TRANSPORTATION TERMS & CONDITIONS ENTERED INTO BETWEEN:
Name: ALM Transport (Mauritius) Ltd
Registration Number: C098684
Domicile Address: Unit 21, Circle Square Business Park, Forbach, Mauritius
Referred to as: “ALM”
Collectively referred to in this Agreement as “Parties” and individually as “Party”
Whereas the customer has appointed ALM to provide the services and ALM hereby wishes to subcontract the services to the Subcontractor, however subject to the terms and conditions of this Agreement; and
Whereas the Subcontractor has agreed to accept such an appointment to provide the services, subject to the terms and conditions of this Agreement.
NOWTHEREFORE, in consideration of the promises, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
- SUBCONTRACTOR APPOINTMENT AND WARRANTIES:
- ALM appoints the Subcontractor to provide the subcontracted services as may be allocated to it from time to time.
- The Subcontractor is an independent contractor and nothing shall be deemed to create a partnership, joint venture or agency relationship between the Parties.
- The subcontractor is the owner of the asset or duly authorised to make use of such asset.
- The Subcontractor warrants that:
- it has valid & adequate Liability Insurance covering cargo losses and damages;
- its vehicles have GPS Tracking Devices fitted and data accessible to ALM;
- its drivers are qualified, licensed and hold appropriate international travel documentation. The drivers have data- enabled “smart’ phones – Minimum Android 5.1.1 Lollipop operating system – and are contactable throughout the journey, 24Hrs/day;
- its vehicles and trailers are properly maintained, serviced and hold roadworthiness certification. The vehicles have the
transit / local documentation and insurance required to operate;
- it provides their drivers with the required Personal Protective Equipment (PPE) and vehicles hold suitable quantities of loading equipment (straps and chains) as directed by ALM before dispatch and loading;
- It will in no manner or form solicit or attempt to solicit any business from ALM’s customer who benefits from the services, breach thereof will result in a claim for 50% of the gross profit obtained by the subcontractor from the relevant customer;
- it will ensure that cargo is delivered timeously;
- It will at no point subject cargo to a lien, claim, pledge or the like, whether by itself or a third party exercising a right; and
- it will provide the services itself and shall not subcontract any aspect thereof to a third party without ALM’s express prior written approval.
- it is not authorized to detain the cargo by offloading the cargo/holding it at an area to gain financially or otherwise.
- PREFERRED SUBCONTRACTOR APPOINTMENT
- The Subcontractor agrees to undergo a due diligence process and provide ALM with all documents required, not limited to all licenses, policies, certificates etc. within one (1) week of signature hereof, followed by an annual review for HSSE & quality assurance purposes and promotion of common working practice.
- ALM reserves the right to approve or reject the allocation of vehicles and drivers to transport ALM Cargo subject to past performance history of those vehicles and drivers to ensure HSSE & quality control of services to ALM customers.
- ALM reserve the right to appoint and terminate contracted work at its discretion without minimum notice should it believe that there is a breach, or imminent breach or misrepresentation of any of the warranties, or due diligence information provided (including expiry thereof).
- OBLIGATIONS OF THE SUBCONTRACTOR
The Subcontractor will:
- do all that is reasonably practicable to ensure the safe, secure and efficient transportation of the cargo.
- adhere to all ALM legal & procedural instructions. Specifically: zero bribery and / or corruption policy; nil night driving policy; convoy & security procedures.
- provide tracking reports on request to ALM x2/day; usually by 0800Hrs and 1300Hrs daily.
- allow the ALM Transit Controller to have direct contact with the driver while in transit for quality and control purposes.
- allow ALM-appointed security personnel to ESCORT the subcontracted vehicle where security and operational needs are necessary and elected by ALM.
- ensure that cargo documents are signed by the receiving party on delivery and scanned to the ALM Transit Controller within 24Hrs. Original documentation to be dispatched to ALM at its nominated address immediately after delivery of cargo.
- return shipping containers to the nominated ICD under ALM instruction and indemnify ALM for any demurrage/Detention/penalties caused by a delay.
