ELLIOTT MOBILITY (PTY) LTD’S TERMS OF CONTRACT FOR THE TRANSPORTING, REMOVING, PACKING, WAREHOUSING, STORING AND/OR HANDLING OF PROPERTY
1. THE NATURE OF THESE TERMS
1.1. These Terms regulate the conditions under which We provide Services to Customers and sets out the contractual rights, duties, and responsibilities of the Parties under these Terms.
1.2. By accepting Our Quotation and returning a signed copy of these Terms, You acknowledge that You have properly considered and understood these Terms and agree that these Terms constitute a binding contract between the Parties.
2.1. “Consumer Protection Act” means the Consumer Protection Act 68 of 2008, as amended from time to time, including any Regulations made under the Act.
2.2. “Customer” means any person acting in their individual capacity or a legal entity, including a company, close corporation, partnership or trust, to which We provide Services. If the Customer is a legal entity, the person signing these Terms warrants that he/she has the necessary authority to sign on behalf of the legal entity and to bind it to these Terms. If the person signing these Terms lacks this authority, he/she agrees to be jointly and severally bound to these Terms as if he/she had signing these Terms in his/her personal capacity.
2.3. “Item(s)” refer to the physical articles (such as household goods, office furniture and equipment, machinery, artwork etc.) transported by Us for or on behalf of a Customer or a third-party on the instruction of a Customer.
2.4. “Move” refers to the physical transportation of Items to and from our storage facilities.
2.5. “Party” and “Parties” refers to You and Us individually or collectively as the case may be.
2.6. “POPIA” refers to the Protection of Personal Information Act 4 of 2013, as amended from time to time, including any Regulations made under the Act.
2.7. “Quotation” means the quotation provided to the Customer in respect of the Services proposed to be rendered by Us.
2.8. “Services” means any and all of the services provided by Us to a Customer and include any services for the removal, packing, warehousing, storing and/or generally handling a Customer or third-party’s Item(s).
2.9. “Terms” refers to these terms and conditions which regulate the relationship between Us and the Customer in respect of the Services rendered, as well as any further or ancillary terms contained in our Quotation provided.
2.10. “We”, “Us” or “Our/s” refers to Elliott Mobility (Pty) Ltd, a South African private company with registration no. 1991/000704/07.
2.11. “You” or “Your” refers to the Customer.
3. INSURANCE FOR YOUR ITEMS
3.1. The Customer acknowledges that Our removal, packing, warehousing, storing and/or generally handling of any Items in Our rendering of Services is undertaken solely at the Customer’s risk.
3.2. Unless specifically specified in Our Quotation, our Services do not include insurance cover. We offer Total Loss insurance cover to Our Customers, which insurance cover is not underwritten or offered by Us and is subject to the contractual terms of the relevant stipulated underwriter or insurance service provider.
3.3. You are strongly advised to insure your Items against total loss insurance during packing, moving and storage (up to 7 days) for their full replacement value at their destination. We may arrange insurance on your behalf but only on receipt of a completed insurance proposal/application form prior to Our rendering of any Services. Such insurance cover will not become effective until the completed insurance proposal/application form is in Our possession and until the relevant premium has been paid to Us.
4. CONSUMER PROTECTION ACT
4.1. It is important that the Customer understands what he/she is signing, as clauses in these Terms:
4.1.1. limit Our liability for loss or damage and confirm that the risk of damage to Items remains with the Customer at all times (Clauses 6, 7, 8, 9, 10, 13, 15 and 16);
4.1.2. create an indemnity obligation by the Customer in Our favour (Clause 10 and 13); and
4.1.3. confirm that it is the responsibility of the Customer to insure Item(s) against loss or damage (Clause 3).
4.2. We are required in terms of South African law, in particular the Consumer Protection Act (if applicable), to draw the clauses referred to in 4.1.1 to 4.1.3 above to the Customer’s attention, and these clauses have accordingly been printed in bold and it is required of the Customer to initial each page to acknowledge that the Customer has read and understood the clauses.
4.3. If the Customer is an individual acting in his/her own capacity, the provisions of the Consumer Protection Act apply to this Agreement.
