TERMS AND CONDITIONS OF SERVICE AGREEMENT ENTERED INTO BETWEEN
AFRICA VEHICLE CLEARANCE SPECIALISTS (PTY) LTD AND
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PLEASE READ CAREFULLY
The following general terms and conditions apply to services supplied by us to you:
A. DEFINITIONS AND INTERPRETATION
1.1 Clause headings shall not be used in the interpretation of these terms and conditions.
1.2 The following expressions shall mean the following:
(a) “Agreement” means any contract or agreement for Services between you and us, whether that contract arises out of an offer made by us and accepted by you, or an order made by you and accepted by us, and includes these terms and conditions.
(b) “Days” means calendar days.
(c) “Services” means all or any of the following services we provide:
(i) inspection of Goods; (ii) storage / warehousing of Goods; (iii) distribution / delivery of Goods;
(d) “Goods” means the motor vehicle/s, cargo and/or vehicle parts we transport and/or deliver which form the subject matter of the Agreement.
1.3 Your attention is drawn to these terms and conditions because they are important and should be carefully noted.
B. PRIOR TO PERFORMANCE OF SERVICES
2. QUOTATIONS AND ORDERS
2.1 All terms, conditions, proposals or quotations exchanged between you and us will be subject to these terms and conditions.
2.2 All our quotations are valid for 7 (seven) Days and may be withdrawn or amended without penalty prior to acceptance.
2.3 All quotations are supplied errors and omissions excluded (E & OE).
2.4 All prices quoted or agreed:
(a) exclude Value Added Tax, surcharge and delivery, unless otherwise stated in the Agreement.
(b) are subject to exchange rate fluctuations. All quotations are accordingly subject to the ruling exchange rate on the date of order and the quotation may vary accordingly.
2.5 If you wish to accept a quotation, you must sign it and fax or email it to us before it expires or is withdrawn or amended.
2.6 Any quotation not accepted by you and communicated to us timeously shall lapse and be considered null and void.
2.7 Your official client order number must accompany any Services ordered, which orders must be made in writing.
2.8 Orders cannot be cancelled or shipments deferred or Goods returned except with our prior written consent and upon terms that will indemnify us against all loss, including the profit on any part of the order that is cancelled.
3. DELIVERY OF DOCUMENTS
3.1 All ORIGINAL documents pertaining to your Goods must be in our possession 7 (seven) working days before the vessel arrives in Durban. Failure to do so will result in the Port Authorities imposing late clearance penalties and Port storage charges, both of which will be for your account. No claims will be accepted for your vehicle if it has been stored at the storage facility.
3.2 If there are errors in the documentation received from the suppliers or from you, we cannot be held responsible for any costs or delays that may arise in rectifying such errors.
3.3 A Letter of Authority will be e-mailed to you. You are required to sign this and send it back to us together with your ID/passport. In the case where the Goods belong to a company the authorized signatory of the company must sign the Letter of Authority.
3.4 If we are required to amend or correct any document, we will send it to you and you will be required to forward us the amended document.We will be entitled to charge you R250-00 plus VAT for each corrected document that needs to be submitted to SARS.
3.5 If you are going to use another agent and require us to hand over documents to them:
(a) you must inform us at least 24 hours after you receive the first notification from us;
(b) We require your agent’s details at least 5 working days before the ship arrives, failing which the Goods will be cleared and moved out of the port to either a bonded area in Lesotho or Botswana or to the South African State Warehouse (South African Customs and Excise Laws do not allow for cars to be stored in any private storage areas).
(c) If your agent requests documents after the specified period in (b) then there will be a cancellation fee of R1 500-00 plus VAT for us to cancel any documents that we have submitted.
(d) If any South African Government department requires the Goods for inspection, all charges and costs associated with the inspection are for your account.
4. INSPECTION OF GOODS
4.1 When your Goods arrive in the Durban Port, they will be off-loaded and inspected by the Port Authorities. A copy of this InspectionReport (T918) is only available to the Shipping Agents. If you need a copy of this Inspection Report you will need to get it directly from the Shipping Agents (it is not made available to us).
