agreement of - loyalty for prosperity “afma” means the animal feed manufacturers ... laws of the...

TRANSPORT AGREEMENT

BETWEEN

GERT EN RINA LOGISTIEK CC

AND

______________________________________________ (Transporter)

Prologue TRANSPORT AGREEMENT

BETWEEN

GERT EN RINA LOGISTIEK CC

Company Registration Number : 2009/040279/23

VAT Registration Number :

Business address :

Email address :

Contact Number (mobile) :

Contact Number (landline) :

Fax number :

Postal address :

Banking details :

ID number of signatory, signing on behalf of –

Gert en Rina Logistiek CC :

Address of signatory :

Email address of signatory :

AND

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(Name of Transporter in Print) (TRANSPORTER)

Company Registration Number :

VAT Registration Number :

Business address :

Email address :

Contact Number (mobile) :

Contact Number (landline) :

Fax number :

Postal address :

Banking details :

Full names of signatory, signing on behalf of the Transporter :

ID number of signatory, signing on behalf of Transporter :

Address of signatory :

Email address of signatory :

INDEX

NO CLAUSE HEADINGS PAGE

1 DEFINITIONS AND INTERPRETATION 1

2 APPOINTMENT 4

3 PROVISIONS OF SERVICES 4

4 ADDITIONAL SERVICES 7

5 DUTIES AND OBLIGATIONS OF GERT EN RINA LOGISTIEK CC 7

6 REMUNERATION 7

7 PAYMENT 8

8 SHORTAGES AND SET OFF 8

9 COSTS 9

10 LIABILITY 9

11 LIMITATION AND EXCLUSION OF LIABILITY 10

12 GOODS IN TRANSIT INSURANCE 11

13 SUBCONTRACTS 11

14 BREACH 11

15 DISPUTES 12

16 FORCE MAJEURE AND IMPOSSIBILITY OF PERFORMANCE 15

17 RELATIONSHIP 15

18 CESSION AND ASSIGNMENT 16

19 AGREEMENT BINDING ON SUCCESSORS IN TITLE 16

20 DOMICILIA 16

21 GOVERNING LAW 17

22 WHOLE AGREEMENT AND NO WAIVER 17

23 PUBLICITY 18

24 COSTS 18

25 WARRANTY BY SIGNATORIES 18

INITIALS: _________ _________ Transport Agreement [Ref: KGV001/JJK/tvr]

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1 DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, the following expressions bear the meanings assigned to them:

1.1.1 “AFMA” means the Animal Feed Manufacturers Association;

1.1.2 “the/this Agreement" means this Agreement and any annexures hereto;

1.1.3 “Commencement Date” means the date of last signature of this Agreement;

1.1.4 "Consignment" means the particular Products to be conveyed by the Transporter

in accordance with a Transport Order;

1.1.5 "Consignor" means the person nominated by Gert en Rina Logistiek CC, from

whom the Products are to be uplifted by the Transporter at the loading point;

1.1.6 “Gert en Rina Logistiek CC" means a close corporation duly registered in

accordance with the laws of the Republic of South Africa with registration number

2009/040279/23;

1.1.7 "Loading Point" means any place nominated by Gert en Rina Logistiek CC for

the loading of the Products from time to time;

1.1.8 "Offloading Point" means any place nominated by Gert en Rina Logistiek CC for

the offloading of the Products from time to time;

1.1.9 "Parties" means Gert en Rina Logistiek CC and the Transporter, collectively or

individually as the context indicates;

1.1.10 "Products" means the Products in respect of which the services are to be or have

been rendered, as described in the Transport Order;

1.1.11 "Receiver" means the person nominated by Gert en Rina Logistiek CC to whom

the Products are to be delivered by the Transporter at the offloading point;

1.1.12 "Remuneration" means the amount(s) payable in respect of the services which

shall comprise a rate per ton of Products delivered to an offloading point in

accordance with the provisions of this Agreement, plus any other amount(s) agreed

between the parties;

1.1.13 "Services" means the services to be rendered by the Transporter to Gert en Rina

Logistiek CC in terms of this Agreement as set out in clause 3 below;


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1.1.14 "Stipulated time period" means the date (and time) by which the consignment is

to be offloaded at the offloading point by the Transporter as notified by Gert en

