Updated January 01, 2020
TERMS AND CONDITIONS
In this Agreement:
1.1. the headings to the clauses are for reference purposes;
1.2. unless the context clearly indicates a contrary intention, words importing anyone gender include the others, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporate) and vice versa;
1.3. any list shall not be deemed to be exhaustive unless specifically indicated as such;
1.4. the terms of this Agreement, having been negotiated, shall not be interpreted against the Party who procured its preparation and drafting, nor shall exclusion clauses contained in this Agreement be construed against the Party relying on same;
1.5. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have a corresponding meaning namely:
1.5.1. “Agreement” means this agreement for the provision of the Services by Alistair to the Client and includes the: Quote, Job Confirmation and the Schedules containing service line specific provisions (as may be applicable) attached hereto;
1.5.2. “Alistair” means the Group affiliate with whom the Client contracted to provide the Services as set out in the Quote;
1.5.3. “Authority” means any duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport to which this Agreement and/or the Services may be subject;
1.5.4. “Container” means any container, transportable tank, flat pallet, flat rack, package or any other form of covering or packaging in which the Goods are to be transferred or stored;
1.5.5. “Client” means the customer as identified in the Quote;
1.5.6. “Dangerous Goods” means Goods that are or may become of a dangerous, inflammable, radioactive or damaging nature, Goods liable to taint or affect other goods and Goods likely to harbour or encourage vermin or other pests and includes asbestos, fuels, oil, explosives, carcinogens and/or any other good which comply with the given definition;
1.5.7. “Equipment” means the rental or material handling equipment as set out in the Quote;
1.5.8. “Goods” means any goods handled, transported, stored or otherwise dealt with by Alistair, or which come under control of Alistair or its agents, servants or nominees on the Instructions of the Client;
1.5.9. “Group” means the group of companies under common ownership with Alistair;
1.5.10. “Instructions” means any requests by the Client that are accepted by Alistair by written confirmation or contained in the Quote;
1.5.11. “Loading Location” means the location where Alistair will take physical possession of the Goods as indicated in the Job Confirmation;
1.5.12. “Normal Working Times” means an 8 (eight) hour shift on any day of the week excluding Sundays and gazetted public holidays;
1.5.13. “Off-Loading Location” means the location where the Goods are to be delivered as indicated in the Job Confirmation;
1.5.14. “Order” means the Client’s request for Services using its own format (including any Client agreement or terms);
1.5.15. “Quote” means the quote issued by Alistair to the Client for acceptance to which these contractual terms are attached;
1.5.16. “Rates” means the amount payable by the Client to Alistair as compensation for the provision of the Services and more specifically as set out in the Job Confirmation read along with the provisions herein;
1.5.17. “Services” means either Road Freight, Customs Clearance, Material Handling or Warehousing Services (or any combination of the aforementioned) as indicated in the Job Confirmation;
1.5.18. “Transport Unit” means any of the following individually as required by the context: Containers, trailers, flats, tilts, railway wagons, tanks, igloos or any other unit load devices specifically constructed for the carriage of Goods by land, sea or air; and
1.5.19. “USD” United States Dollar.
2.1. Upon acceptance of the Quote, the Client appoints Alistair to provide the Services subject to the contractual provisions contained in this Agreement and Alistair accepts such appointment. Alistair shall not be liable to provide any Services without an issued Job Confirmation.
2.2. This Agreement commences upon the acceptance of the Quote and shall continue until terminated in terms of clause 15 below.
2.3. The Client acknowledges that:-
2.3.1. Alistair is neither a common nor public carrier;
2.3.2. Alistair can in its sole discretion refuse to provide any Services or refuse to accept any request/instruction; and
2.3.3. the commencement of Services are subject to capacity or availability, Alistair shall not be liable to commence Services unless its equipment/facilities are available.
3. Application and Exclusion of Terms
3.1. No Order/Instruction shall have any force or effect unless accepted in writing by a director of Alistair.
3.2. Should any ambiguity or conflict exist between this Agreement and any accepted Order/Instruction, or other agreement between the Parties (subject to clause 3.1 above), then the provisions contained in this Agreement shall prevail.
3.3. The English version of this Agreement shall prevail over any other translation.
4.1. The applicable Rates are as set out in the Quote and based on the information provided by the Client.
4.2. Unless expressly stated otherwise, these Rates exclude any duties, taxes, imposts, levies, deposits, surcharges or outlays (hereinafter “Costs”) of whatsoever nature, incurred or payable in connection with the Services, regardless of the cause of payment.
