GENERAL TERMS AND CONDITIONS OF CONTRACT 

 

1                DEFINITIONS

For the purpose of the terms and conditions of this agreement, unless inconsistent with the context the following words shall carry the following meaning:

1.1          “Ni-Da” – shall mean Ni-Da Transport (Pty) Ltd (Registration no. 1995/10871/07);

1.2          “The Customer” – shall mean;

1.2.1        The Person who instructed Ni-Da to perform services on the Customer’s behalf;

1.2.2        Any Person who accepts Ni-Da’s quotation;

1.2.3        Any Person who contracts with Ni-Da;

1.3          “Contract” – means the terms and conditions hereof whether agreed to in writing or orally between Ni-Da and the Customer;

1.4          “Dangerous Goods” – means Hazardous Goods as defined in the Regulations to the Hazardous Substance Act 15 of 1973 as well as any other goods which Ni-Da in its sole discretion may deem Hazardous or dangerous;

1.5          “Goods” – shall mean any Goods which are transported in terms hereof;

1.6          “Person” – shall have its ordinary meaning and includes a “body corporate”;

1.7          “Law” – includes the Common Law, Stature, Ordinance, By-Laws or Regulations;

1.8          “Sub-Contractor” – shall mean any Person with whom Ni-Da sub-contracts to carry out transportation in terms of Contract;

1.9          “Transportation” – shall mean, without restricting the generality of this term, conveyance, packing (when necessary), storing and/or safekeeping of any goods and acquiring of permits, authority/ies and the like.

 

2                APPLICABILITY OF THESE CONDITIONS       

2.1          The terms and conditions of this agreement will be read in conjunction with Ni-Da’s credit application and together with any addendum thereto which shall govern the relationship between Ni-Da and the Customer in each and every contract between them, including contracts entered into subsequently to the contract formed by the Customer’s acceptance of Ni-Da`s quotation and whether or not the Customer’s attention has been specifically drawn to these conditions as being applicable to the Contract governing their relationship;

2.2          The contract for transportation may be carried out by Ni-Da itself, acting as principal, or on its behalf by any Sub-contractor appointed by it, which event, Ni-Da shall act as agent only and the Sub-Contractor as principal, and the contract shall be subject to the Sub-Contractor’s terms and conditions of trading. In the event of the Sub-Contractor’s standard terms and conditions not being available, then Ni-Da`s standard terms and conditions shall mutatis mutandis apply on behalf of the Sub-Contractor. In the event of a conflict between the standard conditions of trading of Ni-Da and those of the Sub-Contractor, Ni-Da`s standard conditions of trading shall prevail;

2.3          No warranty or representation other than as is herein expressly contained shall be of any force and effect against Ni-Da unless the same is contained in writing and signed for and on behalf of Ni-Da;

2.4          No amendments, variation or consensual cancellation of any Contract shall be of any force and effect unless such amendment, variation and/or consensual cancellation is reduced to writing and signed by Ni-Da.

 

3                WHOLE CONTRACT

No course or conduct other than agreement in writing signed by Ni-Da shall constitute a variation or novation of a Contract or a waver or estoppel of Ni-Da`s rights there under.

 

4                CONDITIONS

Ni-Da shall only be obliged to perform provided that:

4.1          Ni-Da in its sole opinion has received sufficient notice and information of the Customer’s requirements to enable it to properly carry out the Transportation and ensure that a suitable and appropriate vehicle is available;

4.2          The necessary consents and statutory permits have been granted and remain in force (in the event of such consents or permits being refused or withdrawn for any reason whatsoever such that no carriage whatsoever may be preformed, the Contract shall terminate and no liability therefore for damages or otherwise shall attach to Ni-Da);

4.3          The Customer is not in breach of any terms or conditions of this Contract or any other Contract concluded with Ni-Da;

4.4          Ni-Da is satisfied as to the Customer’s solvency and ability and readiness to pay for the services to be rendered in terms of a contract within the time and in the manner therein prescribed;

4.5          It is not impossible, impractical or dangerous for Ni-Da to comply with its obligations as a result of riots, strikes, lockouts, labour disturbances or disputes, boycotts, economic sanctions, acts of State, Industrial legislation, war, terrorism, civil commotion or disturbances, attacks upon its employees or vehicles, floods, rationing or non-availability of fuel, vehicle accident, breakdown in vehicle or equipment, commercial exigencies, or any other cause whatsoever beyond its reasonable control.

