Kushesh Express – Terms and Standard Conditions Of Carriage

 

1. For the purpose of the paragraphs set out below:

1.1."The Company" shall mean Kushesh Trading.

1.2."The carriage" shall mean all forms of transport and related activities undertaken by the Company on behalf of clients.

1. 3."The client" shall mean the party on whose behalf the Company took possession of the goods in good faith, whether the sender, the party billed, the consignee, the true owner, or any other party who can be reasonably held to be the party on whose behalf the Company has rendered the service. The Company has a right to refuse to accept for carriage any goods without giving reasons for refusal. It is recorded that the Company is not a public or common carrier.

2. The Company will in its sole discretion select the methods of transport and handling to be used in the carriage, regardless of the service requested by the sender or the client.

2.1 The instruction from the client to the Company in respect of any carriage shall be made on the Company's official dispatch
document form or equivalent instruction medium, duly completed and tendered together with the goods to the Company. If the Client is not
the sender of the goods, it is the Clients’ responsibility to ensure that the correct instructions are given at the time the goods are tendered.
The Company expressly does not undertake to check or correct instructions and will ignore verbal or transmitted requests to do so. The
person who signs the dispatch document or has prepared its alternative shall be regarded as the agent of the client for the purpose of
instructing the Company. In the event that the client is not the owner of the goods, the client warrants that it is duly authorised to enter
into this agreement on behalf of the true owner of the goods.

2.2 The Company's charges in respect of the carriage shall be levied in accordance with its published tariff list applicable at the time
of shipment or alternatively the quotation furnished by the Company to the client on condition that the service is carried out within 30
(THIRTY) days of such quotation, together with any variations in force at that time, unless an alternative agreement has been committed to
writing and signed by an authorised representative of the Company. The client agrees to be bound by such tariff and variations. External
disbursements made in respect of the carriage, including but not limited to, duties and taxes, shall be recovered at cost from the client in
addition to the Company' charges. The client is fully responsible for ensuring that all requirements relating to the carriage of dangerous and
hazardous goods by air or by any other means of transport, are complied with, including but not limited to, proper packaging, preparation
of the legally required declarations, labels and warnings, and the physical attraction of the Company's attention thereto. A mere declaration
as to contents is not sufficient to discharge the client's obligations in this regard. The client is cautioned to avoid tendering to the Company,
parcels containing fragile or valuable goods, and should he do so he is obliged to so pack and label his goods to minimise the additional risk to which such items may be exposed. The client indemnifies the Company against any loss or damage (including consequential damages), arising from the client's failure to observe the terms of this clause.

3. The Company's liability to the client in respect of goods in its care shall terminate when the Company on delivery to the consignee receives a clean receipt. A Clean receipt is deemed to have been obtained by the Company unless the consignee, at the time of delivery, brings to the attention of the Company in writing, any loss or damage to the goods.

4. The client acknowledges that the Company does not insure the client's goods and will not do so unless written agreement is reached prior to the shipment taking place, for the Company to insure the goods on behalf of the client, which insurance premium will then be payable by the client to the Company together with the Company's usual charges. The insurance premium payable by the client to the Company shall be based on the value of the goods declared by the client to the Company prior to shipment, and the client agrees after having declared such a value, in all circumstances to be bound to limit the value of any claim relating to loss or damage to such goods either against the Company or against the insurers, to the said value declared.

5. Subject to what is stated above, in the event that it has been agreed in writing prior to the shipment that insurance will be taken out in respect of the goods carried by the Company, any excess or first payment payable in respect of such policy will be payable by the client and not the Company notwithstanding the circumstances of loss or damage to the goods whether caused by the Company's negligence or otherwise.

6. In the absence of any written agreement being reached between the Company and the client prior to shipment regarding insurance, the Company will accept no liability whatsoever in respect of loss or damage to goods notwithstanding the cause of the loss or the damage to the goods or even if such loss or damage was caused by the Company or its representatives negligently.

7. In no circumstances whatsoever will the Company accept any liability for consequential losses of any kind.

7.1 In all circumstances, the client indemnifies the Company against any claim of whatsoever nature, which may be made against the
Company by any other person or entity as a result of the loss or damage to the goods.

7. 2.The Company may in its sole discretion, choose to replace or repair insured goods which are lost or damaged and with its insurer shall
retain all rights of recovery or salvage over the goods. The Company is entitled to cancel any order made by the client with it for any cause beyond the Company's control or caused by circumstances of force majeure, without penalty to the Company, which circumstances shall include but not be limited to, inability to secure labour, power, materials or supplies, or due to an act of God, war, civil disturbance, riot, state of emergency, strike, lock out, or other labour dispute, fire, flood, drought or legislative enactment. Under no circumstances whatsoever will the client be entitled to withhold payment of any amount due to the Company in respect of services rendered by the Company, beyond the due date in respect thereof. Without departing from the generality of the aforesaid, this clause will apply in particular where goods have been lost or damaged while in the Company's possession and under no circumstances is the client entitled to set off its alleged damages or loss, against any amount due, owing and payable to the Company from time to time, in terms of invoices and statements rendered by the Company. Any claims in respect of what is stated in clause 7 must be submitted in writing to reach the Company at the Company's principal place of business within one month of the date of dispatch in respect of claims relating to the above. Claims submitted after this period will be repudiated on the grounds of late submission regardless of any other circumstances of loss or damage. The client indemnifies the Company against any loss or damage, direct or indirect, (including consequential damages), arising from the client's failure to observe the terms of this clause.

