Terms and Conditions of Contract
1Interpretation
1.1In these standard terms and conditions of contract, except where the context clearly indicates a contrary intention:
1.1.1'The carrier' means Buks Haulage Limited and associated companies;
1.1.2'the customer’ includes the person who accepts the quotation given by a representative of the carrier and /or who instructs the carrier to perform a service in terms of a contract;
1.1.3'contract' means any agreement between the carrier and the customer in terms of which any service is rendered to, or for and on behalf of, the customer, including the conveyance, handling and /or storage of anything (hereinafter referred to as 'the goods') and/or containers, and includes the agreement (hereinafter referred to as 'this contract') arising from acceptance by the customer of the quotation;
1.1.4'Vehicle' means any road vehicle upon or in which the goods and /or containers are conveyed;
1.1.5'Container' means any container (other than a vehicle) in which goods are conveyed and /or stored;
1.1.6'The fee' means the consideration payable to the carrier in terms of a contract;
1.1.7the singular includes the plural and vice versa, words importing the neuter gender include the other genders, and the word 'person' includes a company, close corporation and any other juristic person and a partnership and any other body of persons (whether corporate or incorporate).
1.2All contracts shall be exclusively interpreted in accordance with and be governed by the laws of the Republic of Zambia in all respects. The headings to the clauses of this document shall not affect its interpretation.
2Quotations
2.1The carrier shall not be bound by any quotation, which the customer purports to accept after 30 (thirty) days have elapsed since the date of such quotation, and shall be entitled to withdraw it before acceptance thereof.
/ BHL terms and conditions for transportLatest update: November 2016 / Page 1 of 8
2.2The customer hereby warrants that it shall have fully disclosed to the carrier all details regarding the type, nature, physical properties, and chemical properties and composition of the goods so as to enable the carrier to comply with the provisions of the Road Transportation Act, 1977 (as amended) and any other laws or regulations regarding the proposed conveyance and the safe handling of the goods.
3Carrier's fees / Rate
3.1The fee is exclusive of value added tax (within the borders of Zambia) and not applicable when crossing borders, rateswill be calculated inter alia on quantities, properties, densities, dimensions, mass, specifications, chemical composition and other technical data pertaining to the goods and/or containers, available loading and offloading hours and other information supplied by the customer which may affect the carrier's costs, which have been accepted by the carrier in good faith and whose correctness the customer hereby warrants. Any subsequent deviation therefrom shall entitle the carrier to a prorata increase in the fee quoted to take into account such deviation, or to cancel the contract concerned.
3.2The carrier shall be entitled to discuss a prorata increase in the fee quoted by it, if after quoting
3.2.1an increase occurs in the rate of value added tax or in the cost to the carrier of fuel, tyres, spares, materials, depreciation, licences, wages, toll road fees, insurance and/or administration expenses, and/or of any vehicles or other capital equipment which are to be specially acquired by the carrier for use in connection with the contract concerned; and/or
3.2.2it is obliged due to circumstances beyond its reasonable control to use longer routes than those intended by it at the time of quoting.
3.3 In the event of any dispute between the parties in terms of or arising out of 3.2.1, then the said dispute shall be referred to the auditors for the time being of the carrier, whose decision shall be final and binding upon the parties.
3.4 The fee shall always be payable as if the vehicle or container concerned was loaded to its maximum capacity regardless of the quantity of the goods which may actually have been conveyed or contained therein.
3.5 The customer shall pay an additional fee at the carrier's usual rate therefore if it loading and/or off-loading of the goods and /or containers takes place at more than one place en route or as per agreement.
3.6 Contractual Term / Quantity and service – As per agreement – if and when loads are available.
3.7 Commencement and Duration: if and when available ______until ______.
4Payment
4.1As per mutual agreement.
4.2Without derogating from any of the carrier's other rights hereunder, it shall be entitled to claim and recover on demand interest from the customer on all amounts payable by the customer in connection with a contract which are overdue at the maximum rate permitted by law, from date of invoice.
4.3Notwithstanding that the carrier may agree to collect and/or receive payment of the fee from a third party, the customer is personally liable to pay same to the carrier on demand if such third party fails on demand to pay same to the carrier.
4.4Nothing contained in this clause shall be construed as a waiver by the carrier of its rights against the customer and in particular its rights to sue for all such payments which may be in arrears.
- Carrier's liability
- Subject to the other provisions of this clause 5, the carrier shall only be liable for any damage to the goods and/or containers and /or for any loss, destruction, contamination or deterioration of the goods and /or containers which is caused by and is a direct consequence of the wilful misconduct or negligence of the carrier and/or of the carrier's employees acting within the course and scope of their employment with the carrier.
