Terms & Conditions

Terms & Conditions

 

Bigmall Messenger- Terms and Conditions Policy

Disclaimer

By using our ecommerce website and apps, you agree to our terms of use set out below. You must read them carefully before deciding to register for the Services. By signing the registration form attached to these Conditions of Use, you agree that we should register you as a user and that you have received, read, fully understood and accept these Conditions of Use. Please note that these Conditions of Use together with your registration form constitute a binding agreement between you and us. If you do not accept these Conditions of Use, You must not proceed to register for and/or use the Services.

The following terminology applies to these Terms and Conditions, Privacy Policy and Disclaimer Notice and any or all Agreements: "Client", “User”, “Account Holder”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s Terms and Conditions. "The Company", “Ourselves”, “We”,"Us", “Bigmall”, “Bigmall” refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. “Website” or “Our Website” refers to the Bigmall website in its entirety with URL of home page – www.bigmall.co.za. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing South African. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to same.

The Terms and Conditions as stipulated below, shall be governed by and construed in accordance with the laws of South Africa.

1. General Agreement

This Agreement is between Bigmall (Pty) Ltd trading and the Client named hereafter. Bigmall agrees to provide and the Client agrees to accept through Bigmall, services according to the following terms and conditions:

These Terms & Conditions constitute a legal agreement between the Client and Bigmall. The use of our website and/or products/services is subject to the following Terms and Conditions, also referred to as “Terms of Service” and “Terms”. If you access and use this website or its products/services, you accept and agree to be bound by and comply with the Terms and Privacy Policy. If you do not accept these Terms in their entirety, you may not access our website or use the products/services provided by Bigmall. Bigmall reserves the right to suspend or cancel any Client's access to any or all products/services provided by Bigmall should we decide that the account has been inappropriately used or otherwise. We reserve the right to change this agreement at any time without notice.

1.1 Country of Domicile

This website is governed by the laws of South Africa and Bigmall chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature:

2. Detailed Description of Products and/or Services

Technology

BigMall (www.bigmall.co.za) is a technology based business that provides Clients with a complete Software as a Service (SaaS) ecommerce solution (including site builder, ecommerce backend platform, hosting) and related products/services. Core features include: set up of complete ecommerce store (includes frontend website and backed ecommerce platform), domain registration, email set up and hosting. Note: the terms “Software as a Service (Saas)”, “Software”, “Product(s)”, “Products/Services” are used interchangeably throughout this Agreement and hold the same meaning within context of this Agreement or any other Bigmall documentation.

All purchases through our website are subject to product availability. We may, in our sole discretion, limit or cancel the quantities offered on our website or limit the sales of our products or services to any person, household, geographic region or jurisdiction. Prices for our products are subject to change, with prior notice in accordance with the South African Consumer Protection Act (No. 68 of 2008). Unless otherwise indicated, prices displayed on our website are quoted in South African Rands (ZAR). We reserve the right, in our sole discretion, to refuse orders, including without limitation, orders that appear to be placed by distributors or resellers.

If we believe that you have made a false or fraudulent order, we will be entitled to cancel the order and inform the relevant authorities. We do not guarantee the accuracy of the colour or design of the products on our website. We have made efforts to ensure that the colour and design of our products are displayed as accurately as possible on our website.

3. Use of Website and Products/Services

3.1 General Use and Access

You agree to use our website for legitimate purposes and not for any illegal or unauthorized purpose, including without limitation, in violation of any intellectual property or privacy law. By agreeing to the Terms, you represent and warrant that you are at least the age of majority in your state or province of residence and are legally capable of entering into a binding contract. You agree to not use our website to conduct any activity that would constitute a civil or criminal offence or violate any law. You agree not to attempt to interfere with our website’s network or security features or to gain unauthorized access to our systems. You agree to provide us with accurate personal information, such as your email address, mailing address and other contact details in order to complete your order or contact you as needed. You agree to promptly update your account and information. You authorize us to collect and use this information to contact you in accordance with our Privacy Policy.

BigMall accounts are to be used by the primary owner only, account holders are not permitted to resell, store or give away the services of their account to other parties even if it was for free or non-profitable.

3.2 Website Content

We reserve the right to make any modifications to the website, including terminating, changing, suspending or discontinuing any aspect of the website at any time, without notice. We may impose additional rules or limits on the use of our website. You agree to review the Terms regularly and your continued access or use of our website will mean that you agree to any new changes. You agree that we will not be liable to you or any third party for any modification, suspension or discontinuance of our website or for any service, content, feature or product offered through our website.