Rina Logistiek CC;

1.1.15 "Ton" means a metric ton;

1.1.16 "Transporter" means the transport company, or other form of legal entity as may

be the case, as indicated in the Prologue of this Agreement, a company or other

form of legal entity as may be the case, duly incorporated in accordance with the

laws of the Republic of South Africa;

1.1.17 "Transport Order" means the document issued by Gert en Rina Logistiek CC to

the Transporter each time that the Transporter is to render services to Gert en

Rina Logistiek CC in terms of this Agreement confirming the following details as

agreed between them:

1.1.17.1 a description of the Products, including the quantity thereof and whether in

bulk, bags, palletised and/or containerised;

1.1.17.2 the loading point and the offloading point;

1.1.17.3 the Consignor and the receiver;

1.1.17.4 the dates (and times) that the consignment is to be loaded and offloaded;

1.1.17.5 the tolerance in respect of delivered quantities;

1.1.17.6 the Remuneration payable by Gert en Rina Logistiek CC in respect of the

services to be rendered;

1.1.17.7 any other terms applicable to the particular consignment;

1.1.18 "Truck" means any road vehicle used or to be used by the Transporter to convey

the Products in terms of this Agreement.

1.2 Clause headings are for convenience only and are not be used in the interpretation of the

clause to which they relate.

1.3 Unless the context clearly indicates the contrary intention, an expression which denotes

any gender shall include the other genders, a natural person shall include a juristic

person, and vice versa, the singular shall include the plural and vice versa and any


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reference to an enactment is to that enactment as at the date of signature hereof and

amended or re-enacted from time to time.

1.4 If any provision in a definition is a substantive provision conferring rights or imposing

obligations on any party, notwithstanding that it is only in the definition clause, effect shall

be given to it as if it were a substantive provision in the body of the Agreement.

1.5 When any number of days is prescribed in this Agreement, same shall be reckoned

exclusively of the first and inclusively of the last day unless the last day falls on a

Saturday, Sunday or public holiday, in which case the last day shall be the next

succeeding day which is not a Saturday, Sunday or public holiday.

1.6 Where figures are referred to in numerals and in words, if there is any conflict between

the two, the words shall prevail.

1.7 Where any term is defined within the context of any particular clause in this Agreement,

the term so defined, unless it is clear from the clause in question that the term so defined

has limited application to the relevant clause, shall bear the meaning ascribed to it for all

purposes in terms of this Agreement, notwithstanding that that terms has not been

defined in this interpretation clause.

1.8 The expiry or termination of this Agreement shall not affect those provisions of this

Agreement which expressly provide that they will operate after any such expiration or

termination or which of necessity must continue to have effect after such expiration or

termination, notwithstanding that the clauses themselves do not expressly provide for

this.

1.9 In the event and to the extent of conflict between the provisions of this Agreement and

those contained in the annexures, those contained in this Agreement shall prevail to the

extent of such conflict.

1.10 Each and every undertaking contained in this Agreement shall be capable of independent

enforcement, thus enabling any court or other competent tribunal to enforce the

remainder thereof should it adjudge any particular undertaking(s) or portions thereof to be

invalid.

1.11 The contra proferentem rule (i.e. the rule of construction that a contract shall be

interpreted against the party responsible for the drafting or preparation of the contract)

shall not apply in relation to the interpretation of this Agreement.


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2 APPOINTMENT

2.1 Gert en Rina Logistiek CC hereby appoints the Transporter, as an independent

contractor, to provide the services in respect of the Products, which appointment is

hereby accepted by the Transporter, subject to the terms and conditions of this

Agreement.

2.2 This Agreement shall commence on the commencement date and shall endure

indefinitely, subject to each party's right to terminate the Agreement upon 30 (thirty) days'

written notice to the other, without prejudice to any obligations or rights on the part of both

parties which shall have accrued prior to such termination.

2.3 The Transporter's appointment is not exclusive, i.e. Gert en Rina Logistiek CC shall be

entitled to use other Transporters to provide services.

3 PROVISION OF SERVICES

3.1 The Transporter shall provide the following services to Gert en Rina Logistiek CC :

3.1.1 Supervise the loading of, or, if required, load a consignment onto a clean, dry and

contamination free, empty Truck or Trucks at the loading point.