4.2 Before we collect your Goods from the Port, we will inspect them to ascertain damages and to see if standard items (OEM) such as radio, spare wheel, wheel spanner & jack, etc. are intact.
4.3 Dents and scratches are NOT noted by the shipping line, the supplier or us. No claim for dents and scratches are covered by any type of insurance while the Goods are in transit.
4.4 If there are any damages and/or any of the standard items are found to be missing it will be brought to the attention of the Port Authorities. They will acknowledge the discrepancy on a form T896. Together with our Inspection Report and the T896, you can then seek redress with the Shipping Agent and / or your supplier.
4.5 It should be noted that any damages and/or theft of items can occur at the port of load, on the vessel or in the Durban Port. It is important that you have a loading report (from your supplier) to compare against the T896 form.
4.6 When you receive the Goods you will be allowed to inspect them and you must inform us by way of written notice, immediately upon receiving your Goods if there are further damages and/or theft of items other than what is specified on the inspection reports. All goods must be collected 24hours after delivery has been completed. Should you fail to notify us timeously of any claim you may have in terms hereof, such failure shall constitute a complete waiver of any such claim.
4.7 The mechanical condition of your vehicle is not checked. Please address with your supplier.
5. TRANSPORTATION OF GOODS
5.1 We agree to transport your Goods to venues agreed by us and you in writing from time to time.
5.2 Limitation of Liability
(a) You shall not have any right, remedy or claim of any nature whatsoever against us for any loss, damage (whether general, special, consequential), expenses or injury, which you may suffer directly or indirectly, irrespective of whether such loss, damage, expense or injury shall have been caused through or as a result of the negligence of us or any of our employees, servants or agents, however arising.
(b) You hereby indemnify us and hold us harmless against all or any claims arising from the above.
(a) Your Goods will be covered by Goods In Transit (GIT) insurance. Due to the Goods being second hand, this insurance does not cover any minor damages and scratches to the Goods nor does it cover any glass on the Goods in whatever form. It covers total loss or major damages only.
(a) Unless we agree to the contrary in writing, you will remain the owner of the Goods but we shall have a lien over the Goods until we part with possession or you make payment of our invoice/s (whichever occurs first).
5.5 Transport Costs
(a) Transport costs shall be charged in accordance with our usual charges as reflected in our invoice/s.
5.6 No Agency
(a) In all our dealings with third parties, we shall clearly indicate that we are acting as a principal.
(b) Nothing in the Agreement or these Terms and Conditions shall constitute or be deemed to constitute a partnership between you and us, or constitute or be deemed to constitute us as your agent for any purpose whatsoever.
(c)We shall have no authority or power to bind you or to contract in your name or create a liability against you in any way or for any purpose.
6. DELIVERY OF GOODS
6.1 Delivery and Risk
(a) We will advise you of our anticipated delivery schedule and will try to meet this schedule to the best of our ability.
(b) In the event of a delay the Agreement will not be terminated and the date of performance will be extended for a period of time equal to the period of the delay.
(c) Unless agreed in writing to the contrary, risk in and to the Goods shall pass to you upon delivery to your nominated address. We assume no liability for any loss, damage, or destruction of the Goods after delivery is made.
6.2 Goods that are purchased, CIF DURBAN, will have the following default delivery destinations unless otherwise specified by you:
(a) Zimbabwe – Beitbridge border post
(b) Zambia – Chirundu
(c) Lesotho – Maseru Bridge – customs bond store
(d) Botswana – Gaborone border post
(e) Swaziland – Manzini border post
(f) DRC – Chirundu border post
6.3 If you require an alternative delivery destination please inform us by e-mail when you receive the first notification from us, or a minimum of 7 (seven) working days before the vessel arrives in Durban.
Please note:We are unable to change the delivery destinations once documents are processed through South African Customs. Any changes that may be requested thereafter will be charged at R500-00 plus VAT per document and may be stopped by customs for inspection.