 

5                SUSPENSION OF PERFORMANCE

While any of the conditions referred to in clause 4 remain unfulfilled, Ni-Da shall be entitled to refuse or suspend performance without being liable in any manner whatsoever therefore to the Customer or any person whatsoever, and prejudice to Ni-Da`s rights to recover monies then due to it in respect of services already performed by it.

 

6                LIABILTY

6.1          Ni-Da shall not be liable to the Customer, owner of the Goods or any Person whatsoever for any loss and/or damages of any nature whatsoever (including consequential loss and/or damage) howsoever cased which the person aforesaid may suffer as a result of the performance of such services by the Sub-Contractor and/or Ni-Da and/or its employees and/or agents notwithstanding that such loss and/or damage may have been caused by the negligence of the Sub-Contractor and/or its employees and/or agents or by breach of contract by Ni-Da and/or the Sub-Contractor.

6.2          The Customer indemnifies Ni-Da and/or Subcontractor against any claim by itself to other persons in respect of liability hereby excluded, it being expressly acknowledged that the Goods are carried at the Customer’s risk.

 

7                CUSTOMER’S WARRANTIES AND INDEMNITIES

7.1          The customer warrants and represents that:

7.1.1          The Goods are the Customer’s sole and exclusive property and/or that the Customer has the full and absolute authority of the persons owning or interested in the Goods to enter into a Contract;

7.1.2          The carriage of the Goods as contracted for with Ni-Da does not contravene any Law;

7.1.3          No Dangerous Goods shall be tendered to Ni-Da for placing with it and/or the Sub-Contractor without Ni-Da’s express consent in writing that it has disclosed to Ni-Da all material information pertaining to Transportation and which may affect Ni-Da’s decision in agreeing to transport the Goods for and on behalf of the Customer;

7.2          The Customer hereby indemnifies Ni-Da against all liability and any claims whatsoever by any Person whatsoever for:

7.2.1          Any loss or damage to Goods or persons or life from whatsoever cause and for non-delivery and/or mis-delivery on grounds of breach of contract and/or negligence;

7.2.2          Any liability for loss or damage on grounds of breach of contract and/or negligence howsoever arising;

7.2.3          Any loss or damages arising from loss of market or attributable to delay in forwarding or in transit or failure to carry out fully or in part thereof any instructions given to it for any other consequential loss howsoever arising;

7.2.4          All legal costs incurred by Ni-Da in resisting any such claims, such costs to be determined on the scale as between attorney and one/s own client;

7.3          The Customer warrants the accuracy, without exception, of all information and specifications given by or on its behalf to Ni-Da;

7.4          Except where Ni-Da is instructed in writing to pack the Goods, the Customer warrants that all Goods have been properly and sufficiently packed and/or prepared.

 

8                PERSCRIPTION OF CLAIMS

Without limiting and without prejudicing the provisions of these conditions (and in particular clauses 6 and 7) the Customer shall notify Ni-Da of any loss, damage, complaint or claim within 24 (twenty-four) hours from the time of off-loading, or in the case of late delivery or non-delivery of the goods within 24 (twenty-four) hours from the scheduled time of off-loading and shall confirm such notification in writing to be received by Ni-Da within 72 (seventy-two) hours of such off-loading or scheduled time of off-loading, as the case may be, failing which, any claim arising therefrom shall ipso facto lapse and be unenforceable.