3.3 Links to Third-Party Websites

Links from or to websites outside our website are meant for convenience only. We do not review, endorse, approve or control, and are not responsible for any sites linked from or to our website, the content of those sites, the third parties named therein, or their products and services. Linking to any other site is at your sole risk and we will not be responsible or liable for any damages in connection with linking/redirecting you, the end-user, to other websites. Links to downloadable software sites are for convenience only and we are not responsible or liable for any difficulties or consequences associated with downloading the software. Use of any downloaded software is governed by the terms of the license agreement, if any, which accompanies or is provided with the software.

3.4 Client Accounts

You are responsible for conforming to all federal, state, and local laws regarding the Internet and electronic communication. You must respect the intellectual property and copyrights of resources provided by others on the net. You may not participate in any illegal activities while using your account. You must obey the laws of the Republic of South Africa and other countries that you communicate with over the Internet. We cannot and do not monitor or control traffic content to/from our service. You are responsible for keeping your activities legal, and for censoring yourself and colleagues. Subscribers (account holders) are not permitted to post any material that is illegal, libellous, tortuous, or likely to result in retaliation against BigMall. Should the posted material fall into this category (but not limited to), we reserve the right to immediately refuse or terminate your account. BigMall does not allow any of the following contents to be stored on any of its servers:

- Illegal Material: This includes copyrighted works, commercial audio, video, or music files and any material in violation of any Federal, State or Local regulation.

- Adult Material: Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of BigMall.

- Warez: Includes pirated software, ROMS, emulators, freaking, hacking, password cracking, IP spoofing, etc., and encrypting of any of the above. Also includes any sites which provide "links to" or "how to" information about such material.

BigMall will terminate any account that contains any of the above mentioned contents without any warning and without refunding any payments.

3.5 Online Store/Website Non-Transferable

BigMall does not permit exporting of website/online stores created by the Client (using BigMall’s site builder tools), to an external destination or host. All online stores/websites are solely hosted on BigMall’s servers.

3.6 Internet Etiquette

Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. BigMall is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network that BigMall or its customers may utilize.

Use of email address distribution lists via unsolicited electronic mail or other electronic mailings is strictly prohibited. This includes but not limited to: mass-newsgroup postings, SPAM and unsolicited e-mail sent from your email address (with a domain name registered by BigMall or has been transferred to BigMall), or any other service on the Internet, which contains your domain name. BigMall reserves the right to deactivate the Client's account(s) upon an indication of such activity. The Client hereby agrees to indemnify and hold harmless BigMall from any claim resulting from the Client's or another party's use of electronic mail service(s) on the Client's account(s).

3.7 Website Content Backup Storage

BigMall will in no way whatsoever be held liable to anyone for damages or losses of any kind to data stored on the BigMall servers. BigMall will periodically plan to backup data of its servers but is under no obligations whatsoever to do so under these Terms.

3.8 Restrictions and Responsibilities

The Client will not, directly or indirectly:

a)            reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the BigMall Saas (Software as a Service) or any software, documentation or data related to the BigMall product/services (“Software”); modify, translate, or create derivative works based on the BigMall product/service or any Software (except to the extent expressly permitted by BigMall or authorized within the BigMall product/service);

 

b)            use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to the Client for use on the Client’s premises or devices, BigMall hereby grants the Client a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

4. Account Ownership

The party or person who signs up for a BigMall Account and proceeds to build their online store will become the designated account holder. Only this person is allowed to make changes to the online stores, contact information, upgrade the current service or request a cancellation. Should a dispute transpire between a number of parties claiming to have ownership of the same account, then BigMall will not hold any responsibility whatsoever to resolve these disputes.

5. Privacy Policy

Please see BigMall Privacy Policy. BigMall shall take all reasonable steps to protect the personal information of Users. For the purpose of this clause, "personal information" shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA). The PAIA may be downloaded from: http://www.polity.org.za/html/govdocs/legislation/2000/act2.pdf

6. Payment Policy

6.1 Monthly/ Annual Payment

BigMall reserves the right to change prices of accounts or services with prior notice and in accordance with the South African Consumer Protection Act (No. 68 of 2008). VAT is not charged on any of BigMall’s products/services.

Upon purchasing a BigMall product, the Client agrees to pay any monthly or annual fees for this product/service until the Client formally agrees to terminate the service - see 8. Termination of Account. Payments are to be made to BigMall's bank account on the due date specified on the Client invoice. Payment can be done via EFT, Debit Order or Credit Card.