6.4 Goods over 5 metres in length and 2 metres in height cannot be delivered by a conventional car carrier. If your Goods exceed the maximum dimensions, then higher delivery rates will apply. Such rates will be given to you separately and are not part of our initial quote. Please note that this may affect delivery dates.
6.5 Payment of invoice/s before release of Goods:
(a) Goods that are fully paid up [inclusive of Duty charges]:
(i) Your Goods will be delivered to their destination and offloaded in a storage facility, as required by the law in that country.
(ii) For security reasons, all documents for your Goods and any other complimentary items that your supplier might have sent will be handed over to the border agents, or customs as required by that country’s laws, as set out below.
(b) Goods that are not paid up:
(i) If we have not received your payment for our services at least 6 (seven) working days before the vessel arrives in Durban, your Goods will be transferred to a storage facility. Release of your Goods will not be given until you have paid all charges.
(ii) If you wish to collect your Goods, then you will have to make payment to us for all outstanding invoices and charges.
6.6 We deliver Goods to the following destinations and subject to the following terms and conditions:
(a) BEITBRIDGE, ZIMBABWE:
(i) Should your Goods be paid up, Zimbabwean Law requires us to drop off your Goods at Malindi Transit Shed / Manica Freight, Zimbabwe/ Beitbridge Transit Shed, Zimbabwe / Zimbabwe Revenue Authority (ZIMRA).
(ii) For storage rates, please contact below:
(a) Malindi Transit shed ,Zimbabwe. The contact persons are: Lawrence M Nguluvhe on +263 778980219 Email: Operations@malinditransitshed.co.zw
(b) Manica Freight , Zimbabwe. The contact persons are: Hinton Sibanda on +263 772393042. Email: firstname.lastname@example.org
(c) Beitbridge Transit Shed, Zimbabwe. The contact persons are: Tich Mushipe on +263 631126152 Email: email@example.com
(ii) If we have not received your payment, please refer to clause 6.5(b) above.
(b) PLUMTREE, ZIMBABWE:
(i) Should your Goods be paid up, your Goods will be left in a ZIMRA storage facility, as required by Zimbabwean Law.
(ii) Your original documents will be left in the care of Silksands Investments.
(iii) The contact persons are:Gerald on +263 772704009 or Liveson Chifura on +263 772830365. Email: firstname.lastname@example.org or email@example.com
Please enquire with the above persons about the storage rates and also their charges should you select them to be your Clearing Agents.
(iii) If we have not received your payment, please refer to clause 6.5(b) above.
(c) HARARE, ZIMBABWE
(i) Requirements for delivery to Harare:
a. Clause 6.5 applies;
b. Proof that Duty and VAT have been paid to ZIMRA at least 5 working days before the ship arrives.
(ii) Your Goods will be delivered to Southern Business Services (SBS).
The contact person is: Ms Farai Moyo: +263 77313895 Email: firstname.lastname@example.org
(iii) Goods that do not fulfil the requirements in clause (i) will be dropped off in the ZIMRA yard and our services will be deemed to be completed. No refund will be issued for the difference between the cost of Harare and Beitbridge.
(d) GABORONE, BOTSWANA:
(i) According to Botswana Law, all Goods destined forBotswana must be cleared into a bond store. We only transport Goods destined for Botswana to Gaborone.
(ii) Should your Goods be paid up, your Goods will be left in a bond store of your choice provided that the said bond store gives us a letter of acceptance of your Goods, at least 5 working days before the vessel arrives.
(iii) There are several Bond Stores in Gaborone, Botswana. When you have identified the Clearing Agent you want to use, please furnish us with the name of the company, contact person, telephone numbers and email addresses so that we can obtain certain information from them for the purpose of processing documentation for submission to Customs& Excise.
(iv) If you do not have a Clearing Agent: you can use Estamok Freight (PTY)LTD, Plot 10200 Mokolwane Road, Broadhurst Industrial, Gaborone. The contact persons are: Karabo Mogale on +267 3923085 or +267 73889265.Email: email@example.com
Please enquire with the above persons about the storage rates and also their charges should you select them to be your Clearing Agents.
