Bigfoot Express Freight – Standard Terms and conditions of Trade and Carriage

Bigfoot Express Freight Standard Terms and conditions of Trade and Carriage

IMPORTANT

Please read our terms and conditions of Trade and Carriage very carefully. Take note that BIGFOOT’S LIABILITY IS EXCLUDED as well as that of its employees or agents for loss, damage and delay in certain circumstances. BIGFOOT’S LIABILITY IS LIMITED to stated amounts where liability is accepted. STRICT TIME LIMITS apply where NOTICE OF CLAIMS is required. It is your duty to obtain insurance cover to protect your interests.

1. DEFINITIONS AND INTERPRETATION

1.1. Unless the context indicates otherwise, the following words, terms or expressions shall have the meanings assigned to them hereunder these Conditions and cognate expressions shall have corresponding meanings:

1.1.1. “Bigfoot” means Bigfoot Express Freight Proprietary Limited (registration number: 2005/006977/07) and/or any sub-agent or independent contractor assigned or employed by it

1.1.2 “CPA” means the Consumer Protection Act 68 of 2008 (as amended from time to time) and the regulations thereunder;

1.1.3 “Conditions” means these terms and conditions of carriage as set out in this document and published in printed form and electronically at www.bigfootexpress.co.za, as amended from time to time;

1.1.3. “Customer” / “Sender” means the person for whom the carriage of the Goods is performed by the Courier under these Conditions;

1.1.4. “Goods” means the items accepted by Bigfoot for carriage on behalf of the Sender under these Conditions;

1.1.5. “Recipient” means the person to whom the Goods are to be delivered under these Conditions; and

1.1.6. “Services” means all of the operations and services provided or to be provided by Bigfoot in connection with the carriage of the Goods including without limitation, the carriage, transport and/or storage of the Goods or any operation/s or service/s incidental to any of them.

1.2. words importing:

1.2.1. any one gender include the other two genders;

1.2.2. the singular include the plural and vice versa; and

1.2.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;

2. PURPOSE, APPLICATION AND AMENDMENT

2.1. The Customer hereby acknowledges and agrees that it has read and understood these Conditions.

2.2. These Conditions supersede all previous published terms and conditions. These Conditions supplement and detail the general terms and conditions on the back of Bigfoot waybills and other publications. In case of conflict between these conditions and the conditions on any Bigfoot waybill, manifest, shipping label or other transit documentation, these conditions govern to the extent that they do not conflict with the mandatory rules relating to liability for carriage provided by the laws of South Africa.

2.3. Bigfoot reserves the right to unilaterally modify, amend, change or supplement these Conditions without notice. No amendment or consensual cancellation and/or variation of any of the provisions or terms hereof and no extension of time or waiver or relaxation of any provisions of these Conditions shall be binding unless recorded in a written document signed by a duly authorised director of Bigfoot and a duly authorised representative of the Customer.

2.4. All business undertaken including guidance, information or service provided by Bigfoot shall be subject to these Conditions and each Condition shall be deemed to be incorporated in and to be a condition of agreement between Bigfoot and the Sender of the Goods.

2.5. The Sender will be bound by the signature of any of its employees, servants and agents on the Bigfoot Waybill.

2.6.. Bigfoot shall not be strictly liable for any damages or losses, except in the event of gross negligence, fraudulent actions, or intentional misconduct established to the satisfaction of a competent court, or as otherwise provided by the CPA or by any other applicable law of the Republic of South Africa.

3. OPERATIONAL PROCEDURES

3.1. Bigfoot reserves the right to transport the Goods received from any Customer and/or the Sender by any means at its disposal and may use any carrier to perform its duties. All Goods that require forwarding to facilitate delivery may be held at Bigfoot’s discretion and at the Customer and/or the Sender’s cost until suitable delivery arrangements can be arranged. Bigfoot is entitled to use independent parties to perform any of the functions required for completion of its duties. Bigfoot shall not be liable for any act, or omission of such third party except where such act or omission is due to any gross negligence, fraudulent actions, or intentional misconduct caused by Bigfoot which is to be established to the satisfaction of a competent court, or as otherwise allowed by applicable laws of the Republic of South Africa. Bigfoot reserves the right to, after consultation with the Customer / Sender, take action on behalf of the Customer and/or the Sender should the independent carrier fail to carry out its duties suitably. The costs associated with taking such action would be for the account of the Customer and/or the Sender and shall be payable to Bigfoot on demand.