4.3. The Costs may only be known after they are incurred or after performance of the Services and accordingly any stated Costs are estimates only and are not binding.
4.4. Any disbursements made on behalf of the Client may attract a 10% (ten percent) management fee.
4.5. Alistair reserves the right to invoice, in addition to the Rates, any additional actual Costs; and should the information provided by the Client prove inaccurate, the quoted margins over and above additional Costs and Rates incurred as a result thereof.
4.6. All quotations and invoices in a currency other than USD are calculated using the exchange rate of the day of the Quote. Should the exchange rate fluctuate by of 5% or more, then Alistair may at its election amend the invoice or submit a second invoice for the difference in amounts (if payment was already made).
4.7. Rates may be subject to proportionate revision upon notice in the event of increases to costs to provide the Services resulting from fuel, insurance premiums, labour or any costs applicable to the Goods.
4.8. All Rates are based on fair labour practices and any work performed excess of Normal Working Times will be charged in terms of the applicable labour legislation.
5. Invoicing and Payments
5.1. Payment terms are as identified in the Quote and Job Confirmation. In the absence of any express terms therein, the Rates shall be due and payable in advance upon acceptance of the Quote. Alistair shall not be obliged to commence any Services (nor any preparation in terms thereof) unless payment has been received in full.
5.2. All payments by the Client shall be made free from deduction, set-off and / or withholding (save for legitimate tax purposes), in USD, by direct bank transfers to the account specified by Alistair referencing the Job Confirmation number.
5.3. Alistair shall have the right, in its discretion, to set-off or apply payments received by the Client to any debts owing by the Client (or any affiliate of the Client) to any member of the Group, regardless of the nature, chronological order or cause of the debt.
5.4. If the Client defaults on any due payments, or circumstances arise that causes Alistair to question the Client’s ability or willingness to compensate Alistair, then Alistair shall have the right to cease the provision of any Services, and to request advance payments or security for any debts before completing the Services. Failure to provide such security shall entitle Alistair to dispose / drop off Goods anywhere at any time.
5.5. Alistair shall be entitled to charge interest, which accrues without notice, on any overdue amount at a rate of 3% above the prime interest rate per annum as charged by ABSA (RSA), compounded daily on the basis of a year of 365 days from date due up to date of payment (or the maximum allowable rate under applicable legislation, whichever is higher).
5.6. Invoices, delivery notes, timesheets or the like (as may be applicable) shall only be delivered in soft copy.
6.1. Either Party warrants to the other that:
6.1.1. it will at all relevant times adhere to applicable legislation, rules and regulations;
6.1.2. it (including its subsidiaries, affiliates, directors, officers, agents, employees or other person acting on its behalf), has not:
184.108.40.206. used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
220.127.116.11. made any direct or indirect unlawful payment to any foreign or domestic government official or to a foreign or domestic political parties or campaigns from corporate funds;
18.104.22.168. violated or is in violation of any provision of any applicable law or regulation combating bribery or corruption of any sort in the areas where it operates its business; and / or
22.214.171.124. otherwise made any bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment.
6.2. The Client warrants that:
6.2.1. it is either the owner of the Goods, alternatively the duly appointed agent of the owner of the Goods and accordingly binds itself to this Agreement, alternatively has the necessary authority to bind itself as agent and the owner as principle to this Agreement;
6.2.2. all documents, information and instructions supplied or to be supplied by it to Alistair regarding the Goods, Loading or Off-Loading Locations, special requirement, values, dimensions etc. is and shall be accurate, true and comprehensive;
6.2.3. that it will not withhold any necessary or pertinent information;
6.2.4. except where Alistair is instructed in writing to pack the Goods, the Goods are properly packed, marked, labelled and stowed in a manner suitable to any operations affecting the Goods during the Services;
6.2.5. the Goods are capable of withstanding the normal hazards inherent in providing the Services via the Transport Unit;
6.2.6. if special precautions are required in respect to the Goods (regardless of how obvious such precautions may be), that it has provided sufficient detail thereof to enable Alistair to adequately quote and take the necessary precautions;
6.2.7. where Goods are carried via a Transport Unit, then save where Alistair accepted Instructions to load the Transport Unit:
126.96.36.199. the Transport Unit has been properly and competently loaded;
188.8.131.52. the Goods involved are suitable for carriage in or on the Transport Unit; and
184.108.40.206. the Transport Unit is itself in a suitable condition to carry the Goods loaded therein and complies with the requirements of all relevant transport authorities and carriers.