(v) If your Goods are not paid up, we will deliver your Goods to Estamok Freight, Gaborone. You will need to pay us all outstanding invoices relating to your Goods (including storage charges) before your Goods will be released to you.
(e) MASERU BRIDGE, LESOTHO:
(i) Your Goods cannot be dispatched from Durban without our first having proof that you have paid all our charges and the customs duty and VAT to the Lesotho Revenue Service. Please ask your agent for these documents.
(ii) if you do not have an agent we recommend that you use Dorcas Logistics, Block A, Teba Complex, Moshoeshoe Road, Maseru 100, Lesotho. The contact person is: Ms. Mahali Masithela on +266 2232 7193 / +266 2832 7193 Email: firstname.lastname@example.org. Please enquire with the above person about the storage rates and also their charges should you select them to be your Clearing Agents.
(iii) If your Goods are not paid up, it will either be left in the port or removed to a bond store in Lesotho. You will need to pay us all outstanding invoices relating to your Goods (including storage charges) before your Goods will be released to you.
(f) CHIRUNDU, ZAMBIA:
(i) Should your Goods be paid up, your Goods will be left in the Government Storage facility at Chirundu and your original documents will be in the care of Josh Mac. The contact person is: Mr Joshua Ngoma, on +260 955782170 or +260 968588545 or +260 978941278. Email: joshmarkfrtlogistics.gmail.com
(ii) If we have not received your payment, please refer to clause 6.5(b) above.
(g) MANZINI, SWAZILAND:
(i) Should your Goods be paid up, your Goods will be left in the Government Storage facility and your original documents will be in the care of Sharp Freight Swaziland (PTY) LTD; P.O.Box 1964, Plot 663, Tabankulu street, Matsapha M202, Swaziland. The contact person is: Mr J.M. Vilakati on +268 25186368/78 or +268 76044405; fax +268 25185580. Email: email@example.com
(ii) If we have not received your payment, please refer to clause 6.5(b) above.
D. REVIEW OF PERFORMANCE
7.1 Our preferred and primary form of communication is via email, and you must provide up-to-date contact details including phone, email, and address at the time of ordering any Service, and on any subsequent change in those details.
8. KEEPING OF RECORDS
8.1 We shall keep full, proper and up to date books of account and record showing clearly all transactions and proceedings relating to the Services, and shall allow any person authorised by you in writing to have access to the said books and records, and take such copies thereof as you may require at our offices and during our usual business hours.
9. TEMPORARY CESSATION OF SERVICES
9.1 In the event that we are unable to offer Services to you for a period of not less than two consecutive Days, but not more than 2 weeks, we shall advise you in writing on 3 Days written notice of this “temporary cessation of services”.
9.2 In this written notice, we shall notify you of an alternative service provider who shall for the duration of the “temporary cessation of services”, be available to provide an ongoing service to you on the same terms and conditions contained in the Agreement and these terms and conditions. 9.3 In effect, the replacement service provider shall “step into our shoes” for the duration of the temporary cessation of services and we shall remain liable for all duties and obligations in terms of the Agreement, as well as being entitled to all rights contained in the Agreement.
9.4 Notwithstanding the above, we will not be liable for delays in performance, including delivery, or for failures to perform, including failure to deliver, due to
(a) any causes beyond our reasonable control, or
(b) acts of God, your acts, acts of civil or military authorities, governmental regulations or priorities, strikes or other labour disturbances, fires, riots, wars, or natural disasters, including epidemics, droughts, floods, or transportation interruptions.
E. INVOICING AND PAYMENT
10.1 We are registered VAT vendors. Accordingly, tax invoices will be raised for all Services we supply to you.
10.2 All invoices will be subject to these terms and conditions unless specifically stated otherwise.
10.3 Invoices will be generated at the times and for the amounts reflection in the quotations accepted by you.
10.4 In the event of a conflict between the terms of any invoice and these terms and conditions, these terms and conditions shall prevail.