6.2 Late or Non Payment

6.2.1 BigMall Plus Paid Package

An invoice is sent to the Client periodically informing the Client when payment is due. Should payment not be received by the due date, then BigMall will send out a first reminder to the Client with an attached account invoice (this will usually happen two days after the due date). If payment is still not received, then BigMall will send a second reminder with an attached invoice (this will usually happen 4 days after the due date). Should payment still not be received by the Client after the 5th day that the account has been overdue, then BigMall will automatically suspend the Client’s BigMall account and email services.

Whilst the Client’s account is suspended he/she will not be able to access the backend ecommerce system and the public will not be able to view/access his/her online store. The Client will still remain on the billing list for one month (i.e. 45 day grace period) from date of suspension, giving the Client an opportunity to make payment and have the website/email service re-instated as per usual without any penalty charges. Should the Client still not settle the account within this 45 day grace period, then the Client’s account will be terminated and all his/her data permanently deleted – this includes: website content, product information, order information etc.

Any failure by the Client to pay any fees due under these Terms and Conditions on the date specified shall be deemed to be a "material breach" of these Terms and Conditions. BigMall reserves the right to suspend other products/services that the Client may have until the outstanding debt is cleared. BigMall will not be held responsible for suspension/termination of a Client’s account should the Client claim that he/she did not receive any of the aforementioned reminders in due time due to a technical glitch on either party’s side or for any other reasons.

The Client is responsible for all money owed on the account from the time the account was established to the time that the Client sends a cancellation request – see section 8. Termination of Account.

6.3 Domain Registration

Your domain name will only be registered once your first payment has been received by BigMall. If you have selected to use the BigMall Free, then your selected domain will only be registered once you have upgraded to the BigMall Plus Paid Package and made first payment. This means that until your domain name has been registered by BigMall, it will be available for other persons/companies to register the domain themselves and take ownership of it.

NB: BigMall will not be liable in anyway whatsoever for Clients’ whose desired domain name (which was once available upon signup with BigMall) has now become unavailable as another entity had registered and paid for the domain name before BigMall received payment from the Client for first invoice.

6.4 Online Payments

All online credit card payments that are accepted for BigMall’s SaaS are processed by Payfast Payment Gateway.

7. User Comments, Feedback, and Other Submissions

a) You acknowledge that you are responsible for the information, profiles, opinions, messages, comments and any other content (collectively, the “Content”) that you post, distribute or share on or through our website or services available in connection with our website. You further acknowledge that you have full responsibility for the Content, including but limited to, with respect to its legality, and its trademark, copyright and other intellectual property ownership. You agree that any Content submitted by you in response to a request by us for a specific submission may be edited, adapted, modified, recreated, published, or distributed by us. You further agree that we are under no obligation to maintain any Content in confidence, to pay compensation for any Content or to respond to any Content.

b) You agree that you will not post, distribute or share any Content on our website that is protected by copyright, trademark, patent or any other proprietary right without the express consent of the owner of such proprietary right. You further agree that your Content will not be unlawful, abusive or obscene nor will it contain any malware or computer virus that could affect our website’s operations. You will be solely liable for any Content that you create and its accuracy. We have no responsibility and assume no liability for any Content posted by you or any third-party. We reserve the right to terminate your ability to post on our website and to remove and/or delete any Content that we deem objectionable. You consent to such removal and/or deletion and waive any claim against us for the removal and/or deletion of your Content.

8. Termination of Account

Note: The terms “cancellation” and “termination” are used interchangeably and hold the same meaning throughout this document.

a) The Client may terminate or cancel his/her BigMall account at any time. The Client will have to give BigMall formal notice of termination via email to avoid being billed for the following month of service.

b) If the Client cancels the account whilst there is no outstanding amount then the Client will not be liable for any outstanding payments. It is recommended that the Client cancel his/her account before the next periodic invoice is generated. The Client will be held liable for any payment due (i.e. unpaid invoices) at the time of cancellation

c) After cancellation has been performed, the Client’s data will be permanently deleted off of BigMall’s servers. No backups will be stored for any Client account that has been cancelled and subsequently deleted. BigMall will cease providing the product/service after the account cancellation has been processed.

d) Upon cancellation of account, you will not be entitled to any refunds of product/service fees or any other fees, pro rata or otherwise. Any outstanding balance due for product/services used prior to cancellation will immediately become due and payable in full by the Client.

e) BigMall reserves the right to remove any content or suspend or terminate a Client's service if it deems this necessary due to an infringement of these Terms and Conditions of Service.

