For the purposes of the terms and conditions of this agreement unless inconsistent
with the context the following words shall carry the following meaning:
1.1. Kirvic shall mean Kirvic Trading (Pty) Ltd
1.2. The customer shall mean:
1.2.1. The person who instructed KIRVIC to perform the services reflected in terms of this contract;
1.2.2. The person who accepts KIRVIC’s quotation;
1.2.3. The person who contracts with KIRVIC.
1.3. “Contract” means the terms and conditions hereof whether agreed to in writing or orally
concluded between KIRVIC and the customer;
1.4. “Dangerous goods” includes hazardous goods and good which, in the opinion of KIRVIC are
dangerous and includes anything likely to cause any damage whatsoever to persons or property
(including vehicle of the principals);
1.5. “Freight” will mean the amount or price payable by the customer to KIRVIC as consideration for
the carriage of goods in terms of a contract;
1.6. “Goods” shall mean any goods which are transported in terms hereof
1.7. “Person” shall have its ordinary meaning and includes the words “body corporate”;
1.8. “Law” includes the common law, any statute, ordinance, by law or regulation;
1.9. “Principals” shall mean any person with whom KIRVIC contracts to carry out transportation in
terms of the contract for and on behalf of the customer;
1.10. “Transportation” shall mean, without restricting the generality of this term, loading,
unloading, off-loading, conveyance, packing (where necessary) storing, and/or safe keeping of any
goods and the acquiring of permits, authority/iss and the like;
2. CAPACITY OF BROKER
2.1. Notwithstanding anything herein contained to the contrary, KIRVIC herein contracts with the
customer in its capacity as agent and nothing herein contained is to be construed as KIRVIC acting as
principal with the customer;
2.2. Notwithstanding anything herein contained, KIRVIC shall accept liability for loss or damage to
the customer’s goods only , subject to the provisions stipulated in clause 5 hereunder;
2.3. KIRVIC shall, if and when suitably indemnified by its customer against all costs claimed, including
attorney and client costs, and security is furnished to KIRVIC’s attorney’s satisfaction, take action
against the principals on its customer’s behalf as its customer may direct’
2.4. The terms and conditions of this agreement together with any addendum thereto shall govern
the relationship between KIRVIC and the customer in each and every contract between then,
including contracts entered into subsequently to the contract formed by the customer’s acceptance
of KIRVIC’s quotation and whether or not the customer’s attention has been specifically drawn to
these conditions as being applicable to the contract governing their relationship;
2.5. This contract shall solely govern the relationship between KIRVIC and the customer and
expressly excludes the terms and conditions of trading of the customer’s delivery notes, orders and /
or invoices and the like;
2.6. No warranty or representation other than as is herein expressly contained shall be of any force
and effect against KIRVIC unless the same is contained in writing and signed for and on behalf of
2.7. No amendment, variation or consensual cancellation of any contract shall be of any force and
unless such amendment, variation and/or consensual cancellation is reduced to writing and signed
3. WHOLE CONTRACT
No course of conduct other than agreement in writing signed by KIRVIC shall constitute a variation
or novation of a contract or a waiver or estoppel of KIRVIC’s rights there under.
KIRVIC shall be only obliged to perform provided:
4.1. KIRVIC in its sole opinion has received sufficient notice of the customer’s requirements
4.2. The customer’s notice to KIRVIC shall contain the following minimum information on the
customer’s official company letterhead;
a. Customer’s official order number.
b. Description of goods, quantity and mass
c. Release numbers of containers and/or goods
d. Address where goods are to be collected
e. Address where goods have to be delivered to
f. Value of goods for insurance purposes
g. Freight quoted or rate as agreed by the parties
4.3. The necessary consents and statutory permits have been granted and remain in force. In the
event of such consents or permits being refused or withdrawn for any reason whatsoever, such that
no carriage may be performed, the contract shall terminate and no liability shall attach to KIRVIC.
5.1. KIRVIC shall not be liable for any loss or damage unless the customer can establish that such loss or damage was caused by the gross negligence of KIRVIC
5.2. The loss to the customer shall be ascertained by reference to the cost price of the customer,
provide that KIRVIC shall have the option of replacing or repairing any article lost or damaged for which KIRVIC might be liable. In the case of secondhand goods, compensation for loss or damage
shall be limited to the valuation established by the assessors acting on behalf of KIRVIC:
5.3. KIRVIC shall not be liable for any consequential loss resulting from loss or damage to or delay in
making delivery of any goods, the liability to KIRVIC being limited to the actual loss of or damage to
goods, as set out above;
5.4. A claim (counterclaim) by the customer against KIRVIC shall not be made reason for deferring or
5.5. KIRVIC shall not be bound by receipt given in good faith to a customer relating to the number of
packages or the condition of the goods if it should subsequently be shown that such number or
conditions was wrongly described in the receipt;
5.6. Unless specifically agreed in writing, KIRVIC shall not handle articles of a hazardous or
dangerous nature and the customer shall indemnify KIRVIC against claims arising out of the presence
of any articles of a hazardous or dangerous nature;
5.7. KIRVIC will not accept any responsibility for demurrage charges however incurred on cranes,
containers, railway wagons or trucks of any description, aircraft, ships, or customers vehicles, or any
vehicle not under the direct control of KIRVIC;
5.8. KIRVIC will not be responsible for any loss or damage arising from the loading or unloading of
the vehicle, or from the overloading or unsafe loading of the vehicle. Loading and unloading / off
loading of vehicles are performed by the Customer or Consignor or their respective agents.