8. If the Company is unable for any reason to effect delivery of the goods, reasonable steps will be taken to return the goods forthwith to the
client. The client shall be responsible for the costs of carriage, attempted delivery and return of the goods. If the Company is unable to effect return of the goods, as a result of any fault on the client's part, it shall be entitled to sell the goods through statutory approved agencies, at a market related price so as to defray costs incurred by it after giving notice of such sale by registered post to the client.

9. The Company reserves the right to sell any goods belonging to the client at a market related price through statutory approved agencies and to apply the proceeds thereof against any arrear indebtedness of the client to the Company arising out of services rendered. The Company shall give the client fourteen days written notice by registered post, of such sale. The client shall remain responsible to the Company for all charges until they are paid.

10. The Company shall not collect any monies at the time of delivery and no employee of the Company is authorised to do so. All payments
made by the client or any third party on behalf of the client, shall be made free of any deduction or set off to the Company at its chosen domicile address.

11. All goods and documents relating to the service performed by the Company for the client as well as all refunds, repayments, claims and
other recoveries, shall be subject to a special and general lien and pledge either for monies due in respect of such goods or for other monies due to the Company from the client, sender, owner, consignee or their agents. If any monies due to the Company are not paid within fourteen days after notice has been given to the person from whom the monies are due that such goods or documents are being detained, such goods and documents may be sold through statutory approved agencies by auction or otherwise or in some other way disposed of for value at the sole discretion of the Company and at the expense of such person, and the nett proceeds applied in or towards the satisfaction of such indebtedness. The company shall be entitled to retain any item delivered to it by the client as a pledge in favour of the Company for present and past debts and the Company shall be entitled to retain or realise such pledges as it deems expedient, the said realised value of such pledged goods then being offset against the client's indebtedness to the Company. The client agrees that the amount specified in a tax invoice issued by the Company shall be due unconditionally:

11.1 Cash on order; or

11.2 If the customer is a credit approved customer, within thirty days from the end of the month in which the Company sent a tax invoice
to the client.

12. The client agrees to pay the amount on the tax invoice via Electronic File Transfer (EFT). All discounts granted to the client by the Company shall be forfeited if payment is not made in full on due date. The client agrees that the amount due and payable to the Company may be determined and proved by a certificate issued and signed by a director of the Company, which certificate shall be binding and prima facie proof of the indebtedness of the client to the Company. Any printout or computer evidence tendered by the Company in any proceedings to resolve any dispute between the parties shall be admissible evidence and the client shall not object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence or that the requirements of the Computer Evidence Act have not been met.

13. The client agrees that interest shall be payable on any monies due to the Company at the maximum legal interest rate prescribed in terms of the National Credit Act, or any other applicable legislation, from time to time. The client expressly agrees that no debt owed to the Company by it shall become prescribed before the passing of a period of ten years from the date on which the debt falls due. The client agrees that if any account is not settled in full on due date, the Company is entitled to immediately institute legal action or to obtain legal advice in respect thereof and the client shall be liable to the Company for all legal expenses incurred in this regard on the attorney and own client scale including costs of advocates, if necessary, notwithstanding the fact that no legal action is actually commenced. The client shall also be liable for any tracing costs, valuation fees or collection commission incurred by the Company.

 

13.1 In the event of litigation or arbitration or any other form of dispute resolution the client agrees that the Company shall not be required in any circumstances to furnish security for costs in terms of any of the relevant provisions of the Rules of either the Magistrate's Court Act, the Superior Courts Act or any other applicable legislation. The client hereby consents to the jurisdiction of the Magistrate's Court in terms of Section 45 of the Magistrate's Court Act No. 32 of 1944 as amended, for all claims that the Company may have against the client. This clause does not preclude the right of the Company to institute any action in the High Court of South Africa.

14. The client chooses as their domicilium citandi et executandi for the delivery of all Court processes and any other notices hereunder, the
address which appears on the dispatch document or the address which appears on the credit application form.

15. This agreement constitutes the sole record of the agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.

16. The Customer undertakes to inform Kushesh Express in writing within 7 days of any change of Director, Member, Shareholder, Owner or
Partner or address or 14 days prior to selling or alienating the Customer’s business and failure to do so will constitute a material breach of this agreement.

17. No addition to, variation of, or agreed cancellation of this agreement shall be of any force or effect, unless reduced to writing and
signed on behalf of both parties. No relaxation or indulgence that any party may grant to any other shall constitute a waiver of the rights of that party and shall not preclude that party from exercising any rights which may have arisen in the past or which may arise in future.

18. The invalidity of any part of this agreement shall not affect the validity of any other part of the agreement and any invalid clause may be
severable from the agreement without affecting the validity of the rest of the agreement.

19. This agreement and its interpretation are subject to the laws of the Republic of South Africa.