3.1.2 Securely tarp each load and ensure that the consignment is protected from rain,

contamination and loss during transit.

3.1.3 Procure that the consignment is weighed by the Consignor’s weighbridge at the

loading point.

3.1.4 Include on the delivery documentation for each consignment at least the –

3.1.4.1 quantity of the Products loaded;

3.1.4.2 Truck registration number; and

3.1.4.3 Order number.

3.1.5 Prepare and forward to Gert en Rina Logistiek CC a daily schedule of all

consignments dispatched, including tonnages loaded and estimated times or

arrival at Offloading Points.


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3.1.6 Convey the Products from the loading point to the offloading point within the

stipulated time period and via the route agreed with Gert en Rina Logistiek CC,

alternatively, in the absence of such Agreement the most efficient route.

3.1.7 Have in place goods in transit insurance as more fully described in clause 12.

3.1.8 Upon arrival at the offloading point –

3.1.8.1 Procure that the consignment is weighed by the receiver’s weighbridge;

3.1.8.2 Check whether the consignment is consistent with the delivery / dispatch note

details;

3.1.8.3 Inspect the Products and report the existence of discrepant, damaged or

missing Products or the packaging thereof;

3.1.8.4 Offload the Products;

3.1.8.5 Obtain documentation signed and stamped by the receiver confirming the

quantity, quality and condition of the Products delivered to the receiver

(“POD”)

3.2 The Transporter shall, in providing the services, -

3.2.1 comply with all legal requirements relating to the provision of the Services,

including inter alia, all occupational health, safety and environmental legislation,

the provisions of the National Road Traffic Act, 93 of 1996, the provisions of the

Customs and Excise Act and all regulations promulgated in terms of the such

legislation and any new legislation and regulations;

3.2.2 comply with all animal feed industry requirements and food milling industry

requirements relating to the provision of the services, including, inter alia, the

protocols published, and to be published, by AFMA;

3.2.3 without derogating from the generality of the aforegoing, ensure that a

consignment does not exceed the legal carrying capacity of the Truck it being

agreed that any penalties and/or fines incurred as a result of overloading shall be

the sole responsibility of the Transporter;

3.2.4 employ suitably qualified and trained personnel to provide the services;


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3.2.5 comply with all reasonable instructions furnished to it by the designated

representative(s) of Gert en Rina Logistiek CC from time to time in connection

with the services;

3.2.6 procure all equipment that may be necessary for the execution of its

responsibilities in terms of this Agreement at its own expense, and operate and

maintain such equipment so that it complies with all applicable safety standards;

3.2.7 conduct the services in a safe, proper and workmanlike manner and exercise

reasonable skill, care and diligence in the performance of the services;

3.2.8 be solely responsible for obtaining all necessary permits and authorisations

required from any local or government authority in connection with the provision of

the services;

3.2.9 become familiar with and comply with all requirements at loading and offloading

points;

3.2.10 execute the services in such Order and sequence as is reasonably required by

Gert en Rina Logistiek CC and, to the best of its reasonable ability, render the

services as timeously as possible in the circumstances;

3.2.11 collect or deliver the Products from or to the loading and offloading points

respectively during the usual working hours of the personnel employed there or at

such other time as may have been agreed;

3.2.12 advise Gert en Rina Logistiek CC of any loss of or damage to the Products,

regardless of where such loss or damage occurred, as soon as the Transporter

becomes aware of any such loss or damage and carry out Gert en Rina Logistiek

CC’s reasonable instructions regarding any Products; and

3.2.13 ensure that the operators of the Transporters' vehicles will be equipped with an

operational cellular phone and to be contactable at all times.

3.3 If the Transporter fails to convey the Products from the loading point to the offloading

point within the stipulated time period, any losses or damages occasioned thereby,

including, inter alia, any additional storage or other charges received by Gert en Rina

Logistiek CC from the Consignor and/or Receiver, shall be borne by and/or payable on

demand by the Transporter.


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3.4 If the Transporter submits inaccurate or incomplete documents to Gert en Rina

Logistiek CC, it shall be obliged to rectify the documents and also pay to Gert en Rina

Logistiek CC upon demand therefor, an administration fee of R3.00 per ton.