5.2The carrier's liability in terms of clause 5.1
5.2.1shall not exceed the actual manufactured cost to the customer or the purchase price actually paid by the customer (as the case may be) of the goods and /or container concerned, as at the place of consignment and as at the date of such damage, loss, destruction, contamination, deterioration or non-delivery; (does
5.2.2shall include liability for consequential loss flowing from contamination of the goods to the extent only of any proceeds actually received by the carrier in terms of any insurance policy the carrier may have effected in respect thereof;
5.2.3Save as is expressly provided in clause 5.2.2, shall not include liability for any indirect or consequential loss and /or damage (including, without limitation, loss of profits);
5.2.4as limited in terms of the foregoing provisions of this clause 5.2, shall be further limited to such extent as a court of law may deem just and equitable having regard to the degree to which the misconduct or negligence referred to in clause 5.1 caused the damage, loss, destruction, contamination deterioration or non-delivery concerned.
5.3No claim for contamination of or damage to the goods or a container, or for loss, shortage, non-delivery or late delivery of the goods or a container shall be enforced and the carriers shall not be liable therefore unless such claim (particularising the facts and /or circumstances from which it is alleged to have arisen and how it is calculated) has, in addition to the notice to be given in terms of clause 6.2.10 been lodged by telefax or otherwise in writing with the carrier within 14 (fourteen) days from the date on which the carrier first received such goods into the carrier's own actual physical possession. This clause shall not apply to a claim for consequential loss flowing from contamination of the goods if the carrier has affected insurance in respect thereof and the insurer concerned is liable for and actually pays such claim in terms of the relevant policy.
5.4The customer hereby indemnifies the carrier, its directors, officers, employees, agents and subcontractors and shall hold them harmless against all claims, demands or legal proceedings which might be made or be instituted by any person against any one or more of them (including all legal costs whatsoever which they may incur in resisting the foregoing and in enforcing this indemnity) by reason of any loss, destruction, contamination, deterioration, late delivery or non-delivery of and/or damage to the goods and/or containers arising out of or in connection with a contract to the extent only that the carrier is not expressly liable for same in terms of the foregoing provisions of this clause 5.
6.Loading and off-loading
6.1Where the customer is not the actual consignor and/or consignee of the goods and/or containers, the customer shall procure and ensure that the actual consignor and/or consignee thereof and/or their employees and/or agents shall perform all of the customer's obligations stipulated in this clause 6 for and on behalf of the customer.
6.2The customer shall without cost to the carrier
6.2.1Provide safe, convenient and adequate loading and off-loading points and access to same for the vehicle, and safe and adequate labour and equipment with which to load and off-load the vehicle:
6.2.2Furnish the carrier with hazard warning panels in respect of the goods where same are required by law to be displayed;
6.2.3Ensure that loading and off-loading of the vehicle will take place at such points and during such times as it has agreed with the carrier;
6.2.4Where the goods are to be conveyed inside a container ensure that such goods are securely packed in a suitable container so as to prevent loss of such goods therefrom and /or damage to such goods therein;
6.2.5prior to loading the goods onto/into the vehicle or container, ensure that such vehicle or container and all hoses and couplings to be used in connection therewith are fit for use and in particular are sufficiently clean, dry, odourless and empty so as to prevent contamination of such goods thereby or therein, and (where applicable) after a container has been filled, ensure that the inlet and outlet points thereof are sealed with numbered seals of a type approved by the carrier and supplied by the customer, and that the serial numbers of such seals are recorded on the carrier's delivery documents;
6.2.6load the goods and their containers onto/into the vehicle, and shall off-load same therefrom, and in so doing shall be exclusively responsible for the safe and proper execution of such loading and off-loading operations, including (where applicable) the correct and systematic packing and unpacking of such goods into/onto therefrom so as to prevent damage thereto or loss or deterioration thereof.