6.2.8. it shall point out any hazards that may be at site to the safety and benefit of any employees and that Alistair shall not be liable to perform where any hazard at the site proves any risk to the health or safety of any employees without adequate HSSSEQ strategies in place to adequately mitigate against such risks.
6.3. Save for the warranties contained in this clause 6 (or expressly stated as a “warranty” elsewhere in this Agreement), neither Party makes any warranties or representations to each other regarding this Agreement.
8.2.3. be entitled to modify delivery deadlines under this Agreement if such deadlines are not compatible with Alistair’s or carrier’s compliance with road and/or applicable transport safety norms; and
8.2.4. be entitled to enter into any contract it reasonably deems necessary or requisite for the fulfilment of the Instructions and the Client acknowledges that when Alistair, as agent for and on behalf of the Client, concludes any contract with a third party, such agreement is concluded between the Client and the third party.
8.3. If events or circumstances come to the attention of Alistair which, in its opinion, make it in whole or in part, impossible or impracticable to comply with an Instruction, then it shall endeavour to inform the Client and seek further instructions. If such further instructions are not timeously received in writing, then it shall, at its sole discretion, be entitled to detain, return, store, sell, abandon, or destroy all or part of the Goods concerned at the risk and reasonable expense of the Client.
9. Liabilities and Indemnities
9.1. Alistair assumes no risk with regards to the Goods and accordingly, all handling, packing, loading, unloading, warehousing, storage and transporting of Goods are undertaken at the sole risk of the Client, and the Client indemnifies Alistair accordingly (regardless of the cause of loss or damage).
9.2. Upon acceptance of the Quote, the Client warrants that it is fully acquainted with the extent of the Services, the facilities and equipment that will be used by Alistair in discharging its obligations and Alistair shall accordingly not be held liable for any loss or damage suffered by assumptions made by the Client.
9.3. Alistair indemnifies the Client for any death or bodily injury which is as a direct result of its negligence or wilful misconduct during the provision of the Services.
9.4. The Client indemnifies Alistair:
9.4.1. against any and all claims, losses and expenses (including legal) resulting from death or injury to persons where Alistair (including its employees or representatives) is not the direct cause thereof;
9.4.2. against all claims, losses penalties, damages, expenses and fines of whatsoever nature arising as a result of a breach of its warranties;
9.4.3. for any loss or damage that Alistair may suffer as a result of an act or omission by the Client, its agents, representatives, subcontractors or any of its suppliers/service providers;
9.4.4. against any third party claims (including end clients and insurers with subrogated claims).
9.5. The Client undertakes that no claims shall be made against any director, servant or employee of Alistair which imposes or attempts to impose upon him any liability in connection with the Services and it hereby waives and releases them from any such claims.
9.6. Alistair shall bear no liability in consequence of any fluctuations in duty, wharfage, freight, railage, fuel or cartage or any other tariff/cost, before or after the performance by Alistair resulting in less favourable costs incurred than what may have resulted had any act been performed at a different time.
9.7. Save as expressly set out herein, Alistair shall not be liable for any loss or damage of whatsoever nature and arising from whatsoever cause.
9.8. Should Alistair, acting as agent on behalf of the Client, contract with a carrier for the purposes of transport of the Goods by sea, air or rail, it shall in no way carry any liability for any loss or damage incurred as a result from the transport of the Goods by such means, which shall include the loading, handling, stowage, carriage, custody, care and discharge of such Goods.
9.9. Notwithstanding any clause to the contrary, Alistair shall not be liable for indirect, consequential, incidental or special damages, regardless of the cause and includes any loss of market, loss of profits or any other consequential loss howsoever caused.
9.10. The provisions of this clause 9 and 10 shall be applicable save where expressly prohibited or limited by law (and only in so far as prohibited or limited as the case may be) and each clause shall be deemed a separate agreement between the Parties.
10.1. The Client is better able to determine the value of its Goods and the extent of its exposure. Furthermore, it is impractical for Alistair to determine the total extent of risk faced by the Client, especially with regards to any losses of an indirect nature.
10.2. Accordingly the Client shall ensure that it and the owner is adequately insured against the risk of loss or damage that it may suffer under this Agreement and specifically indemnifies Alistair against any such risks.
10.3. If requested by the Client, Alistair shall assist in procuring insurance for any risk of loss or damage under this Agreement, and where sanctioned under local law, Alistair as an intermediary, may take out insurance against such risks as may be identified by the Client at the standard conditions issued by the insurer, and all costs shall be borne by the Client.