3.2. The Customer is required to provide Bigfoot with instructions timeously and in writing in order to afford Bigfoot a reasonable opportunity to comply with such instructions. Bigfoot may be entitled, but not obliged, to act on oral instructions alone. If there is a conflict between any oral or written instructions or between the various written instructions themselves, or in the absence of instructions, Bigfoot shall determine the course to be adopted, in its sole discretion, having regard to the Customers known requirements. Notwithstanding that Bigfoot may purport or attempt to act on any instructions, no liability shall attach to Bigfoot for failure to perform such instructions except in the event of any gross negligence or intentional misconduct caused by Bigfoot (which is to be established to the satisfaction of a competent court), or as otherwise allowed by the applicable laws of the Republic of South Africa. Bigfoot shall be entitled to recover its charges and/or expenses including those incurred acting in terms hereof.

4. QUOTATION, TARRIFF AND PAYMENT

4.1. All quotations are estimates, validity of the quote is subject to Bigfoot verifying the weight and dimensions of the cargo. Rates, tariffs and surcharges are subject to withdrawal or revision by Bigfoot at any time. Bigfoot shall be at liberty to revise all quotations, rates, tariffs or surcharges with or without noticing cases where Bigfoot’s costs are affected by any of its suppliers and may do so with reasonable notice to the Customer. Charges are calculated on the basis of either actual or volumetric mass, and for purposes of rating, the greater of the two calculations is deemed to be the chargeable mass for the purposes of measuring the volume, mass and/or dimensions of any package. The measurements as calculated by the dimension’s machinery and/or company representative will be regarded as conclusive proof of the volume, mass and/or dimensions of the package so measured. Only written quotations provided by Bigfoot will be valid.

4.2. Unless credit terms are agreed, Bigfoot charges, disbursements, duties, taxes, including VAT, are payable by the Sender on acceptance by Bigfoot of the Goods or immediately upon Bigfoot’s demand. Where Bigfoot has previously agreed to grant credit facilities to the Customer and unless otherwise agreed in writing by Bigfoot, the Customer shall pay to Bigfoot, without any alterations, deductions or set-off, within 30 (thirty) days from the date that a written statement of account has been provided to the Customer.

4.3. Where the Sender has stipulated that a party other than itself is liable to Bigfoot for payment of its charges, the Sender shall remain liable to pay such charges on demand.

4.4. Where the stipulated party (referred to in 4.3) is an account holder with Bigfoot, proof of authority for delivery of freight under its name or contract, must be provided by the Sender.

5. COLLECTION OF GOODS

If any Goods have not been accepted or collected by the Recipient and/or its nominee within a reasonable time after the tender thereof, and for the purposes thereof notification to the Recipient and/or its nominee of the fact that the Goods are available for collection or that Bigfoot is willing to deliver the Goods shall be deemed to be a good and sufficient tender. Bigfoot shall notify the Customer at its registered legal address and, after the expiration of ten (10) days from the posting to that address of such written notice and unless the Customer shall give Bigfoot instructions to redeliver the Goods, at the Customer’s expense, Bigfoot shall be entitled and authorised irrevocably and in re suam, to sell or dispose of the Goods and retain from the proceeds the charges, expenses and costs incurred in the carriage thereof.

6. BIGFOOT’S LIEN AND OTHER RIGHTS IN TERMS OF BIGFOOT’S POSSESSION

6.1. Bigfoot and /or its nominee reserves the right to open and examine any Goods

tendered to fulfil security obligations at any time and to comply with laws dealing with the transport of hazardous or noxious material.