6. CUSTOMER’S WARRANTIES AND INDEMNITIES
The customer warrants and represents that:
6.1. The goods are the customer’s sole and exclusive property and / or that the customer has the
full and absolute authority of the person/s owning or interested in the goods to enter into a contract
6.2. The carriage of the goods as contracted for with KIRVIC does not contravene any law;
6.3. A document giving a full description of the goods to be transported will be given to KIRVIC’s
driver at or before the time of loading. It is incumbent upon the customer to see that nothing
required to be moved is left behind and to verify the correctness of all the details contained in the
customer’s delivery documents;
6.4. That any legal action arising between KIRVIC and the customer, may be instituted in the
magistrate’s court, even though the cause of the action may exceed the jurisdiction of that court.
7. PRESCRIPTION OF CLAIMS
Without limiting and without prejudicing the provisions of these conditions, the customer shall notify KIRVIC in writing of any loss, damage, complaint or claim within 12 (twelve) hours from the time of off-loading, or in the case of non-delivery of the goods within 12 (twelve) hours from the scheduled time of off-loading as the case may be. Failing which, any claim arising there from shall ipso facto lapse and be unenforceable.
8. CREDIT TERMS AND PAYMENT
8.1. Notwithstanding any notification of claim as set forth in terms of paragraph 7 above, the
customer shall pay to KIRVIC the full amount stated on KIRVIC’s invoice on due date without any
deduction or set-off and without prejudice to the customer’s rights contended for against KIRVIC in
respect of any such claim, the customer shall not be entitled to deduct or set-off any monies which it owes KIRVIC, against any monies which it contends are due to it by either KIRVIC and/or the
8.2. The customer shall pay KIRVIC in full, free of any commission, brokerage, exchange, deduction
or set-off, within 30 (thirty) days from date of KIRVIC’s statement;
8.3. The customer shall not be entitled to deduct from or set-off against such payments any claims
which the customer may have against KIRVIC, arising from any cause whatsoever;
8.4. The customer agrees to pay KIRVIC interest at a rate of 2 (two) percent per month on all
amounts which are unpaid and outstanding on the due date;
8.5. KIRVIC reserves the right to discontinue any account, and to summarily cancel any agreement in
respect of which payments have fallen in arrear, and in the event of KIRVIC exercising these rights,
all amounts owing by the customer shall immediately become due and payable on demand;
8.6. KIRVIC reserves the right to telefax to the customer, all documents pertaining to any contract
entered into with KIRVIC, and the customer shall effect payment to KIRVIC on receipt of such
telefaxed documents. Under no circumstances will the customer withhold payment to KIRVIC for
not having received “original” documents pertaining to any contract entered into with KIRVIC.
9. CONDITIONS OF GOODS
The onus of establishing the conditions of the goods at the time of delivery to KIRVIC and/or principal shall at all times remain on the customer, and no delivery note, receipt or other document given at such time by KIRVIC and/or principal to the consigner shall constitute proof of such condition, save to the extent that any specific record in relation thereto may have been made thereon by KIRVIC and/or principal.
10. LOADING AND OFF-LOADING OF VEHICLES
The customer shall deliver the goods onto the vehicle nominated by KIRVIC and shall take delivery of the goods there from , and shall be fully responsible for the loading and off-loading thereof. KIRVIC’s assistants may assist therewith where assistance is customary and practical, but such assistance shall be rendered at the sole risk of the customer without any liability for any loss or damage arising there from attaching to KIRVIC.
11. LOADING AND OFF-LOADING FACILITIES
The customer undertakes:
11.1. To provide or procure the provision of safe and adequate labour and equipment for loading
and off-loading, and safe, convenient and adequate loading and off-loading points and access to and
from such loading / off-loading points;
11.2. To ensure that loading and off-loading will be possible at the agreed points during such hours
and days as the parties have agreed
11.3. The customer warrants that if any goods require special appliances for loading upon or
unloading from the vehicle, those appliances will be available at the point of collection or the place
of delivery of the consignment.