10.4. Alistair shall not be held liable for any loss arising from the failure of the insurer to pay in full or in part or because a claim in respect of damage being disputed as a result of the manner in which Alistair effected the contract for insurance.
7. Dangerous Goods:
7.1. Unless otherwise agreed the Client shall not deliver or cause Alistair to deal with or handle Dangerous Goods.
7.2. Whether or not Alistair knowingly deals with Dangerous Goods on the Client’s behalf, and in the opinion of Alistair they at any time constitute a risk to other goods, property, life or health, then without prejudice to any remedies available for the breach of warranty regarding provisions of information discussed above, Alistair may without notice dispose, destroy or otherwise deal therewith as it deems fit, at the Client’s cost.
7.3. If Alistair accepts Dangerous Goods, then the Client shall ensure that such Goods and applicable Containers shall be clearly marked to show the hazardous nature of their contents and labelling shall be in compliance with all applicable rules and regulations.
8. Liberties and Rights of Alistair
8.1. Alistair may at its election:
8.1.1. perform any or all of its obligations itself or it may elect that any member of the Group or any subcontractor performs the obligations.
8.1.2. comply with the orders or recommendations given by any Authority without liability to the Client; and
8.1.3. refuse to perform any Services which in its opinion would be illegal, unethical, a safety hazard or in any manner against public interest.
8.2. Alistair shall:
8.2.1. have an absolute discretion to determine the means, route and procedure to be followed when providing the Services, without derogating therefrom, if at any time Alistair considers it to be in the Client’s interests or for the public good to depart from any of the Instructions, Alistair shall be entitled to do so without prejudice;
8.2.2. use all reasonable endeavours to complete the Services within estimated time frames, the Client however acknowledges that any information pertaining to the status, dimensions, weight, time frames etc. are estimates only and should the Client rely on such estimates, or dashboard information, then it shall do so at its own risk and expense;
10.5. The Client warrants that any insurance policies that it obtains to cover the Goods shall specifically contain a waiver of subrogation against Alistair.
11.1. Neither Party shall publish to any third party the fact of or any information concerning the conclusion of this Agreement, or any information of a sensitive nature, without the consent of the other, which consent shall not be unreasonably withheld.
11.2. Clause 11.1 shall not apply to disclosures made to employees or advisors as may be required for proper performance of its obligations (provided subject to the same confidentiality undertakings), nor for any information in the public domain or requested by an Authority.
12.1. If any one Party is in default of any obligation which arises in terms of this Agreement (the “Defaulting Party”) and such Defaulting Party persists in such failure or default after receipt of a written notice given by the other Party (the “Aggrieved Party”) calling upon the Defaulting Party to remedy such failure or default within a period of 7 (seven) days from receipt of the notice or such further additional period as the Aggrieved Party, in its sole but reasonable discretion may determine, then the Aggrieved Party may, without prejudice to any rights or remedies that it may have in terms hereof or at law, including the right to claim damages and costs, either claim specific performance or terminate this Agreement upon notice.
13. Dispute Resolution:
13.1. Should there be any dispute, disagreement or claim between the Parties (the “Dispute”) concerning or arising out of this Agreement, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other in writing to a meeting to attempt to resolve the Dispute within seven (7) days from date of the written invitation (or such time as may be extended by mutual agreement).
13.2. If no such meeting is held, or if the dispute has not been resolved by such negotiation, then the Party who invited the other under clause 13.1 above may submit the dispute to be finally resolved by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”).
13.3. The arbitration shall be an expedited arbitration, presided over by a single arbitrator (appointed by mutual agreement between the Parties, failing such agreement, by the AFSA itself) with its seat in Sandton, South Africa. Costs shall follow the award.
13.4. The provisions of this clause 13 shall not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an indictment/interdict and/or mandamus pending finalisation of this dispute resolution process for which purpose the Parties irrevocably submit to a division of a High Court with jurisdiction.
14.1. This Agreement shall terminate upon full performance of either Parties’ respective obligations, alternatively, either Party may terminate this Agreement with immediate effect without incurring any liability upon:
14.1.1. the institution of proceedings for any reason for the winding up, bankruptcy, liquidation, placing under administration and/or restructuring of the other Party, or such Party committing any act of insolvency, the appointment of a receiver, administrator liquidator (final or provisional) over the other’s assets and/or affairs; or
14.1.2. any force majeure event in terms of section 16 below continues for a period of (30) thirty consecutive days; or
14.1.3. upon giving 30 (thirty) days’ notice to the other to that effect, unless otherwise limited under the Schedules.