6.2.7When a vehicle has been loaded
6.2.7.1 (where applicable) seal the doors of such vehicle with numbered seals of a type approved by the carrier and supplied by the customer, and shall ensure that the serial numbers of such seals are recorded on the carrier's delivery documents;
6.2.7.2 (where applicable) set the device controlling the temperature inside such vehicle to that particular temperature required by the customer, and shall ensure that that temperature is recorded on the carrier's delivery documents;
6.2.7.3 ensure that any securing and protecting equipment applied to the goods and/or containers upon such vehicle are properly and securely positioned and affixed so as to prevent loss of or damage to such goods and /or containers during conveyance;
6.2.7.4 Verify the correctness of all details contained in the carrier's delivery documents by signing same;
6.2.8prior to off-loading the goods and/or container from a vehicle, check the seals referred to in clauses 6.2.5 and 6.2.7.1, and shall ensure that the goods and/or containers to be off-loaded are the precise goods and/or containers which are contracted to be off-loaded;
6.2.9during off-loading of the goods and/or containers from a vehicle, ensure that clear and precise off-loading and delivery instructions are given, and that such goods and/or containers are off-loaded at the correct off-loading point and onto/into the correct place or receptacle (as the case may be);
6.2.10 when the goods and/or containers have been off-loaded from a vehicle, ensure that they comprise the correct quantity and are in good order and condition and (where applicable) are at the correct temperature, shall inspect the interior of such vehicle to ensure that the complete consignment has been offloaded, and shall immediately notify the carrier (to be confirmed immediately by e-mail or otherwise in writing) if any of the goods and/or containers appear to be missing, damaged or contaminated, for the purpose of enabling the carrier to forthwith conduct on-site and other investigations considered appropriate by the carrier.
6.3Should it not be possible or practicable (for any reason whatsoever other than the fault of the carrier) to commence offloading of the goods and/or containers from a vehicle within 1 hour after its arrival at a destination where such goods and/or containers are to be off-loaded therefrom, then the carrier shall attempt to communicate that fact to the customer and shall attempt to agree alternative off-loading arrangements with the customer. Should, within a further period of 1 (one) hour, the carrier not be able to so communicate with the customer, or no alternative off-loading arrangements acceptable to the carrier be so agreed with the customer, then the carrier shall be entitled to payment of the fee in respect thereof as if off-loading of such goods and/or containers had actually taken place, and to store same (whether in or on a vehicle or otherwise).
6.4The onus of proving
6.5.1The quantity, type, physical properties, chemical properties and composition, and condition of the goods; and
6.5.2the condition of any container and/or the existence, quantity, type, physical properties, chemical properties and composition, and condition of anything alleged to be contained inside any container, at the time of receipt thereof by the carrier shall at all times remain on 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.
7Demurrage
The carrier shall be liable for demurrage or storage charges only when mutually agreed upon and vice versa.
8Hazardous goods (Carrier will handle upon agreement)
8.1The carrier shall not be obliged to convey or handle hazardous goods and/or anything likely to cause any damage whatsoever to persons or properly, including a vehicle or container.
8.2Should the carrier nevertheless agree to convey or handle the goods of the type described in clause 8.1, then the customer or consignor shall prior to loading thereof fully disclose the nature and properties of such goods to the carrier, give the carrier specific detailed instructions to enable the carrier to safely convey and/or handle such goods, and shall comply with all laws and regulations governing the conveyance and handling of such goods.
8.3Should any of the goods become a danger to persons or properly (whether or not the provisions of clause 8.2 have been complied with), then the carrier shall be entitled to immediately dispose of all or any of such goods any manner which it may deem fit without notice to the customer and, if the customer or the consignor shall have failed to comply with the provisions of clause 8.2, shall be entitled to payment of the fee for the conveyance thereof as if such goods had been duly delivered to their destination, any costs incurred by the carrier in so disposing of such goods, and the amount of any other loss or damage suffered by the carrier resulting directly or indirectly from such failure.
9Breach
9.1Should any amount payable by the customer not be paid on the due date for payment thereof or should the customer otherwise breach or fail to comply with any term or condition of the contract, or should the customer be placed under judicial management or be sequestrated or be liquidated (whether provisionally or finally or whether voluntarily or compulsorily), or being a partnership, be dissolved, or commit any act of insolvency under the Insolvency Act, 1936 (as amended), or die, then the carrier shall, without prejudice to any claims of the carrier then accrued under such contract and to any other rights or remedies which the carrier may have in terms of such contract or otherwise in law, be entitled, within the carrier's absolute discretion
9.1.1to suspend performance of the carrier's obligations in terms of such contract until such breach is rectified and/or payment of all fees payable thereunder is secured to the satisfaction of the carrier; and/or
9.1.2To cancel such contract to the extent that the carrier has not performed its obligations there under and to retain all monies previously paid by the customer; and /or
9.1.3 to sue for specific performance by the customer of all or any of the obligations imposed upon the customer in terms hereof, and in particular the carrier may sue for the payment of all or any such amount which maybe due and owing to it in terms of this agreement.
9.2The customer shall not be entitled to cancel a contract by virtue of breach thereof by the carrier unless such breach is of a material term thereof, and the carrier has failed to rectify such breach within 14 (fourteen) days after receiving written notice from the customer requiring it to do so.