11.1 You shall pay all tax invoices in full and without deduction or demand upon presentation thereof.
11.2 When doing a bank transfer please quote our reference number, which starts with DBN… . It is your unique number. Please note that it takes 4 to 5 working days for international money transfers to reflect in our account. All bank charges are for your account.
11.3 Please refer to document attached with invoice titled “Acknowledgement Of Debt”.
11.4 Should you fail to make any payment on due date, all amounts owing by you to us from whatsoever cause, whether or not the date for payment has arrived, will immediately become due and payable by you and you shall immediately forfeit all discounts which may have been granted to you.
11.5 If any amount is not paid on due date, we shall be entitled to charge interest at the maximum permissible rate of interest applicable in law, from due date until date of payment, both days included.
11.6 Any billing disputes must be lodged in writing within 7 Days from date of invoice.
11.7 We shall be entitled in our sole and absolute discretion to appropriate any amounts received from you towards the payment of any cause of debt or amount owed by you to us whatsoever.
12. WHOLE AGREEMENT
These standard terms and conditions form the entire agreement between you and us regarding the subject matter hereof, save insofar as any incidental documentation (such as credit application forms, quotations) may be required for reference purposes to establish variables (such as prices and quantities) which are specific to a contract and are not recorded herein.
13.1 No variation, amendment or consensual cancellation of the Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of the Agreement shall be binding unless recorded in a written document signed by a duly authorized representative from both you and us.
13.2 We may, however, vary these terms and conditions (including pricing and any other terms) at any time and all agreements concluded or Services provided after these variations will be subject to these variations.
13.3 If you are materially worse off by any variations made after you have been provided with the Services, we will give you 30 Days’ notice of that change (unless any change is required by law or necessary to prevent fraud or for security or technical reasons, in which case we will give you as much warning as we reasonably can).
14.1 You acknowledge having read and understood the Agreement and these terms and conditions and confirm that you are not entering into the Agreement on the basis of any representations not expressly set forth in it.
14.2 Neither of us shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between you and us or not.
15. NO WAIVER
15.1 No extension of time or waiver or relaxation of any of the provisions or terms of the Agreement or other document issued or executed pursuant to or in terms of the Agreement, shall operate as an estoppel against either of us in respect of our rights under the Agreement, nor shall it operate so as to preclude either of us thereafter from exercising our rights strictly in accordance with the Agreement.
15.2 No relaxation which we may have permitted on any occasion in regard to the carrying out of your obligations shall prejudice or be regarded as a waiver of our rights to enforce those obligations on any subsequent occasion.
15.3 In the event that any provision of the Agreement or these terms and conditions conflict with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of the Agreement or these terms and conditions shall be controlled by the statute, ruling or order.
16.1 All clauses in the Agreement or these terms and conditions are separate and severable from each other and shall each be capable of standing on their own. Any provision or clause of the Agreement or these terms and conditions which is or becomes unenforceable or illegal or void may be removed or severed from the Agreement or these terms and conditions as if it never formed part of the Agreement or these terms and conditions, while the remaining provisions or clauses shall continue to operate and be of full force and effect.
16.2 In the event of any expiration, termination or cancellation of the Agreement, provisions hereof which are intended to continue and survive shall so continue and survive.
17.1 This document is confidential and issued for your information only. It is subject to copyright and may not be reproduced in whole or in part without our written permission.
17.2 It is our policy to respect the privacy of our customers. We will not monitor, edit, or disclose any personal information about you or your use of the Services without your prior permission unless we have a good faith belief that such action is necessary to:
(a) conform to legal requirements or comply with legal process; or
(b) protect and defend our rights or property.
17.3 Subject to the above, we will treat all information in relation to your affairs or business or method of carrying on business as strictly confidential and will take reasonable steps to ensure that our employees and contractors do likewise.
18.1 You shall not be entitled to cede or assign your rights and/or obligations in terms hereof to any third party unless we consent thereto in writing.