14.2. All outstanding payments shall be accelerated and deemed due and payable immediately upon the termination of this Agreement regardless of the cause.
14.3. Termination of this Agreement shall not affect such of the provisions of this Agreement which, of necessity, must continue to have effect, notwithstanding that the clauses themselves do not expressly provide therefore (including liability, payment terms, confidentiality, warranties and dispute resolution).
14.4. Termination of this Agreement shall be without prejudice to Alistair’s rights to claim compensation for all Services performed and any incidental demobilizations costs incurred in the termination of the Services.
15. Right of Retention, Lien and Pledges on the Goods
15.1. Alistair has a lien and/or a right of retention in respect of the Goods and any documents and funds of the Client that are in its possession as a result of this Agreement. These items may serve as pledge for Alistair against all claims that it may have or may acquire against the Client or any other party with rights to the items.
15.2. Alistair shall not in any circumstances be liable for any loss or damages resulting from the exercise of a pledge, right of retention or lien.
15.3. Until the end of the exercise of the lien or the right of retention, Alistair is entitled to be paid storage rates as may be agreed, or in the absence thereof, at its standard rates for the time being.
15.4. In the event of non-payment of the claim or claims for which such rights under this clause 15 are exercised, Alistair shall be entitled to sell the pledged Goods, documents and funds in the manner prescribed by law, or in the absence of such law, as it deems fit, the proceeds of which shall then be applied towards satisfaction of all outstanding monies, followed by the costs of conducting such sale, and any balance thereafter paid to the Client.
16. Force Majeure:
16.1. Alistair shall not be liable for any loss, damage to or destruction of the Goods, or for any delay in the performance or non-performance under this Agreement due in whole or in part to any cause not within the control of Alistair, including without limitation, to the following:
16.1.1. terrorism, war, threat of war, official action, quarantine, civil disturbance, terrorism and terrorist threats, revolution or the operations of international law, governmental decree, sanctions or other trade restrictions, sabotage, strike, lock-out, interference with communications, and/or cyber-attacks;
16.1.2. storm, fog, lightning, flood, frost, earthquake, unexpected weather phenomena and other acts of God;
16.1.3. subsidence and/or collapse of the ground and/or any storage facility;
16.1.4. inherent vice of the Goods, spontaneous deterioration, self-generated heat, combustion, explosion, drying, mold, yeasts, leaks, rot and mildew, rust and sweating;
16.1.5. wheel puncture, unordinary traffic and/or congestion, or fuel shortages for whatsoever reason;
16.1.6. non-performance of a subcontractor or third party by reason of an event or circumstance that would constitute a force majeure event under this section, including without limitation, bankruptcy, liquidation, business closure, sickness and/or death of key personal of the contractor or third party; and
16.1.7. all other causes which Alistair and/or its subcontractors could reasonably not prevent.
16.2. All additional costs which may be incurred as a result of a force majeure event, including but not limited to carriage and storage charges, warehouse or yard rentals, Rates in respect of transportation of the Goods to another storage area, demurrage for vessels or vehicles, insurance premium, Rates in respect of delivery from warehouses, bonded or otherwise, shall be borne by the Client.
16.3. The Client’s payment obligations arising before the commencement of the force majeure event remain in force despite the force majeure event. Notwithstanding anything to the contrary, the Client shall continue to be liable to Alistair for all Rates and expenses incurred by Alistair arising out of or in connection with any force majeure event, and whether under the Client’s instructions or otherwise, until such time Alistair ceases to provide any of the Services to the Client
17.1. The Parties elects as their chosen address for the services of all notices, the details as set out in the Quote.
17.2. Any notice served shall be deemed to have been delivered on the day on which it was sent if in electronic form, or if by registered post on the third day following the day on which it was posted to the address indicated in 17.1 above and shall be accompanied by an electronic copy being sent via email.
17.3. If any legislation is compulsorily applicable to any business undertaken, this Agreement shall, as regards such business, be read as subject to such legislation and nothing in this Agreement shall be construed as a surrender by Alistair of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these provisions are repugnant to such legislation to any extent such part shall as regards such business be over-ridden to that extent and no further.
17.4. Every variation, cancellation or waiver of this Agreement must be in writing signed by a Director of Alistair. No other person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of this Agreement.