4.4. If the Customer is a legal entity, the provisions of the Consumer Protection Act only apply if the asset value or annual turnover of the legal entity is less than the prescribed threshold value.
4.5. The Customer agrees that section 61 of the Consumer Protection Act relating to liability without negligence is not applicable to this Agreement under any circumstances, as the Services rendered do not include the supply of any goods.
5. OUR QUOTATION
5.1. Our Quotation is dependent on and subject to adequate resources being available on the date(s) You request Us to render Services.
5.2. We will confirm the availability of resources for the date(s) requested and/or confirm the next business day on which We can confirm availability of resources in writing, within 7 (seven) days of You accepting Our Quotation.
5.3. Our Quotation does not include insurance cover, customs duties, cargo dues and/or any other legal or governmental fees or taxes or freight related charges that may be or become payable as a result of Your use of Our Services.
5.4. Our initial Quotation may change if: –
5.4.1. You do not accept Our Quotation within 30 (thirty) calendar days of the date on which we provided Our Quotation;
5.4.2. You cause any delay in Us rendering the Services;
5.4.3. Our costs increase because of a change in tax, freight or foreign agent’s charges;
5.4.4. Our costs increase because of a change in exchange rate between the South African Rand and any relevant foreign currency;
5.4.5. there is any delay that We have no control over;
5.4.6. We pack, remove or store additional Items that were not included in Our Quotation, which will be separately invoiced at the Customer’s expense.
6. ROUTE, MODE OF TRANSPORT, PACKING AND WAREHOUSING
6.1. In rendering Services, We may choose any route for transportation, unless alternative specified arrangements have been agreed to by both Parties in writing prior to the rendering of Services.
6.2. We may choose any mode of transport and/or mode of warehousing, unless alternative specified arrangements have been agreed to by both Parties in writing prior to the rendering of Services.
6.3. We may, at our sole discretion, use other space or available capacity on Our vehicles or in shipping containers for other Customers’ Items, unless our Quotation contains written confirmation that we will not do so in rendering Services to You.
6.4. We may unload, reload and or repack your Items from or into a vehicle or shipping container, or another vehicle or shipping container at our discretion and in line with our available resources.
6.5. We may, at our sole discretion, store or hold Items in any of Our and/or Our agents’ storage facilities or warehouses.
7. YOUR RESPONSIBILITIES
7.1. It remains, at all times, the sole responsibility of the Customer to: –
7.1.1. obtain and/or procure, at his/her own cost, any document or authorisation needed, giving permission for the Services to be completed, such as a visa and/or customs authorisation and/or import or export controls or authorisations required;
7.1.2. arrange for the security or safekeeping of Your Items when they are collected or delivered, by physically being there yourself or by arranging someone else to physically be present on Your behalf;
7.1.3. inspect or arrange for the inspection of any Items delivered to Us by a third party on Your behalf; and/or
7.2. We are never responsible for lost keys.
8. YOUR WARRANTY OF LAWFUL OWNERSHIP OR POSSESSION OF THE ITEM(S)
8.1. You assure/warrant/promise that: –
8.1.1. You are the lawful owner of the Item(s) to be transported; or
8.1.2. you have expressly been authorised by the lawful owner of the Item(s) to use our Services and have such Item(s) transported.
8.2. You indemnify Us against any damages and/or costs awarded against Us if You use Our Services in contravention of the warranties of lawful ownership or possession contained in 9.1.1 or 9.1.2 above.
9. ITEMS EXCLUDED FROM OF OUR SERVICES AND RESULTANT LIABILITY
9.1. The following Items are specifically excluded from these Terms and will not form part of the Services We render or result in any liability on Our part for the loss or damage of such Item(s): –
9.1.1. any valuable Items, such as any item of jewellery, watches, precious stones, money, stamp collections, title deeds, share certificates and/or any similar items or collections;
9.1.2. any pet(s) or other live animal(s), regardless of whether or not such pet(s) or animal(s) are properly stored in a cage, tank or any other relevant storage or transportation container;
9.1.3. any plants or flowers, including pot plants and dried flower arrangements;
9.1.4. any abnormal Items, for example, any item(s) that are too large or too heavy to be removed without specialised machinery;
9.2. These Terms and Our Services also specifically exclude any of the following Item(s), which we may throw away, discard, destroy or retain, with or without informing you: –
9.2.1. any potentially dangerous, damaging or explosive Items;
9.2.2. any Items that might attract vermin or other pests or cause an infestation;
9.2.3. any partly-used liquids or any food or drink from any appliance such as a refrigerator or a freezer.