6.2. Bigfoot shall have a lien and shall be entitled to hold any Goods, documents and/or

any refunds, claims or recoveries in its possession or under its control as security for any monies owing to Bigfoot by the Customer, whether past or present, for the carriage of any Goods subject to these Conditions.

6.3. Although Bigfoot may initially have granted credit to the Customer, Bigfoot may at any time, at its sole discretion, retain possession of any Goods pending the discharge of the Customer’s indebtedness to Bigfoot.

6.4. In the event that Bigfoot exercises its lien and retains possession of any Goods as

reflected herein above, then Bigfoot shall be entitled to store the Goods at such place as it deems fit, at the Customer’s expense.

6.5. If any monies owing to Bigfoot are not paid by the Customer within 30 (thirty) days

after they are due, Bigfoot shall be entitled, without further notice to the Customer:

6.5.1. to open and examine the Goods;

6.5.2. to sell the whole or any part of the Goods in such manner and on such conditions

as it deems fit;

6.5.3. to apply the proceeds of any sale, after deducting all expenses thereof, in

payment or reduction of any amount due by the Customer to Bigfoot including

storage costs envisaged in clause 6.4 here above, provided that any surplus shall

be paid over to the Customer without interest immediately after the sale, if the

Customer’s address is known, and if not, upon demand made by the Customer

within 90 (ninety) days of the sale.

6.6. Bigfoot shall not be liable for any loss, damage or deterioration of any such Goods

attributable to the implementation of this clause 6.

6.7. Bigfoot’s rights under this clause 6 are not exhaustive and are in addition to any other rights which it may have against the Customer.

6.8. If it is necessary for an examination to be conducted by Bigfoot in respect of any

discrepancy in the Goods which are landed from any vessel, aircraft, vehicle or container, the responsibility to comply with any regulations, laws and/or obligations pertaining to the Goods remains solely that of the Customer and/or the Sender, notwithstanding the contractual relationship between Bigfoot and Customer and/or the Sender. Bigfoot shall not be required to be so compliant or to procure such compliance nor for any and all costs, fees and penalties relating thereto.

7. PACKAGING

7.1. Bigfoot shall not be liable for any loss, damage or deterioration of any Goods and it is the sole responsibility of the Customer / Sender to:

7.1.1. package Goods for transportation and ensure that all Goods are adequately

packaged to withstand the ordinary incidents of transit risk and normal rigours of

road transportation;

7.1.2. adequately and clearly address each consignment to enable effective delivery

thereof.

8. DELIVERY OF GOODS

The onus of establishing the condition of the Goods at the time of delivery thereof by Bigfoot shall rest with the Customer and/or the Sender. Without limiting the generality of the aforegoing, Bigfoot shall be entitled to delay the dispatch of any Goods or expedite the date of dispatch if Bigfoot, in the sole discretion of Bigfoot, considers it necessary for the safety of the Goods or if, in the sole discretion of Bigfoot, there is a backlog of Goods with higher priority and/or any other reason. Bigfoot will only deliver Goods that are the property of the Customer and/or the Sender and the Customer and/or the Sender warrants that it is authorised to accept these Conditions, which the Customer / Sender hereby accepts and that it accepts these Conditions also for and on behalf of the agents and representatives of the Customer / Sender as well as for and on behalf of all other persons who are or may become interested in the Goods. The Customer and/or the Sender (as the case may be) hereby indemnifies Bigfoot and hereby holds Bigfoot completely free ad harmless against any damages, loss, costs and expenses resulting from any breach of this clause 8 and that the Customer and/or the Sender (as the case may be) agree(s) to pay all such damages, loss, costs and expenses immediately on demand made.

9. COMPANY LIABILITY

9.1. Bigfoot shall not be liable for any loss or damage to the Goods, not caused directly by any gross negligence or intentional conduct or omission on the part of Bigfoot . Where Customers lodge a claim and Bigfoot chooses to accept limited liability as specified herein, then and in such a case, no such claim shall be considered unless the Customer and/or Sender lodges a claim in writing within 5 working days after delivery of the Goods to the Recipient.

