TERMS AND CONDITIONS OF CARRIAGE.
1. DEFINITIONS
1.1. In these terms and conditions of carriage, the following terms shall have the following meanings: 1.1.1 “consignment” – means all goods transported under a single waybill or providing services to the shipper; 1.1.2 “Goods” – includes all goods, parcels or documentation transported by Madibana SA for the shipper, and includes the packaging in which such goods or documents are contained; 1.1.3 “shipper”- includes any person, natural or juristic, at whose request or instance, or whose behalf, or for whose account, Madibana SA transports the goods and specifically includes the sender of the goods; 1.1.4 “carriage” – means the conveying or transportation of goods from one place to another.
2. APPLICATION OF TERMS AND CONDITIONS
2.1. These terms and conditions shall apply to all transactions concluded by or on the shipper’s behalf on our website. (www.madibana.com)
3. SHIPPER’S WARRANTIES
3.1. The shipper warrants that: 3.1.1 They are the owner of the goods or that they are authorised by the owner to deal with the goods; 3.1.2 All information, instruction and documentation supplied to Madibana SA shall be true and correct in every respect; 3.1.3 All goods will be properly and appropriately packed, marked, labelled and addressed so as to ensure safe transportation. Should the goods not be properly and appropriately packaged, Madibana SA reserves the right to re-package and re-price the shipment, whilst continuing with the carriage; 3.1.4 The goods or any part thereof, do not constitute illegal articles, or hazardous articles, or articles prohibited or restricted for transportation, or articles prohibited or restricted for distribution, in terms of national and international laws or regulations, or the dictates or requirements of any airline or airport or applicable authority, including those of The International Air Transport Association; 3.1.5 The goods will have been properly entered and cleared for import or export and will comply with all laws regulating their import or export; 3.1.6 The goods will be supplied with, and accompanied by, all documentation required for their import or export; 3.1.7 The shipper is registered with customs and exercises as an exporter or importer, as the case may be, if applicable.
4. RIGHT OF INSPECTION
4.1. Madibana SA is entitled, but not obliged, to open and inspect the goods at any time.
5. INSURANCE
5.1. Madibana SA will endeavour to obtain for the shipper, such insurance as the shipper timeously and in writing instructs Madibana SA to effect, subject to payment by the shipper of the applicable premium; 5.2 Such insurance will be subject to such exceptions, exclusions, limitations, maximums and conditions imposed by the insurer taking the risk and it is the responsibility of the shipper to acquaint themselves with these; 5.3 Madibana SA does not guarantee that all goods will be capable of being insured, or that all risks will be capable of being insured against, or that insurance will be obtained for the amount requested by the shipper; 5.4 To the extent that Madibana SA agrees to arrange insurance for the shipper, it does so as an agent, for and on behalf of the shipper, notwithstanding that the premium may be paid by Madibana SA; 5.5 Save to the extent set out by these terms and conditions, the transportation of goods is solely at the risk of the shipper.
6. TRANSIT TIME, ROUTING AND DELIVERY
6.1. Madibana SA will use its best efforts to transport and to deliver the goods in accordance with its advertised services and schedules and/or with the service selected on the waybill but does not guarantee same, or the availability of same, and shall be entitled to depart from same, and is also not responsible for delays occasioned by events beyond its control; 6.2 Madibana SA shall have an absolute discretion on the means, routes and procedures to be followed in the carriage and/or transportation of goods; 6.3 Madibana SA will use its best efforts to deliver the goods to the address reflected on the waybill, should the consignee refuse delivery, or should Madibana SA be unable to locate the consignee, or should Madibana SA be unable to deliver the goods for any reason whatsoever, Madibana SA will use its best efforts to return the goods to the shipper, if so instructed, at the shipper’s expense, failing which, Madibana SA shall be entitled, at its reasonably exercised discretion, to detain, store, sell, abandon or destroy the goods, or any part thereof, at the expense of the shipper.
7. PRICES AND PAYMENTS
7.1. Madibana SA’s prices are set out in its price list or are as negotiated or quoted to the shipper and are subject to review from time to time; 7.2 Prices quoted are subject to the information provided by the shipper, and should this information be found to be incorrect, Madibana SA has the right/discretion to re-weigh the shipment and adjust the prices based on the correct information, amend same on the Waybill and proceed with the carriage or transportation of goods; 7.3 Stationery and packaging materials other than Waybills, flyers, Consol bag tapes, stickers and thermal labels shall incur costs; 7.4 Any credit limit, invoice frequency, or payment terms set by Madibana SA shall be at its sole and absolute discretion and may be changed by Madibana SA depending on any circumstance existing or arising from such carriage that Madibana SA believes justifies such changes; 7.5 The shipper agrees to Madibana SA’s terms of payment and that Madibana SA shall be entitled to suspend, delay and/or cancel collection and/or delivery of any consignment(s) in the event of non-payment, or to hold the consignment(s) until such time as the account has been settled in full or to Madibana SA’s satisfaction; 7.6 Failure to pay your account within stipulated times/period or days from the date of delivery of a tax invoice will attract interest at the rate of 24% per annum in terms of the National Credit Act; 7.7 The shipper will be liable for all legal costs incurred by Madibana SA on an attorney and client scale, including but not limited to Sheriff’s fees, collection commission and tracing agent’s fees and all other costs arising from such action, in the event of Madibana SA instituting legal action in order to secure payment of any outstanding account.