17.5. Failure of Alistair to invoke or enforce compliance with any provisions of the Conditions shall not constitute a waiver by Alistair of its right to insist upon compliance with all other provisions of the Conditions or invoke the respective provision in other circumstances.
Service Specific Terms:
Schedule A: Transport
1.1. All vehicles are invoiced at maximum loading capacity regardless of the actual weight of the load.
1.2. Alistair shall allow initial periods of 24 (twenty four) hours to unload the Goods at the Off-Loading Location and 48 (forty eight) hours within which to complete clearing at destination border. Save only where Alistair’s fault is the sole cause of delays beyond the initial period, the Client will be charged at the following rates per type of vehicle per day as standing charges:
1.2.1. Flatbed (30mt) and Tankers: USD350.00;
1.2.2. Lowbed (up to 60mt) and Boxloader: USD850.00;
1.2.3. Lowbed (60mt – 120mt): USD975.00;
1.2.4. Modular Lowbeds: USD1,590.00;
1.2.5. Vehicles (1mt – 20mt): USD285.00;
1.3. Delivery notes will only be provided in softcopy.
1.4. For purpose of invoicing, the only information that will be taken into account would be that available on the Customer Dashboard.
1.5. Mobilisation and demobilisation charges for transport Services resulting from early termination or cancelled Job Confirmations will be charged at the same Rates per km actually travelled as would’ve been applicable to the Services.
Schedule B: Warehousing
1. Storage of the Goods:
1.1. Storage of the Goods shall start from the time that the Goods are received inside storage facility (provided that they are accepted), on a first come first serve basis.
1.2. If Goods are inspected upon arrival at the storage facility to confirm specifications, and such Goods do not conform to the information provided by the Client, or should the Goods appear to be damaged or contaminated, then Alistair may notify the Client and in its discretion refuse to store the Goods, alternative provide revised Rates.
1.3. Goods can be stored at any facility within the agreed location.
1.4. Rates for warehousing services shall be as contained in the Quote and are based on the customary method of stacking. If any additional work is done whether by request of Client or as a necessity (including additional storage, rebagging, physical inventory or pulling Goods for distribution etc.) then these shall be invoiced in addition.
1.5. Unless expressly stated otherwise, Quotes for bonded storage are based on a fixed storage period according to the applicable legislation, any additional storage will be charged at USD0,7 per tonne per day.
1.6. Should Alistair commence any action on an Instruction, and the Client fails to perform or retracts that Instruction, then Alistair shall be entitled to charge for the work so performed and any work incidental thereto (including restacking Goods).
1.7. The Client acknowledges and accepts that the Goods shall not be stored in a temperature and/or humidity controlled environment.
1.8. Unless otherwise stated in the Quote, Alistair is not obligated to take any specific precautionary measures e.g. surveillance of the facility or storing Goods in a temperature and/or humidity controlled environment.
1.9. If it is ‘Necessary’ in Alistair’s opinion to require the removal of the Goods prior to the expiration of the storage period without adhering to any period of notice, then it shall be entitled to do so without penalty or prejudice to the right to claim proportional payment of the Rates for the period that the Goods are stored.
1.10. “Necessary” includes contractual default by the Client; if the Goods are perishable or susceptible to inherent changes which could result in a decrease in value and / or if the Goods possess any threat to other goods, the premises, equipment or person.
1.11. Upon request, access to the stored goods will be granted to the Client during normal working hours provided that the Client undertakes to comply with all Alistair’s procedures and safety requirements.
2. Warehouse Receipts:
2.1. If Warehouse receipts (“Receipts”) are issued after inspection, such Receipts merely confirms that Goods are received and provides a first glance status of the Goods.
2.2. While Alistair undertakes to provide Services in a diligent manner, it is the sole responsibility of the Client to confirm the accuracy of the Receipts or notify Alistair of any suspected discrepancies. Alistair assumes no responsibility for loss or damage resulting from relying on erroneous information on a receipt.
2.3. No Receipt shall be valid unless signed by authorised signatory of Alistair.
2.4. Any copy, photocopy or scanned copy of a Receipt or any Receipt that appears to have been amended or any in manner tempered with shall be deemed null and void.
2.5. Transfer of the Receipt by the Client to a third party shall be recognised by Alistair in its sole discretion and only if Alistair has no claims against the Client.
2.6. Receipts shall not be deemed to denote or confer any legal title to the Goods and Alistair will not recognize any party as having legal and beneficial title to the Goods by reason of any mode of transfer and/or endorsement on the Receipt.