 

9                PAYMENT WITHOUT DEDUCTION

Notwithstanding any such notification of claim as set forth in this agreement, the Customer shall pay to Ni-Da the full amount stated on Ni-Da’s invoice on due date without any deduction or set-off and without prejudice to the Customer’s rights contended for against Ni-Da in respect of any such claim the Customer shall not be entitled to deduct or set off any monies which it owes to Ni-Da against any monies which it contends are due to it by either Ni-Da and/or the Sub-Contractor.

 

10             ABNORMAL LOADS

The carriage of goods on behalf of the Customer constituting abnormal loads shall be subject to the following special terms and conditions:

10.1       Adequate notice shall be give to Ni-Da to enable it to prepare drawings of such loads, route surveys and local authority clearances and to submit these items to the Provincial   and/or Local authority (and where applicable to Escom and the Post Office Authorities) for their respective consents;

10.2       The Customer shall bear the costs of obtaining the consents from the above authorities, removing and replacing any obstacles during loading, off-loading or en route, raising and reinstating overhead wires, switching the electric power off and on, traffic escorts required and pavement and obstruction fees levied by the authorities concerned, and any other additional services incidental to and necessary for the carriage of such loads where such costs have not been included in the freight quoted by Ni-Da;

10.3       The hours and speed of such Transportation are subject to regulation by authorities concerned;

10.4       Ni-Da shall not (without limiting the generality of the provisions of clause 6 and 7) be liable any damages to any property whatsoever caused by the passage of such loads over or through such property and the Customer hereby indemnifies Ni-Da against all liability and claims whatsoever by any Person whatsoever for:

10.4.1       Any such damages to such property and for any consequential loss or damage arising there from;

10.4.2       All legal costs incurred by Ni-Da in resisting any such claims as calculated on the scale as between attorney and one’s own client.

 

11             STIPULATION OF THE BENEFIT OF NATRO

The stipulations contained in clause 6, 7 and 10.4 are for the benefit of Ni-Da and of any person for whose acts and/or omissions Ni-Da is or may be in law liable and of any Person who may perform any of Ni-Da ‘s obligations there under.

 

12             VALIDITY OF QUOTAIONS

Quotations shall remain open for acceptance by the Customer for a period of 30 (thirty) days from the date thereof, (which acceptance shall be communicated in writing to Ni-Da), and if not accepted during such period, shall automatically lapse.

 

13             QUOTATION DATA

All quotations are subject to the conditions contained herein. Quotations are based, inter alia, on quantities, densities, dimensions, mass properties, other technical data, available loading and off-loading hours and other information supplied by the Customer and is accepted by Ni-Da in good faith under representation by the Customer. Any variance there from shall entitle Ni-Da to require the freight quoted to be adjusted to take into account such variance, or to suspend performance, or cancel the Contract, without thereby incurring any liability whatsoever and in the event of any such cancellation reserving to itself the right to claim form the Customer such damages as Ni-Da may have suffered Quotations are subject to:

13.1       Work being carried out by the methods and the route to be decided by Ni-Da without interruption, hindrance or postponement;

13.2       The availability of Ni-Da’s vehicles and/or staff on the dates required;

13.3       All part loads being conveyed and delivered at Ni-Da’s convenience;

13.4       Any increase in Ni-Da’s costs coming into force after the date of the quotation over   which Ni-Da has no control will be for the Customer’s account;

13.5       Any delay due to interruption, hindrance, local traffic, municipal regulation or non-production of necessary licenses, permits or customer forms which will be charged to the Customer;

13.6       Where the volumes, quantities or scopes of work have increased over what have been quoted for, the Customer for any additions on a pro rata basis;

13.7       A charge increase should there be a change of route due to reasons beyond Ni-Da’s control;

13.8       Any postponement or cancellation by the Customer entitles Ni-Da to make a charge to cover the expenses incurred and/or losses to Ni-Da arising there from;

13.9       Ni-Da shall the right to increase the charge specified in the event of stoppages or delays in the carrying out of the work to which the Contract relates provided that such stoppages or delays are caused by circumstance beyond the control of Ni-Da or are such that Ni-Da could not reasonably foresee or prevent the cause of such stoppages or delays arising.