9. Term and Compensation

The parties agree to a monthly or annual billing cycle, beginning after BigMall’s receipt of payment of the initial monthly/annual invoice.

10. Disclaimer of Warranty

a) BigMall’s service is provided on an “as is, as available” basis. Due to BigMall’s relationship with online networks, BigMall gives no warranty, expressed or implied, for the service provided, including without limitation, warranty of the merchantability and warranty of the fitness for a particular purpose. This disclaimer of warranty expressly disclaims any right to reimbursement for direct or consequential losses of income, due to disruption of the service by BigMall or beyond the fees paid by the Client to BigMall for products/services.

b) The Client expressly agrees that use of BigMall’s products/services is at the Client's sole risk. BigMall, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, indicate that BigMall’ Software as a Service (SaaS) may be interrupted and is not likely to be error free. BigMall makes no warranty as to the results that may be obtained from the use of the SaaS or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the service, unless otherwise expressly stated in this Agreement.

c) Under no circumstances, including negligence, shall BigMall, its offices, agents or anyone else involved in creating, producing or distributing BigMall service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the BigMall services; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to BigMall records, programs or services. The Client hereby acknowledges that this paragraph shall apply to all content on BigMall products/services.

d) Use of any information obtained by way of BigMall is at the Client's own risk and BigMall specifically denies any responsibility for the accuracy (or inaccuracy) or quality of information obtained through its services.

e) BigMall disclaims liability for any damages arising from the Client's use of BigMall or by the Client's server(s). BigMall disclaims liability for the Client's data, files, or directories residing on BigMall equipment or its BigMall equipment.

f) Notwithstanding the above, the Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate Rand amount which the Client paid during the term of this Agreement.

g) Email - It is the responsibility of the Subscriber to make sure that mail spooled on BigMall servers are retrieved at least once a week, as the Mail Spool File gets cleared at regular intervals. BigMall will not be held responsible for any mail lost due to non-retrieval.

11. Use of Template Policies Provided by BigMall

The sample policy documents provided via the BigMall Admin Panel- >Settings->Store Settings, include a) Terms & Conditions Policy; b) Privacy Policy; c) Return Policy; d) Shipping Policy. It is important to note that these documents have been provided by BigMall for general information purposes only. Your use/partial use of any of these sample documents is entirely at your own risk and you should not use any of these sample documents or parts thereof without first seeking legal and other professional advice.

The provision of these sample documents (and the documents themselves) do not constitute

legal advice or opinions of any kind, or any advertising or solicitation. No lawyer-client,

advisory, fiduciary or other relationship is created between BigMall and any person accessing or otherwise using any of the sample documents.

12. Errors and Omissions

Please note that our website may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time, without prior notice (including after an order has been submitted). Such errors, inaccuracies or omissions may relate to product description, pricing, promotion and availability and we reserve the right to cancel or refuse any order placed based on incorrect pricing or availability information, to the extent permitted by applicable law. We do not undertake to update, modify or clarify information on our website, except as required by law.

13. Trademarks and Copyrights

a) The Client warrants that it has the right to use the applicable trademarks of the Client, and grants to BigMall the rights to use such trademarks, if any, in connection with BigMall’s motion of, referencing of, cataloguing of, or indexing of BigMall’s Clients.

b) The Client herby agrees that any material submitted for publication on BigMall through the Client’s account/website/online store will not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything harmful. The Client will hold BigMall harmless and indemnify BigMall from any damages, fines or costs including attorney’s fees which might arise from any such violation or infringement.

c) You may not use BigMall, BigMall Plus, BigMall Online, or any other BigMall trademark, including BigMall-owned logos, graphic symbols, icons, website content, phrases, in a manner that would imply BigMall’s affiliation with or endorsement, sponsorship, or support of you or of a third party product or service.

14. Capacity

The Client certifies that he or she has full right and authority to enter into this agreement to bind the Client hereto.