9.2. Notwithstanding anything to the contrary contained herein, Bigfoot’s liability shall not exceed R1 000.00 (one thousand Rand) per consignment of Goods, unless gross negligence or intentional conduct or omission can be successfully proven.

9.3. Bigfoot shall not be liable for indirect or consequential loss or damage to any

consignment of Goods or in respect thereof.

9.4. Bigfoot shall not be liable whatsoever for any loss or damages howsoever arising in

respect of late or non- delivery of any Goods unless caused by the gross negligence of Bigfoot.

9.5. Bigfoot’s consideration of a claim does not constitute an acceptance by Bigfoot thereof.

10. LOSS OR DAMAGE TO GOODS

10.1. No responsibility or liability whatsoever shall attach to Bigfoot or its employees for any loss or damage to Goods unless such loss or damage:

10.1.1. occurs whilst the Goods are in actual care, custody and control of Bigfoot;

10.1.2. is due to the gross negligence, intentional and/or wilful act or default of Bigfoot or its employees.

10.2. Bigfoot shall under no circumstances be liable for:

10.2.1. loss or damage incurred through Goods being tendered with inadequate

packaging and packing;

10.2.2. any loss or damage whatsoever caused by the perishable, fragile or brittle nature

of the Goods and packaging;

10.2.3. Loss or damage to any parcel exceeding the prescribed size or weight limitations;

10.3. Notwithstanding anything to the contrary contained or implied in this clause 10, Bigfoot shall not be liable (howsoever and/or whatsoever) for: (1) mechanical or electrical Goods unless contained in brand new and original packaging; (2) antiques or antiquities of any description; (3) arms and/or ammunition and any weaponry; (4) live animals of any description (including, without limitation, birds); (5) bank and treasury notes; (6) gold bullion; (7) currency and/or cash; (8) bulk cargo of any description; (9)deeds and documents; (10) designs and plans; (11) documents, explosives, furs, gold bullion, silver nuggets, models, moulds, patterns, precious metals; (12), specie; (13) travellers cheques; (14) brass and scrap metal; (15) seafood, fresh produce, and frozen goods; (16) furs; (17) silver nuggets; (18) models, moulds and patterns; (18) harmful and noxious material and Goods; and (19) aircraft; unless Bigfoot agrees in writing, prior to any such Goods being received or taken by Bigfoot, to accept liability for the handling of the items listed in this clause 10;

10.4. If Bigfoot is for any reason unable to effect delivery of the Goods, reasonable steps

will be taken to return the Goods to the Customer and/or the Sender. The Customer and/or the Sender shall be responsible for the costs of carriage, attempted delivery and return of the Goods.

11. DANGEROUS GOODS

11.1. No Goods will be received or accepted by Bigfoot including radioactive materials

which are or may become dangerous, inflammable or noxious, or which by their nature are or may become liable to cause injury or damage to any person, goods or property whatsoever without Bigfoot’s prior written consent to accepting to deliver or carry such Goods. Should Bigfoot consent to the movement of any of the above, the Customer and/or the Sender (as the case may be) must ensure that the containers or packaging for any such Goods must be marked accordingly as to comply with all laws (including, without limitation, all applicable legislation, regulations or requirements of any authority). Bigfoot reserves the right to destroy any of the above should the necessary consent not be confirmed in writing prior to the Goods being accepted or taken by or for or on behalf of Bigfoot. Whether or not the Customer and/or the Sender is aware of the nature of the Goods and whether or not Bigfoot’s written acceptance thereof is obtained, the Customer and/or the Sender (as the case may be) hereby completely indemnify / indemnifies Bigfoot and hereby hold / holds Bigfoot fully free and harmless against any loss, damage or liability caused incurred by Bigfoot and/or otherwise as a result of the acceptance or taking of such Goods by or for pr on behalf of Bigfoot or the freight or carriage of such Goods by Bigfoot. The Customer and/or the Sender (as the case may be) shall pay all claims for such loss, damages, liability and all costs relating thereto immediately on demand made. Bigfoot shall not transport any prohibited Goods including without limitation any Goods and materials if the carriage of which is prohibited by any laws, rules and/or regulations or the requirements of any agency – this includes any carriage of Goods which are sanctioned for conveyance to any sanctioned state. In the event that the Customer and/or the Sender consigns such items (contemplated by this clause 11.1) then, in addition to the rights conferred to Bigfoot, and without derogating therefrom, Bigfoot shall have the right to deal with such items as it shall see fit including the right to abandon carriage of the same immediately upon Bigfoot having knowledge that such items infringes on these conditions or the provisions of this clause 11. The Customer and/or the Sender shall be responsible and liable, without limitations for all costs, fines, damages, loss of income and/or legal costs which Bigfoot may incur as a result of the Customer and/or the Sender’s breach of this clause 11, unless such costs, fines, damages, loss of income and/or legal costs are due to Bigfoot’s gross negligence or intentional misconduct where Bigfoot has consented to take any such Goods into its possession and/or to carry such Goods.

