely liable and responsible for any penalty arising from such failure or contravention and shall further be exclusively and solely liable for any damages of any nature whatsoever and howsoever arising from such failure or contravention and provides CS an indemnity in respect hereof; that in order to transport any goods in terms of this agreement, the Transporter hereby declares that it is adequately equipped and has the necessary support infrastructure in order to transport any goods in terms of this agreement; that nothing contained in this agreement shall preclude, restrict or otherwise restrain CS from concluding the same or similar agreement with any other transporter; and that all the terms of this agreement are material terms. 3. The parties mentioned in clause 1 above further agree as follows: 3.1. that the agreed price for the transportation of any goods is contained in the LC issued in respect of such goods 3.2. that the Transporter will issue an invoice and present same to CS for any agreed price of transportation in accordance with the LC to which it relates subject to what is provided below; 3.3. that the Transporter will present CS with the original proof of delivery to which any LC relates before noon on the twentieth day of each month and failing which the Transporter shall not be entitled to issue and present CS with an invoice to which the proof of delivery and LC relates until the expiry of sixty days from the time such original invoice has been presented to CS; 3.4. that subject to clause 3.3 above, any invoice presented to CS in terms of clause 3.2 above shall be accompanied by a copy of the proof of delivery and LC to which the invoice relates together with any other relevant documentation which relates to the proof of delivery or LC or both of them; 3.5. any invoice presented to CS contrary to any provisions of clause 3.4 will entitle CS to withhold payment of any invoice irrespective of whether clause 3.3 has been complied with or not and irrespective of whether the sixty day period referred to in clause 3.3 has elapsed;

6 Page 6 of upon the Transporter having duly complied with the provisions of clause 3, CS shall pay the Transporter the amount specified in the said invoice within 30 days of statement or within 30 days of finally complying with the provisions of clause 3 whichever the case may be the Transporters that C/S or any of its designated agents may at any time conduct breathalysing test on any of the Transporters employees prior to any goods being loaded in terms of this agreement and may further conduct such test at any time or any place, before the goods have been delivered in terms of this agreement all Transporters will have tracking devices fitted to their vehicles and all drivers must be equipped with cell phones in the event of a Transporter not being able to locate any vehicle conveying C/S cargo, then such Transporter must give permission to the Tracking Company to allow C/S direct access to the said Tracking Company. 4. The parties mentioned in clause 1 above further agree as follows: 4.1. subject to the terms and conditions contained in this agreement, no oral amendment or variation to this agreement, or this clause, shall be binding between the parties unless reduced to writing and signed by both parties thereto; 4.2. that in the event of any dispute arising between the parties in connection to or in relation to this agreement, then CS at its own and sole discretion may refer such dispute to arbitration in accordance with the provisions of the Arbitration Act; 4.3. that the parties agree to the jurisdiction of the Magistrates Court in respect of any dispute or claim that may arise from or in terms of this agreement notwithstanding that any amount claimed exceeds the jurisdiction of the Magistrates Court; 4.4. that in respect of any claim or dispute between the parties arising from or in terms of this agreement, the applicable law to govern such claim or dispute will be the law of the Republic of South Africa and furthermore that the parties unequivocally agree that such claim will be adjudicated in Durban; 4.5. that notwithstanding the contents of clause 4.2, 4.3 and 4.4, CS may at its sole instance and discretion refer any dispute or claim or action arising out of this agreement to the High Court having jurisdiction; 4.6. that CS may in writing require any member, director or shareholder of the Transporter to provide a written deed of suretyship for any amount due, owing or payable by the Transporter in terms of this agreement which suretyship shall be provided within thirty days of such request; 4.7. that no representations, other than contained in this agreement have been made by either party either before or at the time of the conclusion of this agreement;

7 Page 7 of that any latitude, indulgence or grace which may be given or extended by CS to the transporter under this agreement will not be deemed or constitute a compromise or waiver of rights by CS; 4.9. that in the event of CS concluding any compromise with the Transporter then CS reserves the right to rely on the original cause of action; and that in the event of any dispute arising between CS and the Transporter in terms of this agreement, any certificate issued and signed by a manger or employee of CS certifying that any amount in terms of this agreement is due, owing and payable by the Transporter to CS shall be deemed to be prima facie proof of such amount and shall be sufficient proof of any indebitedness for the purpose of summary judgment, provisional sentence and in any action. 5. The parties mentioned in clause 1 above further agree as follows: 5.1. that the respective address of CS and the Transporter as set out in the preamble to the agreement shall constitute the domicilium citandi et executandi or each party; 5.2. that each party may upon written notification to the other change the address referred to in clause 5.1 above and in which event the new address so provided written notification of shall be domicilium citandi et executandi of the party providing such written notice; 5.3. that in the event that any notice shall be given in terms of this agreement then such notice may either be given by hand or if given by prepaid registered post then deemed to have been given and received within seven days of postage thereof; 5.4. that in the event of a breach of any material term of this agreement, CS may cancel this agreement if the Transporter after having received written notification of such breach fails to remedy such breach within seven days of such notification; 5.5. that in the event of any cancellation in terms of clause 5.4 above and without any prejudice to any rights of CS contained in this agreement, CS may withhold any payments due to the Transporter under this agreement as liquidated damages and in addition thereto claim damages occasioned or arising from the break of this agreement together with damages due to any consequential loss irrespective of how remote such loss may or might have been. Signed for an behalf of CS (as defined in Clause 1 above) Signed for an behalf of Transporter (as defined in clause 1 above) Signature (duly authorized ) Signature (duly authorized)

8 Page 8 of 8 Full name of Signatory Date Place Full name of Signatory Date Place