4 ADDITIONAL SERVICES

The parties may agree that the Transporter shall perform services other than those provided

for in this Agreement, in which event an additional fee shall be payable by Gert en Rina

Logistiek CC, at a rate agreed between the parties.

5 DUTIES AND OBLIGATIONS

5.1 Gert en Rina Logistiek CC shall –

5.1.1 issue a Transport Order once the Transporter has confirmed that it will convey an

intended consignment in terms of this Agreement pursuant to an enquiry received

from Gert en Rina Logistiek CC in that regard;

5.1.2 ensure that the Transporter is provided with all requisite information and data

necessary to enable the Transporter to comply with its obligations under this

Agreement; and

5.1.3 ensure that its decisions on all matters referred to in writing by the Transporter are

communicated to the transporter in writing and without any unreasonable delay to

enable the Transporter to comply with its obligations under this Agreement.

5.2 It is recorded that although Gert en Rina Logistiek CC advocates and requires prompt

loading and offloading at all times, no guarantees are given by Gert en Rina Logistiek

CC in this regard.

6 REMUNERATION

6.1 In consideration for the Services, Gert en Rina Logistiek CC shall pay to the Transporter

the Remuneration as per the Transport Order.

6.2 Unless agreed to the contrary in the Transport Order –

6.2.1 the Remuneration is inclusive of any value-added tax; and

6.2.2 the Receiver's weighbridge certificates shall constitute prima facie proof of the

quantity of Products delivered to an Offloading Point.


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6.3 It is recorded that no standing time charges will be payable by Gert en Rina Logistiek

CC to the Transporter unless prior agreement to that effect has been concluded in writing

between the Parties, and duly signed by both Parties.

7 PAYMENT

7.1 The Transporter shall provide Gert en Rina Logistiek CC with a tax invoice on

completion of the offloading of a consignment specifying the Remuneration due in respect

of the Services provided in respect of that consignment, together with the relevant POD,

Consignor's weighbridge certificate, Receiver's weighbridge certificate and any

documents required by Gert en Rina Logistiek CC in respect of the provisions of the

Customs and Excise Act.

7.2 Each of the transporter's invoices to Gert en Rina Logistiek CC shall not pertain to more

than one Transport Order, i.e. each invoice shall pertain to a single Gert en Rina

Logistiek CC contract number, a single route, and single type of Product. The Gert en

Rina Logistiek CC contract number shall be clearly depicted on the invoice. The

contract number shall be communicated to the Transporter on the Transport Order.

7.3 The Transporter shall provide Gert en Rina Logistiek CC with a consolidated statement

in respect of each calendar month, specifying the Remuneration due in respect of

Services provided during such calendar month.

7.4 Gert en Rina Logistiek CC shall make payment to the transporter of the amount

reflected in each original tax invoice within 30 (thirty) days, provided that the originals of

the other documents referred to in clause 7.1 have been provided, and subject always to

the provisions of clause 8 below.

7.5 All payments by Gert en Rina Logistiek CC shall be made into a back account

nominated in writing by the Transporter.

8 SHORTAGES AND SET OFF

8.1 In the event that there is a shortage in respect of the quantity of the Products loaded at

the Loading Point and the quantity offloaded at the Offloading Point, the Transporter shall

issue to Gert en Rina Logistiek CC a credit note in respect of the value of such

shortage, the amount of which will be set off against the Remuneration payable in respect

of the short-delivered Truckload.

8.2 Gert en Rina Logistiek CC shall not be obliged to pay any Remuneration in respect of

the short-delivered Truckload before it has received the credit note, provided that nothing


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in this clause shall affect Gert en Rina Logistiek CC's rights to claim from the

Transporter and/or its insurers the value of any Products not delivered in respect of which

it has not received compensation by way of set-off or otherwise.

8.3 Gert en Rina Logistiek CC shall also be entitled to set-off the following against any

Remuneration payable to the Transporter:

8.3.1 Any demurrage incurred by Gert en Rina Logistiek CC due to the Transporter's

failure to load or offload Products timeously; and

8.3.2 Any other amounts approved by the Transporter.

9 COSTS

Any costs, including attorney and own client costs, incurred by either Party arising out of the

breach by the other Party of any of the provisions of this Agreement shall be borne by the

breaching Party.