2.7. Alistair is entitled to deny the release of any Goods unless it has received the duly endorsed original Receipt from the last named party on the receipt. In order for Alistair to recognize such third party’s right of possession to the Goods, any endorsement must be in conformance with conditions stipulated by Alistair.
2.8. Lost or damaged Receipts shall be nullified and reissued provided that the Client submit an application stetting out cause of the loss/damage (including where applicable, enclosing a copy of the police report in relation to such loss). Alistair shall not entertain applications from third parties, unless such parties are expressly authorised by the Client.
2.9. Alistair shall, upon receiving USD1.00, endeavour to verify the authenticity of a Receipt, but does not warrant or make any representation or assume any responsibility for the validity authenticity of the Receipt or endorsement, if any.
2.10. Alistair has no means to know and makes no representation as to the legal ownership of- or any encumbrances on the Goods.
2.11. Furthermore, the validity of any authentication shall expire and Alistair shall not assume any responsibility or liability in respect of the authenticity of the Receipt as soon as it leaves Alistair’s possession.
Schedule C: Material Handling and Equipment Rental:
1. Commencement and Duration:
1.1. The hiring of any Equipment is deemed to start from the moment that the Equipment is dispatched to the relevant delivery address and shall endure for the period set out in the Quote.
1.2. The hiring of any Equipment is deemed to terminate at the date the asset is returned to Alistair’s premises in Good Condition.
1.3. “Good Condition” is deemed to be such that the Equipment is in the same or similar condition as at the date of commencement, less such normal wear and tear which shall be decided at Alistair’s sole discretion.
1.4. The rental period may be extended by mutual written agreement of both Parties.
1.5. The Rates shall continue to accrue until Alistair obtains possession of the Equipment, save only where Alistair delays retaining such possession.
1.6. Premature termination of this Agreement shall accelerate payments for the entire contracted period.
2. Delivery, Ownership and Risk:
2.1. Alistair shall deliver the Equipment to the location agreed to in writing between the Parties and the Client shall acknowledge receipt of the Equipment by way of a written confirmation at the time of delivery or collection.
2.2. The Equipment shall at all times remain the property of Alistair, and the Client shall have no right, title or interest in or to the Equipment, except that of the right to possess and use the Equipment, where permitted and subject to this Agreement.
2.3. The risk of loss, theft, damage or destruction of the Equipment shall pass to the Client upon delivery. The Equipment shall remain at the sole risk of the Client during the rental period and any further term during which the Equipment is in the possession, custody or control of the Client until such time as the Equipment is returned to Alistair.
2.4. Alistair warrants that at the time of delivery the Equipment will be in an operational condition. If the Equipment delivered is not in an operational condition the Client shall immediately notify Alistair, who has the right to replace or to repair the Equipment. If Alistair has not received any such notification within two working days after delivery of the Equipment, it shall be regarded as faultless on delivery. This provision shall apply mutatis mutandis to any Equipment returned after being repaired by Alistair.
3.1. Any operator supplied to the Client has the right to refuse any instruction if, in the operator’s or Alistair’s opinion, performance thereof would result in an action that would be (i) unlawful or contrary to manufacturer or Authorities’ rules or regulations, or (ii) dangerous to any person, property or the Equipment itself.
3.2. Should the Client become dissatisfied with the conduct of the operator, Client shall immediately notify Alistair in writing as to the existence and the basis of its dissatisfaction, whereupon Alistair will make its best endeavours to resolve the dissatisfaction.
3.3. Alistair reserves the right to replace any Equipment and / or operator at any time.
3.4. Unless otherwise stated in the Quote, for the duration of the asset hire Client is to provide food, transport, fuel and suitable accommodation for each operator.
3.5. All work will be performed on a straight time basis during Normal Working Times, any additional hours will be charged at 125% of the normal hourly rates Quoted.
4. Alistair Obligations:
4.1. Alistair shall maintain the Equipment at its own expense and the Client shall at any time required by Alistair grant it access to the Equipment for the purpose of inspection, maintenance, servicing and/or any other reason Alistair may deem appropriate.
4.2. Client cover any permit and access fees as may be applicable and shall indemnify Alistair for any loss or damage resulting from a denial of access.
4.3. The Client shall immediately report any damage, loss, breakdown or malfunction of the Equipment. Once notified, Alistair shall make its best effort, subject to availability, to replace the malfunctioning Equipment, unless at Alistair’s sole discretion, it is more feasible to restore the Equipment to full working capacity.