 

14             FREIGHT

The freight payable to Ni-Da by the Customer for Transportation of Goods shall be the freight agreed between Ni-Da and the Customer or shall be calculated on the rate agreed between them, as the case may be. The Freight shall be subject to variation as provided for in clause 10, 13, 15 and 16.

 

15             ESCALATION

Subject to paragraph 13 and provided Ni-Da performs within 30 (thirty) days of date of quotation, the Freight quoted in such quotation shall remain fixed. If however Ni-Da performs after such 30 (thirty) day period the Freight quoted shall be subject to escalation in accordance with the SEIFSA index of Road Freight Costs as at the date of performance by Ni-Da, the base index being that prevailing at date of quotation.

 

16             ADDITIONAL CHARGES

Subject to paragraph 13 above, and in addition to the freight, Ni-Da shall be entitled to levy and additional charge at its usual rate, alternatively reasonable rate, in the event of:

16.1       The circumstances envisaged in clause 22, 23, 24, 28, 29, 30 and 31 occurring or;

16.2       The time taken to load or off-load a vehicle exceeding maximum time allowed in terms of clauses 23 and 24 or;

16.3       Loading and off-loading taking place at more than one point or;

16.4       Ni-Da being obliged, due to circumstances beyond its control, to utilize routes different from those intended by it at the time of entering into the Contract.

 

17             PAYMENT

Subject to paragraph 9 above, payment shall be received in full, free of any commission, exchange, brokerage, deduction or set-off, within 30 (thirty) days from date of statement by Ni-Da which may appropriate all monies paid entirely within its sole and unfettered discretion. The Customer shall not be entitled to deduct from or set-off against such payments any claims which the Customer may have against Ni-Da arising form any cause whatsoever. Notwithstanding that Ni-Da may agree to collect and/or receive payment from a third party, the Customer hereby acknowledges that the Customer is personally bound by the provisions of the Contract , and the Customer hereby guarantees payment of the freight and other charges by such third party to Ni-Da. There will be no valid discharge of the obligation to pay Ni-Da by the Customer unless payment has been made to Ni-Da and to no other Person whomsoever, Ni-Da is entitled to levy an interest charge against the Customer at the rate of 2% (two per centum) per month on all amounts which are outstanding and are unpaid by the Customer.

 

18             LOADING AND OFF-LOADING

Where the Customer is not the consignor and /or consignee, the consignor and/or consignee and their servants and agents shall be deemed to be agents of the Customer and to be authorized to act on the Customer’s behalf in the situations contemplated in clauses 20 to 28 inclusive.

 

19             CONDITIONS OF GOODS

The onus of establishing the condition of the Goods at the time of delivery to Ni-Da shall at all times remain on the Customer, and on delivery note, receipt, or other document given at such time by Ni-Da to the consignor shall constitute proof of such conditions, save to the extent that any specific record in relation thereto may have been thereon by Ni-Da.

 

20             RESPONSIBILITY FOR LOADING AND OFF-LOADING

20.1       The Customer shall deliver the Goods onto the vehicle nominated by Ni-Da and/or the Sub-Contractor and shall take delivery therefrom, and shall by fully responsible for the loading and off-loading thereof.

20.2       Ni-Da and/or the Sub-contractor shall not be responsible for any loss or damage arising from the loading and off-loading thereof.

20.3       Ni-Da and/or the Sub-Contractor shall not be responsible for any loss or damage arising from the loading and off-loading of the vehicles and the Customer indemnifies Ni-Da and/or the Sub-Contractor against any claims which may be brought against Ni-Da and/or the Sub-Contractor arising out of such loading, off-loading, overloading, unsafe loading or out of the nature of any defect in the Goods concerned.

20.4       Ni-Da employees may assist with the loading and off-loading where such assistance is customary and practicable, and where contracted for, but such assistance shall be rendered at the sole risk of the Customer without any liability for any loss or damage arising there from attaching to Ni-Da and/or Sub-Contractor.