15. Disclaimer and Limitation of Liability

a) The Client hereby agrees that any material submitted for publication on BigMall through the Client’s account will not contain anything leading to abusive or unethical use of BigMall service or products. This includes, but is not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, any harassing and harmful material or uses, any illegal activity, or material advocating illegal activity and infringement of privacy or libel.

b) You assume all responsibility and risk with respect to your use of our website, which is provided “as is” without warranties, representations or conditions of any kind, either express or implied, with regard to information accessed from or via our website, including without limitation, all content and materials, and functions and services provided on our website, all of which are provided without warranty of any kind, including but not limited to warranties concerning the availability, accuracy, completeness or usefulness of content or information, uninterrupted access, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose.

c) We do not warrant that our website or its functioning or the content and material of the services made available thereby will be timely, secure, uninterrupted or error-free, that defects will be corrected, or that our websites or the servers that make our website available are free of viruses or other harmful components. The use of our website is at your sole risk and you assume full responsibility for any costs associated with your use of our website. We will not be liable for any damages of any kind related to the use of our website. In no event will we, or our affiliates, our or their respective content or service providers, or any of our or their respective directors, officers, agents, contractors, suppliers or employees be liable to you for any direct, indirect, special, incidental, consequential, exemplary or punitive damages, losses or causes of action, or lost revenue, lost profits, lost business or sales, or any other type of damage, whether based in contract or tort (including negligence), strict liability or otherwise, arising from your use of, or the inability to use, or the performance of, our website or the content or material or functionality through our website, even if we are advised of the possibility of such damages.

Certain jurisdictions do not allow limitation of liability or the exclusion or limitation of certain damages. In such jurisdictions, some or all of the above disclaimers, exclusions, or limitations, may not apply to you and our liability will be limited to the maximum extent permitted by law.

16. Indemnification

a) The Client agrees that it shall defend, indemnify, save and hold BigMall harmless from any and all demands, liabilities, losses, costs and claims, including attorneys' fees, asserted against BigMall, agents, its Clients, servants, officers and employees, that may arise or result from publication or use of the Client's account/website/online store (and associated materials), any service provided or performed or agreed to be performed or any product sold by the Client (using BigMall’s Saas), its agents, employees or assigns. The Client agrees to defend, indemnify and hold harmless BigMall against Liabilities arising out of (i) any injury to person or property caused by any products or services sold or otherwise distributed in connection with BigMall service; (ii) any material supplied by the Client infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which the Client sold.

b) The Client agrees to defend and indemnify us, and hold us and our affiliates harmless, and our and their respective directors, officers, agents, contractors, and employees against any losses, liabilities, claims, expenses (including legal fees) in any way arising from, related to or in connection with your use of our website, your violation of the Terms, or the posting or transmission of any materials on or through the website by you, including but not limited to, any third party claim that any information or materials provided by you infringe upon any third party proprietary rights.

17. Bandwidth Use Policy

In rare cases, BigMall may find a customer to be using server resources to such an extent that he or she may jeopardize BigMall server performance and resources for other Clients. In such instances, BigMall reserves the right to impose the High Resource User Policy for the consideration of all Clients.

18. High Resource User Policy

a) Resources are defined as bandwidth and / or processor utilisation.

b) BigMall may implement the following policy at its sole discretion.

c) When a website is found to be monopolising the resources available, BigMall reserves the right to suspend the Client’s site immediately or renegotiate the current hosting package in accordance with the use. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of the BigMall servers.

19. Waiver

Our failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. A waiver by us of any default will not constitute a waiver of any subsequent default. No waiver by us is effective unless it is communicated to you in writing.

20. Headings

Any headings and titles herein are for convenience only.

21. Severability

If any of the provisions of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable, such provision will to that extent be severed from the remaining Terms, which will continue to be valid and enforceable to the fullest extent permitted by law.

22. Entire Understanding

This Agreement contained in this Contract constitutes the sole agreement between BigMall and the Client regarding BigMall’s product/service. It is construed in accordance with the laws of South Africa. Any litigation or lawsuits incidental to this Agreement shall be filed and be determined in South Africa unless otherwise agreed to in writing by BigMall. The Client will use the services in a manner consistent with any and all applicable laws of South Africa. Signing up for an account binds the Clients to the above contract.

The Terms and any documents expressly referred to in them represent the entire agreement between you and us in relation to the subject matter of the Terms and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing. Both you and we acknowledge that, in entering into these Terms, neither you nor we have relied on any representation, undertaking or promise given by the other or implied from anything said or written between you and us prior to such Terms, except as expressly stated in the Terms.

23. Governing Law

Any disputes arising out of or relating to the Terms, the Privacy Policy, use of our website, or our products or services offered on our website will be resolved in accordance with the laws of the Province of Gauteng, South Africa without regard to its conflict of law rules. Any disputes, actions or proceedings relating to the Terms or your access to or use of our website must be brought before the courts of the Province of Gauteng in the City of Johannesburg, Gauteng and you irrevocably consent to the exclusive jurisdiction and venue of such courts.