12. LOADING AND OFF-LOADING TIME ALLOWED
The maximum time allowed to the customer to load or off-load the vehicle will be 3 (three) hours. Loading time or off-loading time shall be deemed to commence at the time when the vehicle arrives at the loading point or off-loading point as agreed by the parties.
13. LOADING AND OFF-LOADING INSTRUCTIONS
The customer shall ensure that prior to the goods being loaded or off-loaded, that the goods in question are in fact the goods which are contracted to be loaded or off-loaded, and that clear and precise loading, off-loading and delivery instructions will
be given to KIRVIC’s driver.
14. FAILURE BY THE CUSTOMER TO TAKE DELIVERY
Should the customer fail or neglect or be unable or refuse to take delivery of the whole or any part of the goods at the agreed off-loading point or at the agreed off-loading time, or should (through no fault of KIRVIC) it not be possible or practicable to off-load the goods within 12 (twelve) hours after arrival at such off-loading point and should no acceptable alternative delivery instruction be received from the customer, KIRVIC shall be entitled to store or abandon the goods at its discretion. In the event the customer shall be liable to pay any additional charges thereby incurred and shall have no claim whatsoever against KIRVIC for any act or omission arising there from.
15. CANCELLATION OF REQUEST FOR VEHICLE
The customer shall be entitled to cancel a request for a vehicle to carry out a particular service in terms of a contract, provided that the customer gives KIRVIC written notice of such cancellation not less than 12 (twelve) hours prior to the scheduled time of arrival of KIRVIC’s vehicle at the agreed point of loading failing which the customer shall be liable to pay KIRVIC’s usual, alternatively reasonable charges up to a maximum period of 48 (forty eight) hours.
16. QUOTATIONS AND QUOTATION DATA
Quotations are based inter alia on quantities, densities, dimensions, mass, properties, other technical data available loading and off-loading hours and other information supplied by the customer and are accepted by KIRVIC in good faith under representation by the customer. Any variance there from shall entitle KIRVIC to require freight quoted to be adjusted to take into account such variance, or to suspend performance, or cancel the contract, without thereby incurring any liability whatsoever and in the event of any such cancellation, reserving to itself to claim from the customer such damages as KIRVIC may have suffered.
Quotations are subject to:
16.1. All part loads being conveyed and delivered at KIRVIC and principal’s convenience:
16.2. Where the volumes, quantities or scope of work have increased over what KIRVIC have quoted
for or there be a change of route due to reasons beyond KIRVIC and/or principals control the
customer will be charged for any additions on a pro-rata basis;
16.3. Any postponement or cancellation by the customer entitles KIRVIC to debit the customer’s
account for expenses incurred and/or losses to KIRVIC arising there from;
16.4. KIRVIC shall have the right to increase the freight quoted in the event of stoppages or delays in
the carrying out of work to which the contract relates, provided that such stoppages and delays are
caused by circumstances beyond the control of KIRVIC or are such that KIRVIC could not reasonably
foresee or prevent the cause of such stoppages or delays arising.
17. FREIGHT AND ADDITIONAL CHARGES
The Freight payable to KIRVIC by the Customer for the Transportation of Goods by KIRVIC or Principal, shall be the freight agreed between KIRVIC and Customer or shall be calculated on the rate agreed between them, as the rate may be. The freight shall be subject to variation as provided for in this document. Subject to the aforegoing and In addition to the freight, KIRVIC shall be entitled to levy an additional charge at its usual rate, alternatively reasonable rate in the event of:
17.1. The customer re-routing KIRVIC’s vehicle to additional loading and/or off-loading places other
than as stated on the customer’s official order to KIRVIC as described in paragraph 4.2 above;
17.2. Fines, penalties, demurrage charges and any consequential losses, claims or expenses resulting
from the unsafe loading and/or overloading of KIRVIC’s vehicle by the customer;
17.3. The circumstances envisaged in terms of paragraphs 12; 14; 15 and 16 above.
18.1. KIRVIC may cede, delegate or assign any or all of its rights and/or obligations under a contract.
KIRVIC may sub-contract without notice, but shall continue to remain liable for the due performance
of its obligations under the contract, and these conditions shall apply equally to any service rendered
by the sub-contractor;
18.2. The parties hereby consent to the jurisdiction of the magistrate’s court in Umzinto having
jurisdiction over the customer should KIRVIC in its sole ad unfettered discretion elect to institute any
action arising out of a contract against the customer in such court, notwithstanding that KIRVIC’s
claim may exceed the ordinary jurisdiction of the court.
18.3. The customer selects as its domcilium citandi et executandi for all purposes hereunder its principal place of business as reflected on its letterheads.