 

21             LOADING AND OFF LOADING FACILITIES

21.1       The customer undertakes:

21.1.1       To provide or procure the provision of safe and adequate labour and equipment for loading and off-loading points and access to any such loading and off-loading points;

21.1.2       To ensure that loading and off-loading will be possible at the agreed points during such hours an days as the parties have agreed;

21.1.3       To ensure that Ni-Da or the Sub-Contractor’s vehicles suitably clean for the purpose of receiving and conveying the goods before the loading of Goods in the contracted vehicle/s is commenced;

21.1.4       To ensure that all goods loaded shall be in such condition as to enable due off-loading to be freely effected at the point of destination of such loading;

21.1.5       To ensure that the Goods are off-loaded into the correct tank, vessel or container store or warehouse, as the case may be;

21.2       The customer warrants that if any Goods require special appliances for loading or off-loading of the vehicles, those appliances will be available at the point of collection or place of delivery of the consignment at the customer’s expense.

 

22.            DELAYS AND DAMAGES

22.1         In the event of a vehicle being delayed or damaged due to the Customer’s failure to                                  comply with the provisions of clauses 20 and 21, the Customer shall be liable for additional charges at Ni-Da’s usual rates, alternatively reasonable rates, and/or such damages as the case may be.

22.2         In the event of any damage whatsoever being caused to Ni-Da’s vehicle/s whilst the customer shall be liable for the fair and reasonable costs or repairing the damages sustained to Ni-Da’s vehicle/s and restoring the vehicle/s to the condition if/they was/were in prior to the damages sustained by it;

22.3         The Customer shall be responsible for and shall compensate Ni-Da in respect of all or any damage sustained by it to any of its vehicles, should any of its vehicles or any portion thereof, or any of Ni-Da’s equipment be damaged while such vehicles are on, or in the process of entering upon, or leaving any loading or off-loading sites, howsoever such damage is caused, whether as a result of loading, off-loading or whether as a result of the sites not being in a proper or good state of repair and/or whether such damage occurs because such sites are not level and clear. The Customer shall be liable for such damage, whether same is direct, indirect or consequential. Similarly, should any of Ni-Da’s vehicles and/or any portion thereof and/or its equipment be damaged while such vehicles are in transit through any other fault of the customer and/or its servants or agents, and whether as a result of loading or other wise or whether as a result of load itself, the Customer shall be responsible and shall compensate Ni-Da for any such damage, whether the same be direct, indirect or consequential.

 

23             LOADING TIME

The maximum loading time allowed to the Customer shall be 2 hours or as stipulated on the quotation unless otherwise agreed to in writing by Ni-Da. Loading time shall be deemed to commence at the time when the vehicle to be loaded arrives at the entrance to the property on which the loading point is situated.

 

24             OFF LOADING TIME

The provision of clause 23 shall apply mutatis mutandis to off-loading time.

 

25             DELIVERY DETAILS

After completion of loading, the Customer shall verify the correctness of all the details contained in the Customer’s delivery documents.

 

26             DELIVERY AND OFF-LOADING INSTRUCTIONS

The customer shall ensure, prior to the Goods being off-loaded, that the Goods to be off-loaded are precise Goods which are contracted to be off-loaded, that during off-loading clear and precise off-loading and delivery instructions are given, that the goods are off-loaded at the correct place and/off off-loading point, and that immediately after off-loading the Goods off-loaded comprise the correct quantity and are in good order and condition.

 

27             COMPLETION OF OFF-LOADING

27.1         When off-loading is completed the customer shall inspect the vehicle/s, as the case may be, to verify that the complete consignment has been off-loaded;

27.2         Goods left on Ni-Da’s or the Sub-contractor’s vehicle/s for any reason to suit the convenience of the Customer or the consignee, are held at the sole risk of the Customer or the consignee, as the case may be. Pending forwarding and delivery, goods may be warehoused or otherwise held at any place/s at the sole discretion of Ni-Da or the Sub-contractor, at the Customer’s risk and expense.