19.1 The physical address given by you in your order, or the address to which the Goods are delivered, shall be the address you have chosen where summonses, legal documents and notices can be served on you (“domicilium”).
19.2 We may also serve notices on you by email and we shall use the email address given by you in your order, or the email address used by you in correspondence with us (“email domicilium”).
19.3 We choose our domicilium and email domicilium at the addresses specified on our website (www.avecs.co.za).
19.4 Either of us shall be entitled from time to time to vary our domicilium or email domicilium on ten (10) Days written notice to the other.
19.5 Any notice which:
(a) is posted by prepaid registered post or hand delivered to the other party’s domicilium and shall be presumed, unless the contrary is proved by the party to whom it is addressed, to have been received by that party on the seventh (7th) day after the date of posting or on the day of delivery as the case may be; or
(b) is transmitted by email to the other party’s email domicilium shall be deemed to have been received by the party to whom it is addressed on the date of transmission or, if the transmission is made out of normal business hours, on the first business day following after the date of transmission.
20.1 If either you or we:
(a) breach any of the terms or conditions of the Agreement and fail to remedy this breach within 7 (seven) Days after the receipt of written notice from the other party;
(b) commit any act of insolvency;
(c) endeavour to compromise generally with y/our creditors or do or cause anything to be done which may prejudice the other party’s’ rights hereunder
(d) allow any judgment against you/us, in excess of R200 000,00 (Two Hundred Thousand Rand), to remain unsettled for more than 10 (ten) Days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
(e) is placed in liquidation or become subject to business rescue proceedings (in either case, whether provisionally or finally) or, being an individual, y/our estate is sequestrated or voluntarily surrendered;
(f) allow any amount due to the other to be overdue for more than 30 (thirty) Days;
the other party shall have the right, as and where applicable without prejudice to any other right which that party may have, to:
a) suspend or terminate the Services;
b) in our case, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of our obligations hereunder as well as under any other contract with you until you have remedied the breach; and/or
c) cancel the Agreement and claim damages (subject to clause 5.2 above).
20.2 The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
20.3 If you breach the Agreement and this causes us to suffer damages of any nature whatsoever, we shall not be required to attach any of your Goods in execution, and shall be entitled to retain a lien over these Goods in reduction of any debt due by you to us.
20.4 In the event of your insolvency, without derogation of rights, we will be entitled to cancel any outstanding order during the period allowed for filing of claims against your estate and will be paid for our cancellation charges.
21.1 In the event of any dispute arising as to the amount or calculation of any fee or charge to which we are entitled, the dispute shall be referred for determination to our auditors. They shall act as experts and their decision shall be final and binding on you and us. The cost of the determination shall be paid on demand by the party against whom the determination is made, or as determined by the said auditors.
21.2 All other disputes arising out of our supply of Services shall, unless resolved amongst us within ten (10) Days, be referred to arbitration.
21.3 The arbitrator shall be a person agreed to by both of us, and failing agreement, be a person nominated by the President of the Association of Arbitrators.
21.4 It is the intention of both parties that the arbitration:
(a) Shall be held in Durban
(b) Shall be held in a summary manner and completed within 21 Days of the appointment of the arbitrator.
21.5 The decision of the arbitrator shall be final and binding on both parties and may be made an order of court.
22. APPLICABLE LAW AND JURISDICTION
22.1 The Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
22.2 You hereby consent in terms of Section 45 of the Magistrates’ Court Act of 1944 to any legal proceedings being instituted in the Magistrates’ Court of any district having jurisdiction over you by virtue of the provisions of Section 28(1) of the said Act. Notwithstanding such consent, we shall have the option of instituting proceedings against you in the High Court of South Africa.
Phone: +27 (0) 31 266 0859 | Fax: +27 (0) 266 0855 | Email: firstname.lastname@example.org | Website: www.avecs.co.za
Physical Address: 9/11 University road, Imperial Office Park , Unit 3, Westville , Durban , 3631
Company Reg. Number: 2016/305015/07 | VAT Registration Number: 4460178926