9.3. We are not responsible for any loss or damage You suffer in connection with any of the Items excluded in this clause 10.
10. CANCELLATION OR POSTPONEMENT OF SERVICES
10.1. We may charge a reasonable deposit for any advanced booking of Our Services.
11. PAYMENT FOR OUR SERVICES
11.1. Payment for Our Services can be made by way of electronic funds transfer (“EFT”) or payment with a credit card.
11.2. Charges are due, owing and payable for: –
11.2.1. quotation costs before own delivery takes place;
11.2.2. storage costs: after 7 free days;
11.2.3. any other services: before or upon Us preforming such services.
11.3. For any amount that remains unpaid after the due date, We may charge interest at a rate of 4% (four percent) above First National Bank’s prime bank / interest rate in a given calendar year.
11.4. We shall have a general lien (claim) over any Items in Our possession covering all amounts due and/or expenses incurred. This means that under certain circumstances, We may be entitled to sell your Items in our possession to recover your debts owed to Us.
12. OUR LIABILITY FOR LOSS OR DAMAGE
12.1. We will not be liable to the Customer for any claims, losses or damages (including consequential or indirect losses or damages) which may be suffered by the Customer relating directly or indirectly to the Services provided, arising from any cause whatsoever, including but not limited to claims (by a third party or otherwise) for loss or damage resulting from:
12.1.1. fire or flood;
12.1.2. theft (including hijacking during the rendering of Services);
12.1.3. acts of God, including natural disasters, atmospheric or climate changes;
12.1.4. acts of terrorism, war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power;
12.1.5. moths, vermin or similar infestation;
12.1.6. Items moved under repair or restoration, including furniture that is dismantled or re-assembled;
12.1.7. wear and tear of any nature, including discolouration, fading or stains;
12.1.8. Items moved which are frozen. We move frozen items and perishables at your own risk and are not liable for any death, injury, sickness and or loss suffered following the removal and storage of any such Items.
12.1.9. leakage or evaporation of any nature;
12.1.10. tuning and re-tuning of any instruments or analogue equipment such as clock mechanisms,
12.1.11. sensitive equipment, or any item that is not suitable for being transported;
12.1.12. motor-driven item (unless there are any visible sign of impact damage on the outside of the item);
12.1.13. Items moved which are brittle or fragile, such as electronic equipment or Items made from glass or self-assembled furniture;
12.1.14. defective items, regardless of whether the damage is inherent or latent in nature;
12.1.15. items left inside cupboards or other furniture, including keys left in furniture;
12.1.16. items received from any third party;
12.1.17. items delivered to or from an auctioneer, auction room, communal (shared) storage area or other similar business;
12.1.18. items left in a deep freezer or fridge;
12.1.19. damage caused to freezers in which goods are packed;
12.1.20. the moving or general handling of any Item(s) referred to in clause 10 above; and/or
12.1.21. indirect (consequential) loss, except up to the maximum amount of our liability for indirect consequential loss, which is limited to R300.00 (Three Hundred Rand) per cubic meter of the volume of the Item(s) lost or damaged, even if (i) the Item(s) form part of a pair or set or (ii) have a value exceeding this limitation.
12.1.22. worsening quality or condition of any plant or perishable item;
12.2. The Consumer Protection Act provides that We cannot include provisions in these Terms which limit or exempt us from liability for any loss directly or indirectly attributable to Our gross negligence or the gross negligence of any person acting for or under Our control.
12.3. Further in terms of the Consumer Protection Act, We are liable to You for loss or damage to your Items or a failure to deliver your Items which is attributable to substandard packing materials, maintenance on Our vehicles or any other material or object used in Our rendering of Services, which liability is only applicable if We should have known about the substandard level of packing materials, maintenance on Our vehicles or any other material or object used in Our rendering of Services.