8. LIEN
The goods and all documents relating thereto, as well as any refunds, repayments, claims and other recoveries processed by Madibana SA on the shipper’s behalf, shall be subject to a special and general lien, as well as a pledge in favour of Madibana SA, either for monies due in respect of such goods or for other monies due to Madibana SA by the shipper.
9. INDEMNITY
The shipper indemnifies the company against all liabilities, damages, claims, costs and expenses incurred or suffered by Madibana SA arising directly or indirectly from, or in connection with, the shipper’s instructions or their implementation by, or on behalf of, or at the instance of Madibana SA, in relation to the transportation of the goods (even where Madibana SA has consented to the transporting of goods), or any other breach of the warranties given to Madibana SA by the shipper.
10. LIMITATION OF LIABILITY
10.1. Madibana SA’s liability to the shipper in respect of goods in its custody will terminate once proof of delivery has been obtained from the consignee at the address stated on the waybill/Airwaybill/Bill of Lading; 10.2 All framed pictures, artwork, solar panels, mirrors and negotiable instruments are carried entirely at the shipper’s risk; 10.3 Madibana SA will not be responsible for any fulfilment of Customs formalities or payments, however, will reasonably assist the shipper on condition that such assistance will be rendered at the sole risk and responsibility of the shipper and the shipper undertakes to indemnify Madibana SA against any claims in this respect.
11. EXCLUSIONS
Madibana SA shall not be liable for any delay, loss or damage caused by, or attributable to: 11.1 An act of God, casus fortuitous, vis major or any circumstance beyond Madibana SA’s control; 11.2 An act or omission on the part of the shipper, the consignee or any other third party; 11.3 Any latent defect, or inherent vice or weakness in the goods; 11.4 Any reason other than a grossly negligent act or omission on the part of Madibana SA.
12. CLAIMS AND LEGAL LIABILITY
12.1. Any claims against Madibana SA must be brought in writing accompanied by copies of all relevant documents within 14 days from the date of delivery of the goods by Madibana SA; 12.2 In circumstances of non-delivery, within 14 days of the scheduled delivery date, failing which, it shall be deemed that no such claim exists and the shipper is satisfied with delivery thereof; 12.3 All matters arising from this agreement, its validity, existence or termination shall be determined in accordance with the laws of the time of the Republic of South Africa, and the shipper hereby submits to the jurisdiction of the Magistrates Court in Kempton Park; 12.4 The shipper hereby confirms that a tax invoice received from Madibana SA showing the amount owing by the shipper, shall be sufficient proof that such amount stated in said invoice is the amount due and owing, such invoice will constitute sufficient proof for the purpose of constituting legal action, proof of shipper’s debt in the case of insolvency, or for any other purpose whatsoever; 12.5 No indulgences, latitude, extension of time or the like granted to the shipper shall in any way whatsoever, constitute a novation or waiver of any rights which Madibana SA may have against the shipper, nor may it operate as an estoppel against Madibana SA.
13. GENERAL
13.1. These terms and conditions constitute the whole agreement between Madibana SA and the shipper as to the subject matter hereof and no agreements, representations or warranties between Madibana SA and the shipper, other than those set out in these terms and conditions are binding on the parties; 13.2 By using Madibana SA’s collection and delivery service and by affixing an electronic signature thereon, the shipper agrees to be bound by its terms and conditions, and the shipper acknowledges such terms and conditions will constitute a valid, binding and enforceable agreement; 13.3 Madibana SA is neither a common carrier nor a public carrier and may decline to transport any goods delivered into its possession without giving reasons; 13.4 In terms of section 22(2) of the Electronic Communications and Transactions Act, 25 of 2002, the shipper accepts that the agreement will be regarded as concluded at 48 Director Road, Kempton Park, Gauteng Province, South Africa; 13.5 A certificate issued by an administrator of Madibana SA’s website shall constitute prima facie proof of any fact related to Madibana SA’s website, including, but not limited to, which version of the terms and conditions govern a particular dispute and what content was published or functionality was available on our website at any specific point in time; 13.6 It is also agreed that Madibana SA may use any means to verify the information provided by the shipper and in the event of any default by the shipper, Madibana SA may furnish the shipper’s details to any registered credit bureau.