5. Client Obligations:
5.1. Upon termination for whatsoever cause, the Client shall immediately i) return the Equipment to Alistair’s premises or where so arranged ii) make the Equipment available for pick up by Alistair or its agent.
5.2. All quoted rates and timeframes are contingent on Alistair being granted the necessary access to the work area, and Client hereby warrants that Alistair will be granted such necessary access. Client shall indemnify Alistair against all and any damage that Alistair may suffer as a result of the denial of access.
5.3. The Client warrants that the Equipment is suitable for the purpose and the area/s where it will operate are safe fit for the Equipment.
5.4. The Client hereby holds harmless Alistair and/or the operator for any damage to any structure, above or below ground, any utilities and any surface structure, including but not limited to concrete or asphalt.
5.5. Alistair will assume all costs and expenses in the replacement or repair of the Equipment, unless, in Alistair’s sole discretion, the breakdown or malfunction is due to the fault of the Client, in which case the Client indemnifies Alistair for the full cost of repair or replacement.
5.6. Should the Client be without the Equipment due to Alistair being in the process of repairing or replacing it, the Client will not be charged for the period of time that the Client is without the Equipment.
5.7. The Client agrees that at no time shall it attempt to make any repairs or changes to the Equipment.
5.8. The Client shall during the term of this Agreement:
5.8.1. keep the Equipment in a secure and suitable environment when not in use;
5.8.2. not remove, alter, disfigure or cover up any numbering, lettering or insignia displayed upon the Equipment or any warnings or documentation thereon;
5.8.3. not sublet the Equipment;
5.8.4. keep the equipment free from any liens, claims, charges and encumbrances during the rental period; or
5.8.5. not undertake any maintenance, alterations, or repairs, use of the Equipment whatsoever,
6. Liabilities and Insurance:
6.1. Unless otherwise agreed, during the rental period the Client shall, at its own expense, provide and maintain the following insurances:
6.1.1. insurance of the Equipment against loss by all risks of physical loss or damage by fire, theft or accident not caused by the actions of an operator provided by Alistair, in an amount equal to the full replacement value;
6.1.2. insurance for such amounts as a prudent owner or operator of the Equipment would insure for, for such amount as Alistair may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and howsoever arising in connection with the Equipment, excepting that which arises due to the actions of an operator provided by Alistair; and
6.1.3. insurance against other or further risks relating to the Equipment as may be required by law, together with such insurance as Alistair may from time to time consider reasonably necessary.
6.2. The Client shall during the term of this Agreement not do or permit to be done anything which could invalidate the insurances and upon request of Alistair, provide Alistair with certificates of insurance evidencing the coverage.
6.3. Alistair may refuse to provide the Equipment if the Client defaults on its obligations herein.
6.4. The provision of any insurance required herein does not relieve the Client of any responsibilities or obligations outlined in this Agreement or as may be liable by law or otherwise.
Schedule D: Clearance:
1.1. The Rates are exclusive of any applicable customs, taxes, duties, tariff, and rates for storage, demurrage, wharfage, corridor levies or any other rates or charges levied by the relevant port or Authority.
1.2. These Rates will be receipted and invoiced to the Client and Client shall pay all amounts in full prior to collection or loading of Goods.
1.3. The Client shall remain responsible for any charges, duties or expenses until same has been settled, regardless whether are to be paid by a consignee or any other person immediately when due.
1.4. Alistair shall not be liable where an examination to be held or other action to be taken in respect of any discrepancy in the Goods.
1.5. Where, as a result of any act or omission by or on behalf or at the instances of Alistair and whether or not such act or omission was negligent, grossly negligent or intentional, any duty, tax, levy, wharfage or any other impost or charge has been paid or levied in an incorrect amount, then any responsibility or liability to the Client which Alistair may otherwise have will cease and fall away if the Client does not (i) within a reasonable time having regard to all the circumstances, and in particular to the time allowed for recovery from the payee of the amount overpaid, advise Alistair that an incorrect amount has been paid or levied, and (ii) do all such acts as are necessary to enable Alistair to effect recovery of the amount incorrectly paid or levied.
1.6. The fact that the Client may not be aware that any such incorrect payment has been made shall not constitute a circumstance to be taken into account in calculating what is a reasonable time for the purposes of clause 1.5 above.
1.7. Should any act or omission of the Client, whether such act or omission was due to ignorance on the part of the Client, and whether or not such ignorance was reasonable or justified in the circumstances, prejudice Alistair’s right of recovery, the Client shall be deemed not to have complied with the provisions of clauses 1.5.