12.3.1. Further in terms of the Consumer Protection Act, We have a duty to You to treat your Items in Our possession as if they were Our own property, and to exercise the degree of care, diligence and skill in the handling and safeguarding of your Items which can reasonably be expected from a person responsible for managing any Items belonging to another person.
13. DELAYS IN TRANSIT
13.1. If there is a delay in our rendering of Services and the cause of the delay is within Our reasonable control, we will pay your reasonable expenses directly resulting from such delay, within 14 (fourteen) days of forwarding of proof of such expenses to us.
14. TIME LIMITS FOR CLAIMS; NO CLAIMS IF THE ITEM(S) WERE NOT SPECIFIED IN THE LIST OF ITEMS / RECEIPT (INVENTORY)
14.1. No liability for any loss or damage to your Items moved will be accepted by us unless: –
14.1.1. your claim notification is given to Us in writing at the time of and on the day of collection for Items which You and/or your agent collect from Us.
14.1.2. for any other circumstances, your written claim notification must be received by Us within 7 (seven) days of delivery of your consignment / Items at their destination.
14.2. In respect of circumstances arising under 16.1.1 or 16.1.2 above, the stipulated time limits are essential to these Terms and failure to adhere to the stipulated time limits will entitle Us to reject any claim notification received after the lapsing of the relevant time limit above.
14.3. A list / receipt setting out brief but sufficiently clear descriptions of all those Items We have packed, moved, shipped, handled and/or stored will be final, unless You write to Us within 7 (seven) days of being presented with the list/receipt, stating any mistakes or changes that need to be made.
14.4. If any Items that are not on the list / receipt given to You by Us form the basis of any claim by You under any provision of these Terms, we are entitled to reject such claim and bear no liability for any resultant loss or damage.
15. OUR RIGHT TO HOLD YOUR ITEMS AS SECURITY FOR OUTSTANDING PAYMENT AND TO SELL THOSE ITEMS IN THE EVENT OF YOUR CONTINUED NON-PAYMENT
15.1. We have the right to keep and eventually sell or dispose of your Items in Our possession until You have paid all or any charges owed to Us for rendering Services to You and/or as provided for in these Terms, which may include any amounts We have paid on your behalf.
15.2. While We keep any Items as security for payment the provisions of these Terms will continue to apply and You will be legally responsible for storage and other costs in relation to Our storage of your Items.
15.3. We will not release your Items or cease the levying of further storage and other costs until such time as You have paid all monies owing.
15.4. In the event that you have not paid all monies owing to Us and we are keeping your Items as security for payment, We will send You a letter by e-mail to your e-mail address provided by You, in which letter we will:-
15.4.1. demand that you remove your Items and pay Us any monies owed within 30 (thirty) days of the letter being delivered to you; and
15.4.2. give you written notice that we are entitled to and may elect to sell your Items if such monies owed remain unpaid after 30 (thirty) days of the letter being delivered to you.
15.5. You shall be legally responsible for the cost of selling or disposing of your Items.
15.6. We will pay You the balance of any monies left over, if any, after all monies owed to Us have been deducted, including the cost of selling or disposing of your Items.
16. DISPUTES AND APPLICABLE LAW
16.1. You may not delay payment or deduct (set-off) any amount owed to Us under these Terms in the event of a claim or dispute arising between the Parties.
16.2. These Terms are deemed to have been entered into in the city or town where the Items are collected from.
16.3. The interpretation of these Terms and the resolution of any dispute arising from these Terms is subject to the laws and courts of the Republic of South Africa.
16.4. If the Customer concludes these Terms in a foreign jurisdiction and the rendering of Services involves the collection or delivery of Items in the Republic of South Africa, these Terms are deemed to have been entered into in the Republic of South Africa and not any such foreign jurisdiction.
16.5. You shall be liable for any charges, expenses, damages or penalties claimed against Us by a third party in connection with any of your Items or Our rendering of Services to You, unless You can adduce reasonable evidence which shows that We were negligent or had agreed, in writing, to pay a third-party claim at Our own expense.
16.6. Claims by a third party include parking charges that We may have to pay in order to render our Services to You, which form part of those expenses We can claim from You in terms of clause 8 above.