- SPECIAL PROVISIONS RELATING TO CARRIAGE
- acknowledges that time is of the essence and will ensure strict adherence to transit and delivery times.
- will be liable for any delays plus incurred expenses due to poor driver discipline, breakdown, accident, unpaid trip expenses, additional security measures or any legal and/or justifiable claim that ALM make.
- shall provide Truck cards, and driver details on request from ALM Broker/Operations Lead and will make the vehicle available for loading without delay.
- Indemnifies ALM against any and all:
- penalties, standing time, demurrage, storage or the like resultant from the Services where ALM or its customer is not the solely at fault;
- claims for loss or damage (other than for cargo) resulting from any act or omission of the Subcontractor;
- loss or damage to cargo entrusted to the Subcontractor until physical possession is surrendered to ALM or the received at the delivery point; and
- breach of warranty, or claim by any of the Subcontractor’s employees, agents or representatives, regardless of the nature or cause thereof.
- RATES & TRIP FINANCE
- Loading confirmation will be issued to the Subcontractor confirming the rates, loading instructions, transit times and Delivery Instructions by the ALM representative.
- The Subcontractor’s rates are an all-inclusive amount covering any and all costs, disbursements, taxes, levies, etc. and ALM shall not be liable for any amounts other than the agreed rates.
- Without derogating from clause 5.2 above, should ALM however deem it necessary in its discretion to step in in relation to any trip expenses in order to avoid potential transit delays and elects to make payment on behalf of the Subcontractor, then any such payments will attract a 15% disbursement fee plus VAT which shall be invoiced to the Subcontractor and be due and payable upon presentation of invoice.
- TERMS OF PAYMENT
- The Subcontractor shall receive an Advance Proposal/ Settlement Proposal within 7 days of loading or offloading ALM cargo at the final destination. Only then can the Subcontractor send their invoice matching our AP/SP and ALM will execute payments within the mutually agreed timeframe.
- Unless expressly agreed otherwise in writing as an amendment hereto (i.e. not any other legal terms proposed by Subcontractor), ALM will make final payment within 30 days after receipt of invoice and supporting documents. Payment will be made by bank transfer or cheque.
- ALM shall at its discretion be entitled to set-off any amounts due and owing to the Subcontractor against any claim that ALM may have against the Subcontractor, regardless whether it is related to the services in question or not.
- GOVERNING LAW AND DISPUTE RESOLUTION:
- This Agreement shall be governed and construed under the laws of South Africa and place of jurisdiction at Johannesburg, South Africa.
- Dispute, if any, arising out of or in connection with this Agreement shall be resolved by expeditious arbitration under the prevailing rules of the Arbitration Foundation of South Africa by a single arbitrator, seated in Johannesburg and conducted in English. Costs shall follow the award.
- ALM has the discretion to enforce any right or make any claim against the Subcontractor in any jurisdiction where the Subcontractor is registered or has assets, regardless of clause 7.2 above should it so elect.
- No variation, amendment or consensual cancellation of this Agreement or any term hereof will be binding or have any force and effect unless reduced to writing and signed by or on behalf of the Parties.
- Any extension of time or waiver or relaxation of any of the terms of this Agreement will be construed as relating strictly to the matter in respect of which it was made or given and will not operate as an estoppel against either Party in respect of its rights under this Agreement.
- No failure by either Party to enforce any term of this Agreement will constitute a waiver of such term or affect in any way such Party’s right to require the performance of such term at any time in the future, nor will a waiver of a subsequent breach nullify the effectiveness of the term itself.
- If any term or part of any term of this Agreement is for any reason whatsoever, including a decision by any court, any legislation or any other requirement having the force of law, declared or becomes unenforceable, invalid or illegal, the remainder of this Agreement shall not be affected and the invalid provision or part shall be replaced or amended, so far as it is necessary to maintain the purpose and continuity of the Joint Venture.
- This Agreement may be executed in any number of counterparts all of which together will constitute one and the same instrument.