24. Questions or Concerns

Please send all questions, comments and feedback to us at info@bigmall.co.za

Terms and Conditions Of Carriage

1. DEFINITIONS

In these conditions, the following words and or terms shall bear the meaning ascribed to them:

1.1 “Contractor” shall mean; - KayHil Freight cc and includes the contractor’s servants and agents, and any persons carrying goods forming the subject matter of any contract entered into by any party with the contractor;

1.2 “Consignor” shall mean; - The owner of the consignment of goods or the person having lawful title to the consignment or goods or possession thereof and the duly authorized agent of the consignor;

1.3 “Consignment” shall mean; - The goods forming the subject matter of the agreement whether contained in one or more parcels, containers or bulk and whether consigned singularly, separately or in bulk;

1.4 ”Consignee” shall mean: - The person to whom or in the event of no name being given by the consignor, the address at which the goods are to be delivered. In the absence of the person named by the consignor as the consignee, then any person representing himself to be duly authorized to accept delivery on behalf of the consignee and having the appearance of being authorized by the consignor or the consignee to accept delivery on behalf of the Consignee

2. NO VARIATION OF CONDITIONS

It is hereby agreed that the contractor will not be a public carrier in relation to the carriage of goods forming the subject matter of this agreement, and that the consignment or any goods to be carried are subject to the conditions contained herein. This agreement is the only agreement between the parties and no variations of this agreement will be of any force or affect whatsoever unless reduced to writing and signed by the parties. The conditions of carriage are available on request and which the consignor and / or consignee are invited to read.

3. NO AUTHORITY OF AGENT TO VARY CONDITIONS

No agent or person employed by the contractor will have any authority to vary, in any way, these conditions, unless he is expressly authorized in writing to do so by the contractor.

4.

CONTRACTOR’S LIABILITY FOR DAMAGE TO, OR LOSS OF, CONTENTS OF AND OTHER LOSS OR DAMAGE

4.1 Neither the contractor nor any of its servants will be liable for any loss or damage to the consignor, howsoever caused, arising out of any carriage or related transport work;

4.2 All carriage and related transport work carried out in terms of this agreement, including but not limited to the off –loading, loading, packaging, storage and /or safekeeping of any and all consignments, is done at the exclusive and sole risk of the consignor or consignee, as the case may be;

4.3 The contractor shall not be responsible for any loss and / or damages, including consequential damages, which the consignor may suffer as a result of the performance of services by the contractor in terms of this contract. In particular, it is agreed that the contractor accepts no liability for any damages, which the owner may suffer, even if such damages are caused intentionally or grossly negligently;

4.4 It is the sole and absolute responsibility of the consignor to obtain insurance cover for all damages whether foreseeable or unforeseeable, which the consignor may suffer as a result of any occurrence and / or conduct on behalf of the contractor, its agents or and person whatsoever.

5. SPECIAL LIMITATION OF CARRIER’S LIABILITY

Subject to the terms and conditions of this agreement, the contractor will not be liable for: -

5.1 The loss of a particular market;

5.2 Indirect, direct or consequential damages;

5.3 Loss or damage arising out of riots, civil commotion, strikes, block outs or stoppage of work from whatever cause, which partial or general.

6. QUOTATIONS

6.1 Quotations furnished to any party to this agreement will be valid for a period of (30) thirty days from the date appearing on such quotation unless otherwise agreed in writing;

6.2 Notwithstanding that a quotation may have been accepted by any party to this agreement, the quotation is subject to and conditional upon the contractor having a suitable vehicle available during that period or at any other time. In the event of the contractor being unable to fulfill the agreement as a result of not having a suitable vehicle available, no party shall have any claim whatsoever against the contractor as a result thereof;

6.3 In the event of the contractor being obliged to take out or obtain any licenses or permits, which comply with the requirements of any lawful authority, the contractor will be entitled to make an additional charge to cover any expense resulting there from not already included in the quotation. The carriage of any consignment is subject to the granting of the necessary permission and any licenses by any such competent authority;

6.4 The contractor will furthermore be entitled to increase the agreed remuneration fixed by the quotation in the event of the consignor increasing the quantity of the goods in proportion to such increase;

6.5 In the event of the contractor being obliged to deviate from the route selected by it, or to carry the consignment of goods over another route, as a result of adverse weather conditions, impassable or dangerous roads, bridges, pontoons and ferries, the contractor will be entitled to charge an additional remuneration in proportion resulting extra distance traveled.