17. OUR RIGHT TO SUB-CONTRACT THE RENDERING OF SERVICES TO YOU
17.1. The Customer acknowledges that We are entitled to subcontract the rendering of Services to You, which subcontracting may encompass the rendering of any part of or all the Services to a third-party subcontractor, which entitlement is within Our sole discretion.
17.2. If We subcontract the rendering of any Services to You, the provisions of these Terms will remain in force and applicable between You and Us.
17.3. You do, however, expressly agree to be bound by any ancillary terms set forth in the Bills of Lading, Consignment Notes and any such documentation issued by other carriers or organisations involved in the rendering of Services to You, which terms set forth form part of these Terms between You and Us in the course of rendering Services to You.
18. OUR TERMS OF STORAGE, STORAGE CHARGES AND YOUR AGREEMENT THERETO
18.1. Storage charges will become applicable if customer fails to collect the consignment within 7 (seven) days of arrival at the destination warehouse.
18.2. Storage change will be charged at R50 (fifty rand) per day, after the 7 (seven) free days as mentioned in 21.1.
19. OUR PROTECTION OF YOUR PERSONAL INFORMATION
19.1. You acknowledge that any personal information supplied to Us is provided voluntarily and that We cannot be held liable for any inaccuracies in the personal information You provide, and may not be able to comply with Our obligations under these Terms if incorrect Personal Information is supplied to Us.
19.2. You understand that privacy is important to Us and We will take reasonable steps in order to ensure that any personal information in Our possession or processed on Our behalf is kept confidential, stored in a secured manner and processed in terms of South African law and solely for the purpose(s) in respect of which You have authorised the use thereof.
19.3. You warrant that all information, including personal information, supplied to Us is accurate and current and agree to correct and update such information when necessary. By submitting any personal information to Us in any form, You acknowledge that such conduct constitutes a reasonable unconditional, specific and voluntary consent to the processing of such personal information by Us and/or verification of and/or the supply of such information to Our agents, subcontractors and/or relevant authorities.
19.4. To prevent unauthorised access, We have implemented policies and utilise technologies with the objective of safeguarding and securing the information We collect. Access to any personal information is only permitted among Our employees, subcontractors and agents in order to process any requests by You and/or to render Services to You.
19.5. Our retention, storage and destruction of documentation and information is done in accordance with the POPIA. For any queries, data breach or access to your information, please write to Us or send Us an e-mail.
20. OUR ADHERENCE TO BRIBERY AND CORRUPTION AND ANTI-TRUST CHARTERS
20.1. Our fundamental values are integrity, transparency and accountability. Based on these values, We have made a longstanding commitment to combat kickbacks, extortion, bribery and corruption in all forms. We subscribe to the Prevention of Corruption Act 12 of 2004 and any similar international legislation. Where there is doubt, guidance should be sought from a Director.
20.2. No financial or other inducements should be given to third-party organisations or to individuals from such organisations under any circumstances, including government agencies and representatives.
20.3. Our offering for sale of Services and Our purchasing of products and services from third-party suppliers is so done solely on the basis of quality, performance, price, value and/or for the benefit of Our Customers and never on the basis of giving or receiving inducements in the form of payments, gifts, entertainment or favours or in any other form.
20.4. For further information on Data Protection or Bribery and Corruption, please refer to our website – www.elliott.co.za.
20.5. We accept and agree to abide by the FIDI Anti-Trust Charter and Code of Conduct, which is included in the FAIM Implementation Manual and is available on the FIDI website – www.fidi.org.
21. YOUR USE OF AND ACCESS TO OUR WEBSITE
22.1. No alteration, cancellation, variation of, or addition to these Terms shall be of any force or effect unless reduced to writing and signed by all the Parties to this Agreement or their duly authorised representatives.
22.2. No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice such Party or preclude such Party from exercising any of its rights in the future.
22.3. No waiver of any of the provisions of these Terms shall be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given.
22.4. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
22.5. Each paragraph, clause and provision of these Terms shall be considered severable and if, for any reason, any part of these Terms is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment issued by any court, it shall not impair the operation of, or have any effect upon such other portions of these Terms as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the Parties hereto.