In these conditions the following words shall bear the meaning assigned to them below:
1.1. “the carrier”
Means D2D Shipment Services Ltd. trading as D2D Shipping and includes the carrier's servants and agents and any person or persons carrying any goods forming the subject matter of this contract under and in terms of a subcontract with the carrier;
1.2. “the customer”
Means the party reflected on the waybill document as the sender and or receiver of the goods, whether acting on his own behalf or in his capacity as agent or in any other capacity for a third party;
1.3. “the goods”
Means the goods forming the subject matter of this agreement, whether contained in one or more parcels or packaging and whether consigned singly or in parcels or in bulk;
1.4. “dangerous goods”
Includes those classified as such by Spoornet, the marine division of the Department of Transport, goods specified as such by IATA or the SABS from time to time including hazardous chemical substances as defined in the regulations promulgated pursuant to the Occupational Health and Safety Act 85 of 1993 or which are considered by the carrier to be dangerous.
1.5. “the handling of the goods”
Includes the goods being handled, warehoused, held, controlled, loaded or unloaded, carried or otherwise possessed by the carrier for any purpose whatsoever.
2. No variations of conditions
The handling of the goods shall be subject to the conditions stated herein unless specifically varied by the carrier in writing, and these conditions shall at all times take precedence over any terms, conditions or stipulations contained in any of the customer's documentation.
3.1. In the absence of any written agreement to the contrary, the remuneration payable to the carrier by the customer for the handling of goods and related services, will be in accordance with the standard tariffs of the carrier, as determined by the carrier from time to time.
3.2. The carrier's standard tariffs are available on request.
3.3. The customer shall be liable for any duty, tax, fine or outlay of whatsoever nature levied by the authorities at any place in connection with the goods and shall reimburse the carrier for any such amount disbursed or losses sustained by the carrier in connection therewith.
The carrier is not a Credit Provider in terms of the National Credit Act (“NCA”). As such, payment shall be effected, by the customer in cash, (not cheque), in advance, unless the customer already has an account facility with the carrier.
5 Carrier's lien
5.1. As security for all moneys owing for the handling of the goods, the carrier shall have a lien over all goods in its possession or under its control.
5.2. If any moneys owing to the carrier are not paid by the customer within 30 days after they have become due, the carrier shall be entitled without further notice:
5.2.1 to open and examine the goods;
5.2.2 to sell the whole or any part of the goods in such a manner and on such terms and conditions as it deems fit.
5.2.3 to apply the proceeds of any sale after deducting all expenses thereof in payment or reduction of any amount due by the customer to the carrier (including storag charges), provided that any surplus shall be paid over to the customer without interest immediately after the sale, if the customer's address is known, and if not, upon demand made by the customer within 90 days of the sale.
5.3. The carrier shall not be liable for any loss, damage or deterioration of such goods attributable to the implementation of this clause.
5.4. The carrier's rights under this clause are without prejudice to any other rights which it may have.
6. Customer's warranties
The customer is bound by and warrants in favour of the carrier:
6.1 The accuracy off all descriptions, values and other particulars furnished to the carrier. The customer indemnifies the carrier against all expenses, claims or fines arising from any inaccuracy or omission of descriptions, values or other particulars.
6.2. That the carriage of the goods is not prohibited by Law and the customer hereby indemnifies and holds the carrier harmless against any claims and/or damages which the carrier may suffer by virtue of the customer's breach of this warranty;
6.3. That the goods are the customer's sole property, alternatively, the customer is authorized by the person owning the goods to enter into this agreement, and the customer hereby indemnifies the carrier against any claims made by the owner.
7. Conditions of goods
The onus of proving the quantity, type, physical properties and composition and the condition of the goods and/or the condition of any container at the time of receipt thereof by the carrier shall at all times remain with the customer, and no delivery note, receipt or other document furnished or signed at such time by or on behalf of the carrier shall constitute conclusive proof thereof.
8. Dangerous goods
8.1 Unless otherwise agreed in writing, the customer warrants that all goods handled are fit to be so handled in the ordinary way and are not dangerous goods.
8.2. The carrier will not handle any dangerous, corrosive, noxious, hazardous, inflammable or explosive goods or any goods which in its opinion are likely to cause damage.
8.3. The customer shall be liable for all losses or damage caused to the carrier and/or third parties by all dangerous goods handled and hereby indemnifies the carrier against any claims arising in connection therewith.
8.4. If, in the opinion of the carrier any goods become a danger to any person or property, the carrier shall be entitled to immediately and without notice to the customer dispose of the goods in question or take such other steps as it in its sole discretion deems prudent to avert danger. In such event the carrier shall;
8.4.1 not be liable under any circumstances for the value of the goods or for any other loss or damage whether direct or consequential sustained by the customer or owner as a result of such disposal or other steps; and
8.4.2 still be entitled to recover from the customer its remuneration for the handling of the goods together with any costs incurred by it in disposing of them or taking other steps.
9. Perishable goods
Perishable goods which are not taken up immediately upon arrival at their destination or which are insufficiently marked or otherwise not identifiable may be disposed of without notice to customer, and the payment or tender to the customer of the net proceeds of any disposition (after deduction of all charges incurred by the carrier) shall be equivalent to delivery.