10 LIABILITY

10.1 Subject always to the provisions of clause 11 the Transporter shall be liable to Gert en

Rina Logistiek CC for any loss of and/or damage to the Products sustained between the

time when it commences handling those products at the Loading Point until it places the

Products at the disposal of the Receiver at the offloading Point, including any loss or

damages occasioned thereby, and, save to the extent that Gert en Rina Logistiek CC

has already set off the value of such loss or damage in terms of clause 8, shall reimburse

Gert en Rina Logistiek CC or shall procure that its insurers shall reimburse Gert en

Rina Logistiek CC in respect of such loss or damage within 30 (thirty) days of being

notified by Gert en Rina Logistiek CC of its claim in that regard. For the purposes of

this Agreement, "damage" shall mean deterioration in the quantity, quality or condition of

the goods, sustained between the times when the transporter commences handling the

Products at the Loading Point until it places the Products at the disposal of the Receiver

at the offloading Point.

10.2 In the event that the transporter or its insurers fail timeously to so reimburse Gert en

Rina Logistiek CC in respect of such loss or damage, and without prejudice to its other

rights in terms of this Agreement and at law, Gert en Rina Logistiek CC shall be entitled

to set off the amounts due in that regard from any amounts due by it to the Transporter.


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10.3 Nothing in this clause 10 shall preclude Gert en Rina Logistiek CC from claiming

against the Transporter any other losses or damages sustained by it as a result of any

breach of this Agreement by the Transporter.

10.4 Gert en Rina Logistiek CC and the Consignor shall not be liable, in respect of or in

consequence of any accident or damage to the vehicle or property belonging to the

Transporter or third parties, and the Transporter indemnifies Gert en Rina Logistiek CC

and the Consignor against all such damages and compensation against all claims,

demands, proceedings, costs, charges and expenses, whatsoever, in respect thereof or

in or in relation thereto.

10.5 The Transporter having been given permission to enter the loading and/or offloading

points for purpose of rendering of the services in terms hereof, hereby acknowledges that

the Transporter enters the said premises entirely at its own risk and that it shall have no

claim against Gert en Rina Logistiek CC and/or its Consignor.

10.6 The Transporter shall take any and every precaution not to injure any of the employees of

Gert en Rina Logistiek CC and/or the Consignor or any other persons, nor to damage

any of the property at the loading and/or offloading points in the execution of the

Agreement and the Transporter hereby indemnifies Gert en Rina Logistiek CC and/or

the Consignor against all claims, damages, demand, proceedings, costs, charges and

expenses whatsoever, arising in this regard.

10.7 The Transporter indemnifies Gert en Rina Logistiek CC and/or the Consignor against

any claim arising from any loss, damage or personal injury suffered by any person or

instance as a result of or in the course of such transportation. For these purposes, the

Transporter shall make provision for adequate insurance to cover any such loss or

damage to Products/goods or person at its own cost.

11 LIMITATION AND EXCLUSION OF LIABILITY

The Transporter shall not have any liability whatsoever for claims for, arising from or relating

to –

11.1 an act or omission of Gert en Rina Logistiek CC or any person acting on its behalf;

11.2 the transporter complying with the instructions given by or on behalf of Gert en Rina

Logistiek CC;

11.3 an act or Order of any legal authority;


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11.4 the handling, loading or offloading of Products by Gert en Rina Logistiek CC; or

11.5 the insufficiency of the packaging or labelling of the Products or containers, except where

such service has been provided by the Transporter.

12 GOODS IN TRANSIT INSURANCE

12.1 The Transporter shall take out and maintain during this Agreement, sufficient and

comprehensive insurance to cover any claims by Gert en Rina Logistiek CC or any

owner of the Products for loss of or damage to the Products;

12.2 Such insurance shall be for not less than the full replacement value of the Products, shall

record Gert en Rina Logistiek CC and any owner's insurable interest in the Products,

and shall be on the terms specified by Gert en Rina Logistiek CC, failing which, on the

terms usually associated with "goods in transit" insurance, including damage or loss

incurred as a result inter alia, of fire, theft (including hi-jacking) and/or accidents.