6.6 The contractor reserves the right to open and inspect any consignment for any reason at any time, and to charge according to the higher of actual or volumetric weight.

7. DANGEROUS GOODS

7.1 The contractor will be under no obligation to accept dangerous goods for carriage and in the event of the consignor wishing the contractor to do so, he will make full disclosure to the carrier of the nature and properties of such goods and, in the event of such goods being accepted for carriage by the contractor, the consignor will ensure that such goods are properly and securely packed and otherwise dealt with in accordance with any laws or regulations enforce at the time;

7.2 In the event of the consignor failing to disclose the dangerous nature of the goods, or in the event of the goods becoming a danger to the persons or property of others, including the servants or property of the contractor, whether the dangerous nature thereof has been disclosed or not, the contractor will be entitled immediately, and without notice to the consignor or consignee to discharge or dispose of any such goods and the contractor will not be liable for any loss or damage arising from such discharge or disposal whatsoever. The contractor will further be entitled to recover from the consignor his contractual remuneration in respect of any such carriage, notwithstanding the non-delivery of such goods, together with any expenses incurred in discharging or disposal thereof.

8. INDEMNITY TO CONTRACTOR IN RESPECT OF DANGEROUS GOODS

The consignor hereby indemnifies the contractor against all loss, damage or injury to any persons or property, however caused, arising out of carriage of any dangerous goods.

9. POSTPONEMENT

Any postponement or cancellation by the consignor of the contract shall entitle the contractor to make a charge to cover the expense or loss of the contractor arising there from which assessment shall be within the sole and absolute discretion of the contractor.

10. COLLECTIONS, STORAGE AND DELIVERY

10.1 The contractor will deliver the goods to the consignee, who will take delivery thereof;

10.2 Any consignments left upon the contractor’s vehicle for any reason to suit the convenience of the consignor/consignee are held at the sole risk of the consignor/consignee, as the case may be, and the contractor may raise reasonable storage charges.

11. DEMURRAGE

11.1 The contractor does not accept any liability for demurrage incurred, any such charges, shall be for the consignors account, and if paid by the contractor, shall be repaid by the consignor forthwith, including, at the discretion of the contractor, a disbursement fee on demand.

11.2 Demurrage will be payable by the customer at the discretion of the contractor and all the contractor’s vehicles delayed beyond working hours, whether during loading or off-loading from whatsoever cause arising when demurrage charge shall be levied by the contractor, which shall be final and binding for each vehicle so delayed per day or part thereof.

12.PRESCRIPTION OF CLAIMS AGAINST CONTRACTOR

Written notice of any claim by the consignor against the contractor must be given to the contractor in writing delivered not later than (3) three days after the alleged loss or damages or non delivery failing which notices, no claims shall be enforceable against the contractor nor shall such claim or other dispute be capable of off-set or otherwise constitute a defense to any claim by the contractor against the consignor. Should no written notice be received, any claim will ipso facto lapse and become unenforceable.

13. SUBCONTRACTORS The contractor will at all times have the power and authority to employ any other contractor on the consignor’s behalf and at the consignor’s expense in order to ensure the carriage of the said consignment to the address of the consignee, whether such carriage be effected by any means. In the exercise of such power the contractor will be entitled to agree to, and to accept on the consignor’s behalf, any conditions of carriage imposed by any other contractor, and the consignor will be deemed to have had knowledge of, and to have accepted, any such conditions of carriage, provided that the contractor’s liability as defined herein, will in no way be extended by such conditions of carriage.

14. PAYMENT OF CARRIER’S RENUMERATION

14.1 Unless otherwise specifically agreed between the parties, the contractor’s remuneration will be payable within (30) thirty days of the invoice date reflecting charges for the goods carried. If any such charges are not paid when due and payable, or if any other debt of liability due by the consignor to the contractor is not paid in full or due date, the contractor shall be entitled in addition to and without derogating from its right of lien over the goods transported under this contract, to detain the whole or any part or all of the consignor’s possessions, until due payment is made of all and any indebtedness with in terms of this clause. The contractor will furthermore be entitled to charge the consignor storage charges in respect of any period during which the goods are stored after tender of delivery up to and including the time of payment of all monies owing to the contractor by the consignor.

14.2 In the event of non-payment in terms of Clause 14.1 of any indebtedness on due date therefore, the consignor acknowledges that the contractor is entitled to charge and receive interest on the outstanding balance from date of rendering of the carriage services at the ratio of 2.5% per month or part thereof.