10. Loading and off-loading
10.1 The customer shall ensure that:
10.1.1 the goods shall be ready for loading on the date specified;
10.1.2 all documentation necessary in connection with the goods and the transportation thereof shall be fully and correctly prepared;
10.1.3 at all places where the carrier is to collect and off-load the goods there will be safe, suitable and adequate access and loading off-loading facilities, and that it is possible for the carrier to do so by means of ordinary staircases and/or doorways, without need for any special or additional tackle, plant, power, labour or equipment.
10.1.4 the goods will be sufficiently packed and prepared for carriage;
10.1.5 the customer shall sign such certificates and receipts on loading and off-loading as the carrier may require.
10.2 The carrier shall not be under any obligation to provide any plant, power or labour which in addition to its vehicle's crew is required for the loading or unloading of any goods. Any assistance given by the carrier in such loading or unloading shall be at the sole risk of the customer.
When carrying goods, the carrier shall in its sole discretion decide what route to follow.
12. Carrier's liability for damage or loss
12.1 The carrier shall not carry the following goods: Bullion, jewelry, precious stones, cash, valuable stamps, deeds, travelers cheque/s, valuable documents or film. The carrier shall not be liable for scratches or dents to goods, household goods, personal effects, any product containing alcohol, cigarettes, tyres, livestock and game, tinned fish, fresh produce, copper products, glass, glass products, wood, wood products, tiles, second-hand goods and water damage, damage to packaging and any liquid products, subject to Act 68 of 2008.
12.2 Subject to the terms of this agreement and in respect of goods carried by the carrier, the carrier will only be liable in respect of loss or damage of such goods in transit by the carrier, to an amount of R5 000.00 (five thousand rand) subject to Act 68 of 2008 and subject to an internal investigation and subsequent approval by the management of the carrier or its appointed agent, whose decision will be final.
12.3 No claim will be considered in cases where goods are insufficiently packed. It is the customer's responsibility to pack goods. Goods must be packed by the customer to withstand handling and traveling. Plastic wrapping is not considered as packaging but only as protection against dampness or dirt.
12.4 The customer acknowledges and agrees that the courier's liability is further limited, having regard to Clause 12.2 to a maximum or R1 million rand per courier's vehicle. The last mentioned means that in the event that the courier vehicle carries different clients' goods together and the number of different clients' goods are multiplied by the maximum liability of R5 000.00 (five thousand rand) and that total exceeds one million rand, the client's claim will be proportionally reduced, subject to Act 68 of 2008.
12.5 The customer hereby exempts the carrier (subject to paragraph 12.2) and indemnifies the carrier against any liability arising, directly from the handling of the goods. This exemption and indemnity includes, but is not restricted to, any liability for any loss or damages arising from the loss of the goods, damage to the goods, theft of goods, the failure to collect or deliver the goods timeously, adequately or at all, or from or to correct address, or from any other cause arising whether any such liability, loss or damage is caused by or arises from breach of contract or delict on the part of the carrier, its servants, agents or employees, or otherwise.
12.6 Subject to this clause 12, any claim for damages in terms of clause 12.2 or otherwise must be reported to the carrier in writing on the date of delivery.
12.7 The carrier accepts no responsibility for the amount of goods inside parcels, only for the amount of parcels.
The carrier reserves the right to employ sub-contractors to act for it. Where the carrier employs independent third parties to perform all or any of the functions required of the carrier, the carrier shall, subject to the provisions of clause 12 above, have no responsibility or liability to the customer for any acts or omissions of such third parties. The reason for this is that the carrier does not have control over its sub-contractors.
14. Permits and consents
The customer shall provide or arrange any permit, consent or approval to handle goods, if so required under Law, to the Carrier.
15. Right to inspection
The carrier may, in order to control goods as well as the safety of its employees, inspect the goods which includes the right to open and examine the goods.
16. Carrier's obligations
It will be deemed that the carrier has discharged all its obligations in terms hereof, once the carrier has delivered or handed the goods to the receiver stated in the waybill at the receiver's address or at any other address the carrier has been requested to deliver to.
17. Applicable law
The applicable Law regarding this agreement is the Law of the United Kingdom. The customer consents to the jurisdiction of the Regional Court, for any claim, action or application which the carrier may bring against the customer.
18. Domicilium and notices
The customer chooses its street address set out in this agreement as its address where all legal documents may be served.
19. General Terms
19.1 The agreement constitutes the sole record of the agreement between the parties. The carrier shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
19.2 No addition to, variation of or agreed cancellation of this agreement shall be of any force or effect unless recorded in writing and accepted by the carrier in writing.
19.3 No relaxation or indulgence which the carrier may grant to the customer shall constitute a waiver of the rights of the carrier and shall not preclude the carrier from exercising any of its rights which may have arisen in the past or which might arise in the future.
The person signing the waybill on behalf of the customer, warrants his or her authority to do so, but the failure of the customer to sign the waybill, will not effect the validity of this agreement as the very act of handling the goods to or receiving the goods from the carrier, will be deemed to be an acceptance by the customer, of all the terms and conditions noted herein.