12.3 The Transporter shall produce to Gert en Rina Logistiek CC, upon demand, the relevant

policy or policies, and proof of payment of the current premiums.

12.4 Any amounts not recoverable from the insurers in respect of loss of or damage to the

Products, whether by way of excess, or because insufficient or no insurance over is in

place, or for any other reason whatsoever, shall be recoverable by Gert en Rina

Logistiek CC from the Transporter.

13 SUBCONTRACTS

The Transporter shall be entitled to engage the services of a sub-contractor only with the

written consent of Gert en Rina Logistiek CC, and any such sub-contracting shall not

relieve the transporter of any of its obligations under this Agreement.

14 BREACH

14.1 Should the Transporter –

14.1.1 breach any provisions of this Agreement, and further fail to commence rectifying

such breach within 7 (seven) days after receiving written notice from Gert en Rina

Logistiek CC requiring it to do so, or to diligently continue with such rectification;

or

14.1.2 persistently breach or fail to perform any one or more of its obligations in terms of

this Agreement to such an extent so as to demonstrate the intention of the


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transporter not to continue performance of its obligations under this Agreement or

its inability to perform such obligations,

then, Gert en Rina Logistiek CC shall be entitled to terminate this Agreement (either as

an alternative to a claim for specific performance or upon the abandonment of such

claim) on written notice given to the transporter, without prejudice to Gert en Rina

Logistiek CC's rights to claim damages.

14.2 Should Gert en Rina Logistiek CC breach this Agreement and fail to remedy such

breach within 7 (seven) days after receiving written notice from the Transporter requiring

it to do so, the Transporter shall be entitled to terminate this agreement (either as an

alternative to a claim for specific performance or upon the abandonment of such claim)

on written notice given to Gert en Rina Logistiek CC without prejudice to the

Transporter's rights to claim damages.

14.3 Notwithstanding any of the aforegoing provisions to the contrary, each Party shall be

entitled, without prejudice to its rights in terms of this Agreement or according to law

(including its rights to claim damages), to terminate this Agreement by written notice to

the other if the other Party –

14.3.1 is wound-up, or placed under judicial management (whether provisionally or

finally), or it passes a resolution for its winding-up;

14.3.2 has a default judgment entered against it and fails within 10 (ten) days thereafter

either to satisfy that judgment or to take effective steps to have it set aside;

14.3.3 commits any act of insolvency or proposes a compromise with its creditors

generally other than for the purposes of amalgamation of reconstruction;

14.3.4 is unable, or is deemed to be unable to pay its debts; or

14.3.5 ceases to conduct business or gives notice of its intention to do so.

15 DISPUTES

15.1 Save as otherwise provided in this Agreement, if any dispute arises between the Parties

in relation to any matter pertaining to this Agreement or any cancellation thereof, then

such dispute shall be dealt with in the manner hereinafter prescribed.

15.2 Each of the Parties hereby undertakes to the other, to negotiate and endeavour to

resolve any such dispute as soon as possible by mutual agreement, without a formal

dispute being declared, and to this end, -


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15.2.1 the dispute will be referred for negotiation to the respective representatives of Gert

en Rina Logistiek CC and the Transporter; and

15.2.2 in the event where the aforesaid representatives are unable to reach agreement

within 3 (three) days, the matter will be further discussed between the Parties'

respective Chief Executive Officers.

15.3 If the Parties are still unable to reach any Agreement in the manner referred to in clause

15.2 within 30 (thirty) days of the negotiations referred to therein having commenced,

then a Party may (but is not obliged) refer such dispute to arbitration in terms of this

clause.

15.4 Subject to the provisions of this clause, the arbitration shall be held in Bloemfontein in

accordance with the AFSA Rules for expedited Arbitrations.

15.5 The arbitrator shall be, if the question in issue is –

15.5.1 primarily an accounting matter, a chartered accountant of not less than 10 (ten)

years standing;

15.5.2 primarily other than an accounting matter, a practising advocate of not less than 10

(ten) years standing,

agreed upon by the parties to the dispute or, failing such agreement within 3 (three)

business days after the date on which the arbitration is demanded, appointed by AFSA or

its successor, who may be requested by any party to the dispute to make that nomination

at any time after the expire of that 3 (three) business day period.