15. CONTRACTOR’S LIEN

The contractor will have a lien over all goods carried and in the event of non-payment of all monies due by the consignor to the contractor within a period of (120) one hundred and twenty days from the date when the amounts become due and payable, the contractor will have the right, without further notice to the consignor, to open and examine any part of such goods, and, at his option to sell auction or by private treaty, and to apply the proceeds of any such sale after deduction of all expenses thereof, in payment of or towards any sum due by the consignor to the contractor. In such an event, the contractor will be released from any and all liability whatsoever in respect of the goods.

16. CLAIM OR DISPUTE NOT TO DEFER PAYMENT

A claim or dispute shall not be made the reason for deferring payment of any monies payable to or liability incurred by the contractors or to the agents or other contractors acting on their behalf, and these conditions shall mutates mutants apply to the consignor.

17. WARRANTIES

17.1 Should the consignor not be the owner of any goods comprising the consignment, the consignor warrants that it is authorized by owners of such goods to enter into an agreement on their behalf;

17.2 The consignor warrants the accuracy in respect of all information supplied to the contractor relating to the nature, dimensions and weights of the goods, the addresses at which the goods are to be collected and delivered and matters relating to the points of collection and delivery relating to the existence, dimensions and weight bearing capacities of roadways, manhole covers drainpipes, bridges and overhead obstructions such as trees and cables. Should the contractor be held liable in respect of the breach of any of the aforementioned on the part of the consignor, the consignor hereby agrees and undertakes to reimburse upon demand, and such amounts paid by the contractor be it in respect of fines by the Local Authorities, or otherwise.

18. LIMITATION OF LIABILITY

The carrier will not be liable for any delay or detention of the goods carried or for any consequential loss, loss, damage or deterioration arising there from, breach of other contracts, Terms and Conditions Of Carriage

1. DEFINITIONS

In these conditions, the following words and or terms shall bear the meaning ascribed to them:

1.1          “Contractor” shall mean; - KayHil Freight cc and includes the contractor’s servants and agents, and any persons carrying goods forming the subject matter of any contract entered into by any party with the contractor;

 

1.2          “Consignor” shall mean; - The owner of the consignment of goods or the person having lawful title to the consignment or goods or possession thereof and the duly authorized agent of the consignor;

 

1.3          “Consignment” shall mean; - The goods forming the subject matter of the agreement whether contained in one or more parcels, containers or bulk and whether consigned singularly, separately or in bulk;

 

1.4          ”Consignee” shall mean: - The person to whom or in the event of no name being given by the consignor, the address at which the goods are to be delivered. In the absence of the person named by the consignor as the consignee, then any person representing himself to be duly authorized to accept delivery on behalf of the consignee and having the appearance of being authorized by the consignor or the consignee to accept delivery on behalf of the Consignee

 

2. NO VARIATION OF CONDITIONS

It is hereby agreed that the contractor will not be a public carrier in relation to the carriage of goods forming the subject matter of this agreement, and that the consignment or any goods to be carried are subject to the conditions contained herein. This agreement is the only agreement between the parties and no variations of this agreement will be of any force or affect whatsoever unless reduced to writing and signed by the parties. The conditions of carriage are available on request and which the consignor and / or consignee are invited to read.

 

3. NO AUTHORITY OF AGENT TO VARY CONDITIONS

No agent or person employed by the contractor will have any authority to vary, in any way, these conditions, unless he is expressly authorized in writing to do so by the contractor.

 

4.

CONTRACTOR’S LIABILITY FOR DAMAGE TO, OR LOSS OF, CONTENTS OF AND OTHER LOSS OR DAMAGE

4.1          Neither the contractor nor any of its servants will be liable for any loss or damage to the consignor, howsoever caused, arising out of any carriage or related transport work;

4.2          All carriage and related transport work carried out in terms of this agreement, including but not limited to the off –loading, loading, packaging, storage and /or safekeeping of any and all consignments, is done at the exclusive and sole risk of the consignor or consignee, as the case may be;

4.3          The contractor shall not be responsible for any loss and / or damages, including consequential damages, which the consignor may suffer as a result of the performance of services by the contractor in terms of this contract. In particular, it is agreed that the contractor accepts no liability for any damages, which the owner may suffer, even if such damages are caused intentionally or grossly negligently;

4.4          It is the sole and absolute responsibility of the consignor to obtain insurance cover for all damages whether foreseeable or unforeseeable, which the consignor may suffer as a result of any occurrence and / or conduct on behalf of the contractor, its agents or and per