 

28             FAILURE BY THE CUSTOMER TO TAKE DELIVERY

Should the customer fail or neglect or be unable or refuse to take delivery of the whole or any part of the Goods at the agreed off-loading point or at the agreed off-loading time, or should (through no fault to Ni-Da) it not be possible or practicable to off-load the Goods within the prescribed time set out in 23 above and should no acceptable alternative delivery instruction be received from the Customer, Ni-Da shall be entitled to store or abandon the goods at its discretion. In such event the Customer shall be Liable to pay any additional charges thereby incurred and shall have no claim whatsoever against Ni-Da for any act or omission arising there from.

 

29             DEMURRAGE

Ni-Da shall not be liable for demurrage or storage charges of any nature, howsoever arising, levied by third parties, and where paid by Ni-Da shall be refunded to Ni-Da by the Customer on demand. The Customer does hereby appoint Ni-Da irrevocably and in rem suam as its agent in its place and stead to contract for the storage of such Goods upon such terms and such conditions as Ni-Da may, it its discretion, elect and without any liability whatsoever attaching to Ni-Da to attends to such storage.

 

30             DANGEROUS GOODS

30.1         Ni-Da is not obliged to contract for the carrying of dangerous goods on behalf of its Customers.

30.2         In the event of Ni-Da agreeing in writing to place with the Sub-Contractor the Customer’s Dangerous Goods, the Customer shall:

30.2.1       Disclose fully the nature and properties of such goods to Ni-Da.

30.2.2       Prior to loading, give Ni-Da special detailed instructions to enable Ni-Da to place such Goods for the proper safety and handling;

30.2.3       Comply with all regulations governing the loading, off-loading, storing and carriage of such goods.

30.3         In the event of the Customer or consignor failing to disclose the dangerous nature of any /goods, or in the event of any goods becoming a danger to persons or property, whether the dangerous nature thereof has been disclosed or not. Ni-Da shall be entitled immediately, and without prior notice to the Customer, to discharge or dispose of any such Goods, in any manner, and Ni-Da shall not be liable for any loss or damage arising form such discharge or disposal whatsoever. Ni-Da shall furthermore be entitled to recover from the customer the Freight in respect if any such carriage, notwithstanding the non-delivery of such Goods, together with any expenses incurred in discharging or disposing thereof;

30.4         The Customer:

30.4.1       Shall be liable for all loss and/or damages suffered by Ni-Da or any other Person/s howsoever cased by Dangerous Goods whether the dangerous nature thereof has been disclosed or not.

30.4.2       Hereby indemnifies Ni-Da against all liability and all claims by a Person/s whomsoever arising from such loss and/or damage.

 

31             CANCELLATION OF RQUEST FOR VEHICLE

The customer shall be entitled to cancel a request for a vehicle to carry out a particular service in terms of a Contract, provided that the customer gives Ni-Da not less than 48 (forty-eight) hours notice of cancellation(Saturdays, Sundays and Public holidays excluded.), prior to the time of dispatch of the vehicle scheduled by Ni-Da, failing which the Customer shall be liable to pay Ni-Da usual, alternatively reasonable additional charges up to a maximum period of 48 (forty-eight) hours.

 

32             PROTECTION OF CLIENT RELATIONSHIP

It is material term of this agreement that as the carrier is dealing with the clients and customers of Ni-Da, the carrier agrees to be bound as follows:

32.1        That the carrier may and will not directly or indirectly or in any other way contact, approach or cause to be approached, intervene or elicit any transport business or cartage of any nature form any and all clients and customers of Ni-Da for a period of 3 years from date hereof, either or individually or as manager, employee, consultant, advisor or assistant of any other person, company, closed corporation or other legal entity. Clients and customers will be defined as debtors, debtor’s cards being deficient proof thereof. With regards to the area and scope of limitation, as well as period of limitation, it is expressly agreed that this clause is fair and reasonable and severable if necessary.