15.6 Should the parties to the dispute not be in agreement as to whether the question in issue

is, or is other than, primarily an accounting matter, then it shall be deemed to be primarily

other than an accounting matter.

15.7 The arbitrator shall be entitled –

15.7.1 to investigate or cause to be investigated any matter, fact or thing which he

considers necessary or desirable in connection with the dispute and for that

purpose shall have the widest powers of investigating all the books and records of

any party to the dispute and the right to make copies thereof and the right to have

them produced or delivered at any reasonable place required by him for the

aforesaid purposes;

15.7.2 to interview and question under oath any of the Parties;


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15.7.3 to decide the dispute according to what he considers just and equitable in the

circumstances;

15.7.4 to make such award, including an award for specific performance, an interdict,

damages or a penalty or otherwise as he in his discretion may deem fit and

appropriate.

15.8 The arbitration shall be held as quickly as possible after it is demanded with a view to its

being completed within 20 (twenty) business days after it has been so demanded.

15.9 Immediately after the arbitrator has been agreed upon or nominated in terms of clause

15.5, any of the parties to the dispute shall be entitled to call upon the arbitrator to fix a

date and place when and where the arbitration proceedings shall be held and to settle the

procedure and manner in which the arbitration proceedings will be held.

15.10 Any award that may be made by the arbitrator –

15.10.1 shall be final and binding;

15.10.2 will be carried into effect; and

15.10.3 may be made an order of any court to whose jurisdiction the parties to the dispute

are subject.

15.11 Nothing in this clause shall preclude a Party from applying to Court for a temporary

interdict, or other relief of any urgent and temporary nature, pending the award of the

arbitrator.

15.12 Pending resolution of the dispute, the Parties shall continue to implement this Agreement

fully.

15.13 Dispute resolution proceedings and the outcome thereof shall as far as possible be kept

confidential.

15.14 This clause shall survive the termination of this Agreement for any reason whatsoever.

15.15 However, should the parties not be able to conclude a written agreement within the 20

days' period referred to in clause 15.8 above, in terms whereof the arbitration process is

to be conducted, then any of the parties will be entitled to institute legal process in any

appropriate Court of Law which may have jurisdiction to adjudicate the matter.


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16 FORCE MAJEURE AND IMPOSSIBLITY OF PERFORMANCE

16.1 In this clause the expression "force majeure" means war, earthquake, fire, flood, frost,

tempest, drought, cyclone, act of God, decrees or restraints or acts of Government or

military authority, impassable public road conditions, strikes and other industrial disputes,

sabotage, civil commotion, riots, lock-outs, labour unrest or disputes, unscheduled

stoppages, civil disorder, boycott, or any other similar cause wholly beyond the

reasonable control of the Party affected thereby (provided that inability to meet any

obligation hereunder because of lack of funds, shall in no circumstances be treated as an

event of force majeure).

16.2 In the event that any Party shall be rendered unable to carry out the whole or any part of

its obligations under this Agreement by reason of an event of force majeure, the

performance of the obligations hereunder of the party affected thereby, shall be excused

during the continuance of such inability so caused, provided that –

16.2.1 such inability shall insofar as possible be remedied by the Party affected thereby,

with all reasonable dispatch; and

16.2.2 the performance of the obligations of the party concerned shall be resumed as

soon as may be reasonably practicable after the interruption has ceased

16.3 Should any occurrence as referred to above arise, then during any period in which any

Party hereto is prevented form fulfilling any of its obligations hereunder, the other Party

shall be entitled to take such steps as may be reasonably necessary in the

circumstances, to deal with the situation as it may deem fit, in order to meet the

requirements in the normal and ordinary course of its operations.

16.4 Notwithstanding the aforegoing, if either party is precluded by, or as a result of an event

of force majeure from fulfilling its obligations for a period of more than 90 (ninety)

consecutive days, then either Party shall be entitled, but not obliged, to cancel this

Agreement and neither Party shall be entitled to claim damages as a result of such

cancellation.