11.2. Bigfoot will not accept liability for Goods of this nature (as set out in clause 11,1 above).

11.3 The Customer and/or Sender must provide written proof that the Goods in question are comprehensively insured with a reputable insurer for the duration of the carriage of the Goods and for the time that these Goods may be in the possession of Bigfoot prior to the Goods being taken into Bigfoot’s care, custody and control. Bigfoot shall have right to refuse taking such Goods into its care, custody and control if there is no compliance by the Customer and/or Sender with this clause 11.3.

12. INSURANCE AND ASSUMPTION OF LIABILITY

12.1. Bigfoot does not provide insurance to the Customer. However, subject to the terms and conditions herein and only in particular stated instances, in writing, Bigfoot will assume liability for any loss suffered by a Customer in respect of the items specified in the waybill subject to an additional charge being levied in respect thereof, and provided further that the Customer has expressly in writing indicated specifically that it assumes such liability.

12.2. In the event that the Customer has indicated on the waybill or otherwise in writing that Bigfoot assumes liability, as contemplated by clause 12.1, , an additional fee shall be charged for assumption of liability which shall be payable by the Sender /Customer to Bigfoot as may be set out in the waybill or otherwise in writing by Bigfoot.

13. IMPORTANT EXCLUSIONS

13.1. Bigfoot is not responsible for the packaging of the customer’s Goods and shall not, under any circumstances be liable for any loss or damage to Goods which was not adequately and appropriately packaged to withstand the ordinary rigours and risk of courier transit and road transportation. Bigfoot shall not courier nor carry or accept liability for any Goods exceeding the prescribed size limitation of such Goods.

13.2. Bigfoot is not responsible for ordinary loss in weight or volume or ordinary wear and tear of the consignment of Goods.

13.3. Bigfoot is not responsible for loss, damage or expense caused by delay, even though the delay caused by a risk insured against except in the event of delay caused by a risk insured against or unless such loss, damage or expense is due to Bigfoot’s gross negligence or intentional misconduct.

13.4. Claims shall only be considered if the waybill has been endorsed, i.e. confirming the damage / loss on delivery or endorsed to read “not unpacked and checked”.

13.5. The Customer and/or Sender shall advise Bigfoot in writing, strictly within 5 working days, of the damaged/ lost or stolen goods being delivered/or expected to be received. No claims will be entertained if not received within the 5 working days’ notice period.

13.6. Bigfoot’s assumption of liability for the declared value of any one parcel, shall not

exceed R5 000 000.00 (five million Rand).

13.7, In the event that the declared value exceeds R5 000 000.00 (five million Rand), special arrangements must be made with Bigfoot. The declared value must be substantiated, by a purchase invoice or an up-to-date valuation certificate from a professional valuator.

13.8. All charges, including the fees charged, owing to Bigfoot in respect of the assumption of liability will be payable to Bigfoot as per the conditions of payment laid out in these Conditions.