 

33             BREACH OF CONTRACT BY NI-DA

Should Ni-Da breach any terms or conditions of a Contract, the Customer shall give Ni-Da a written notice to remedy such breach within 7 (seven) days of receipt thereof, and only in the event of Ni-Da failing to comply therewith, shall the Customer be entitled to cancel the Contract on written notice to Ni-Da.

 

34             DUTIES AND TAXES

The Customer and Consignee shall be liable for any duty, tax, imports or outlays of whatsoever nature levied by the authorities at any post or place for or in connection with the Goods, and for any payments, fines, expenses, loss or damage incurred or sustained by Ni-Da or the Sub-contractor in connection therewith.

 

35             LIEN

35.1         Ni-Da shall have a lien over all Goods as security for all monies owing;

35.2      In addition, Ni-Da shall be entitled to hold all Goods as security for any monies which have been due and payable to it by the customer from any cause whatsoever.

35.3      If any monies owing are not paid within 30 (thirty) days after they become due, Ni-Da shall be entitled without further notice to the Customer:

35.3.1                                          To open and examine any part of consignment

35.3.2     To hold any part of the consignment in such manner and upon such terms and conditions as it deems fit

35.3.3     To sell the goods over which Ni-Da has lien, and to apply the proceeds of any such sale after deducting all expenses thereof in payment or deduction of any amount due by the customer to Ni-Da, provided any surplus is to be paid over to the Customer, without interest, as soon as possible after the sale if the Customer’s address is known, of if not; upon demand by the Customer;

35.4         Upon payment or tender of the proceeds of any such sale, Ni-Da shall be released from all liability to the Customer in respect of the Goods.

 

 

36             GENERAL

36.1         Ni-Da may cede, delegate and/ or assign and/or sub-contract any or all of its rights and/or obligations under a Contract;

36.2         These conditions shall apply to any other additional work and/or transport carried out for and on behalf of the Customer, whether or not the Customer’s attention has been specifically drawn to these terms and conditions as being applicable to the contract governing the relationship. It shall therefore be construed that the customer has agreed that all terms and conditions herein contained shall apply to all future and/or additional transport work carried out of and on behalf of the customer by Ni-Da and/or the Sub-Contractor.

36.3         Ni-Da shall be entitled at any time, by notice to the customer, to cancel or resile from any quotation or executory agreement in circumstances where it becomes impracticable or uneconomical for Ni-Da to carry out the contract, and the Customer shall have no claim whatsoever against Ni-Da for any loss the Customer might incur as a result of Ni-Da cancellation.

36.4         The parties hereby consent to the jurisdiction of any Magistrate’s court having jurisdiction over the Customer should Ni-Da in its sole and unfettered discretion elect to institute any action arising out of a Contract against the Customer in such court, notwithstanding that Ni-Da claim may exceed the ordinary jurisdiction of such court;

36.5         All contracts shall be interpreted and governed by the Laws of the Republic of South Africa in their entirety. This contract shall be deemed to have been entered into the Republic of South Africa.

36.6         The head notes to the various clauses contained in these conditions are for reference purposes only and do not affect the interpretation of the individual clause.

36.7         Each of the terms hereof is severable from the rest of the terms contained herein which terms shall remain of full force and effect, should any one term be found to be invalid for any reason. Or, without limiting the generality hereof, contra bona mores.

36.8         No act, omission, course of dealing, forbearance, delay or indulgence by Ni-Da in enforcing any of these conditions or any of its rights in terms thereof, or any granting of time by Ni-Da, shall prejudice or affect the rights and remedies of Ni-Da under these conditions and no such matter shall be treated as any evidence of waiver of any subsequent breach thereof, or as estoppel against it. Ni-Da shall at all times, and without notice be entitled to insist on strict application of these conditions and on their strict enforcement thereof by the Customer;

36.9         The Customer selects as its domicillium citandi et executandi for all purposes hereunder at its place of business as reflected on its invoices, delivery notes and letterheads;

36.10      Ni-Da selects as its domicillium citandi et executandi the address that appears on the face thereof.