17 RELATIONSHIP

17.1 This Agreement shall not constitute a partnership or joint venture, between the Parties

and neither Party will hold itself out as an agent, partner or representative of the other.


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17.2 The Transporter is not, at any time whatsoever, entitled to, directly or indirectly, negotiate,

deal or contract with any Consignor or Receiver about pricing, invoicing and/or payments

pertaining to any Transport Order, whatsoever.

18 CESSION AND ASSIGNMENT

The Transporter shall not be entitled to cede, assign or otherwise delegate any of its rights

and obligations in terms of this Agreement without the prior written consent of Gert en Rina

Logistiek CC, which consent shall not unreasonably be withheld.

19 AGREEMENT BINDING ON SUCCESSORS IN TITLE

This Agreement shall be binding on the successors in title, administrators, curators,

liquidators and trustees of each of the Parties.

20 DOMICILIA

20.1 All notices by one Party to the other shall be given in writing by prepaid registered post,

telefax, email or delivered by hand to –

20.1.1 Gert en Rina Logistiek CC:

Physical address:

Postal address:

Fax number:

Email address:

Attention:

20.1.2 The Transporter:

Physical address:

Postal address:

Fax number:

Email address:

Attention:

which physical addresses the Parties choose as their respective domicilia citandi et

executandi addresses.

20.2 In the absence of proof to the contrary, any notice sent by one Party to another –


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20.2.1 by registered post, shall be deemed to have been received 5 (five) days after it is

posted;

20.2.2 delivered by hand, shall be deemed to have been received on the day of delivery;

20.2.3 sent by telefax or email, shall be deemed to have been received on the next

business day after it is despatched,.

20.3 The Parties shall be entitled to change the addresses referred to in hereinabove from

time to time provided that any such change shall only become effective upon receipt of

notice in writing by the other Party of such change.

21 GOVERNING LAW

21.1 This Agreement shall be governed by and construed according to the laws of the

Republic of South Africa.

21.2 Subject to clause 15, the Free State High Court, Bloemfontein shall have non-exclusive

jurisdiction to hear and determine any suit, action or proceedings, which may arise out of

or in connection with this agreement.

22 WHOLE AGREEMENT AND NO WAIVER

22.1 This Agreement and the respective Transport Orders contain all the terms of the

agreement between the Parties and no amendment, variation, consensual cancellation or

addition shall be of any force or effect unless and until recorded in writing and signed by

the Parties hereto.

22.2 Save for those contained herein, no representations, warranties or statements –

22.2.1 have been given or made by, or shall be binding on, either Party;

22.2.2 have induced either party to enter into this Agreement.

22.3 The granting of any indulgence by either Party to the other shall not constitute a waiver

by the first-mentioned Party of any term or condition of this Agreement, nor as a waiver or

novation of any of the rights of such Party, nor estop such Party from exercising its rights,

and no waiver of any breach shall operate as a waiver of any continuing or subsequent

breach.


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23 PUBLICITY

Neither Party will make or issue any formal or informal announcement or statement to the

press in connection with this Agreement without the prior written consent of the other.

24 COSTS

Each Party shall bear its own costs of and incidental to the preparation and execution of this

Agreement.

25 WARRANTY BY SIGNATORIES

25.1 By his signature hereto each of the signatories to this Agreement warrants that he is duly

authorised to conclude this Agreement by the Party on whose behalf he so signs.

25.2 By his signature hereto, the person signing on behalf of the Transporter warrants that the

Transporter will have in place the insurance required in terms of clause 12, and agrees

that breach of this warranty will render him personally, jointly and severally liable with the

Transporter, to Gert en Rina Logistiek CC, for any loss of or damage to Products as

envisaged in that clause.

SIGNED at ________________________ on this _______ day of __________________

20_____.

AS WITNESS:

(1)_______________________________

(Name of witnesses in block letters)

(2)_______________________________ ________________________________

(Name of witnesses in block letters) For Gert en Rina Logistiek CC

(Duly authorised)


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SIGNED at ________________________ on this _______ day of __________________

20_____.

AS WITNESS:

(1)_______________________________

(Name of witnesses in block letters)

(2)_______________________________ ________________________________

(Name of witnesses in block letters) (Duly authorised to sign for and on

behalf of the Transporter)

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