13.9. In the event of the Customer wanting to lodge a claim:

13.9.1. the damaged Goods must be returned to Bigfoot together with the original invoice reflecting the purchase / cost price (proof of value) of the item. These are required for assessment and/or salvage prior to consideration of a claim. Should the damaged goods and proof of value of item/s not be received by Bigfoot, Bigfoot shall not be obligated to honour its limited assumption of liability nor bear any liability whatsoever in respect of such damaged goods;

13.9.2. the Customer shall be responsible for the first amount or excess amount as

follows:

13.9.2.1. In the event of a hi-jack or theft a minimum of 15% (fifteen percent) of the declared value will be charged (the Customer shall be liable for and pay such charge of 15%);

13.9.2.2. In the event of loss due to any other circumstance or cause, save end except hi-jacking or theft, a minimum of 10% (ten percent) of the declared value will for charged. The Customer shall be liable for and pay such charge of 10%)

13.10. The excess will automatically be deducted prior to settlement.

14. WARSAW CONVENTION

When shipments are tendered for international destinations the provisions of and law to the Warsaw Convention may apply and, in most cases, further limits the liability of Bigfoot in respect of loss or damage to such consignments.

15. COSTS

In cases where non-payments of monies due to Bigfoot occur, the Customer and/or the Sender shall be liable for and shall pay all legal costs incurred by Bigfoot. The Customer and/or the Sender shall be liable for all costs incurred in Bigfoot successfully instituting proceedings against the Customer and/or the Sender in terms of and/or arising from these Conditions and/or the recovery of any monies hereunder, including collection commission, attorney and own client costs (including time-based fees payable by Bigfoot to its lawyers), whether incurred prior or during the institution of legal proceedings, or, if Judgment has been granted, in connection with the satisfaction or enforcement of such Judgment.

16. FORCE MAJEURE

Bigfoot shall not be liable for any failure or delay in supply or delivery of the Goods where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of Bigfoot, including but not limited to war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, theft, vandalism, riots, civil commotions or accidents of any kind.

17. APPLICABLE LAW

17.1. These Conditions shall be subject to and construed in accordance with the laws of the Republic of South Africa.

17.2. Any legal action or proceedings arising out of or in connection with these Conditions may be brought in the KwaZulu-Natal High Court, Durban and irrevocably submit to the

non-exclusive jurisdiction of such court.

17.3. The Customer irrevocably waives any objection they may now or hereafter have that such action or proceeding has been brought in an inconvenient forum.

18. DOMICILIUM / NOTICE ADDRESS

The Customer and/or the Sender appoints its/his/her/their physical address as set out above under “Customer Details (Section A)”, of this document, as his/her/its/their domicilium citandi et executandi for all purposes relating to and/or arising from these Conditions. The Customer and the Sender may change his/her/its/their said domicilium citandi et executandi address, which change shall only be effective after seven (7) working days of receipt of written notice by Bigfoot of such change. Any notice or process sent to the said domicilium citandi et executandi (1) by hand, shall be deemed to be received on date of delivery or service; (2) by pre-paid registered post, shall be deemed to be received 7(seven) working days after postage; and (3) by email, shall be deemed to be received on the date of despatch of the email.

19. GENERAL

19.1. No Remedy Exclusive

No remedy granted by these Conditions shall exclude any other remedy available at law.

19.2. Severability

Any provision in these Conditions which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Conditions shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of these Conditions, without invalidating the remaining provisions of these Conditions or affecting the validity or enforceability of such provision in any other jurisdiction.

19.3. Continuing effectiveness of certain provisions

The expiration or termination of these Conditions shall not affect such of the provisions of these Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

19.4. No waiver

Bigfoot shall not be regarded as having waived or be precluded from exercising any right under these Conditions by reason merely that Bigfoot has shown any indulgence to the Customer or fails to exercise or delays in exercising any right in terms hereof. Any such conduct by Bigfoot shall not give rise to any estoppel against Bigfoot.

19.5. No variation

No variation or cancellation of these Conditions shall be of any force or effect unless reduced to writing and signed by or on behalf of Bigfoot.

20. CPA

If the Customer is a juristic person with an annual income or asset value, at the time of transacting, equal to or exceeding R2,000,000-00, then the CPA shall not apply to these Conditions and the Customer.