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Terms & Conditions
RGS KENYA TERMS AND CONDITIONS OF CONTRACT
In an effort to always serve our clients and customers better whether in cargo clearing in Kenya, shipping services in Kenya or even logistics and freight forwarding services here are our terms and conditions:
By acceptance of services of RGS KENYA or Agents, Customer and any other party with an interest in the goods agree to these Terms and Conditions of Contract.
RGS KENYA’s Terms and Conditions are Subject to Change at RGS KENYA’s Sole Discretion Without Notice to Any Parties.
(A) The Cargo Owner being the owner and/or beneficial owner of the Cargo and/or Consignment the subject matter of this Agreement warranting at all times to have the authority of all persons owning or having an interest in the said Cargo and/or Consignment and holding all valid licences and having complied with all statutory provisions and being of good repute financial standing and professional competence;
(B) The Cargo Owner shall at all times and for the purposes of this contract be deemed to be the owner of the Consignment in unencumbered property or the agent of the owner and or other interested party; and
(C) RGS KENYA having the capacity to operate a fleet of motor vehicles and provide logistical support to the Cargo Owner to deliver the Cargo and/or Consignment to a pre-agreed destination(s) hereby agrees to undertake the work (hereinafter referred to as “the Services”) on the terms and conditions set out in this Agreement.
(D) RGS KENYA and the Cargo Owner intend to give their cooperation secure footing by executing this Agreement on the date aforementioned having no intention whatsoever to
(i) grant imply or impose an exclusivity relationship or at all in any regard, or
(ii) create a partnership and/or agency relationship
NOW THEREFORE IT IS HEREBY EXPRESSLY AGREED AS FOLLOWS:
Article 1 – DEFINITIONS & INTERPRETATION
1.1.1 The following terms shall have the following meanings:
1.1.2 “Consignment” means goods in bulk or contained in one parcel package or container as the case may be or any number of separate parcels packages or containers transported in one load from the point of delivery to the point of destination.
1.1.3 “Container” means a box of transport equipment (including refrigerated containers) of a permanent character specially designed to facilitate the carriage of goods by one or more modes of transport without intermediate re-loading and fitted with devices permitting its ready handling storage and transfer.
1.1.4 “Damage” includes loss partial loss or other damage of whatsoever nature arising out of or in connection with the services rendered under this Agreement or incidental thereto.
1.1.5 “Equipment Interchange Report” (hereinafter “EIR”) means a report on the condition or description of a container.
1.1.6 “Goods” includes goods wares merchandise and articles of every kind whatsoever except live animals radioactive material and explosives shipped in Containers.
1.1.7 “Notice”: Notice complying with the terms of Article 20.
1.1.8 “Normal Working Day” means the hours of 8.00am to 12.30pm and 200pm to 5.00pm of any Working Day.
1.1.9 “Port” means Kilindini Harbour and any other port that may be so designated under this agreement mutually and in writing by the parties.
1.1.10 “Stuffing/Destuffing” means the process of loading and discharging and shall include all and any handling and any other duties which shall be undertaken by the RGS KENYA, its servants and/or agents.
1.1.11 “Term” means all that period as more particularly set out at Article 2.
1.1.12 “TEU” means twenty foot equivalent unit.
1.1.13 “Territory” means Kenya, Uganda, Rwanda, Burundi or Republic du Congo [delete as appropriate].
1.1.14 “Vehicle” means any and/or all those motor vehicles, trucks and/or trailers which shall be provided by the Cargo Owner under this Agreement and which shall meet all the specifications outlined herein.
1.1.15 “Working Day” means any day other than Sunday or a gazetted Bank or Public Holiday.
1.2 The Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
1.3 The words imparting the singular only shall also include the plural and vice versa where the context requires
Article 2 – PERIOD OF AGREEMENT
2.1 This Agreement shall commence and take effect from ……………..to …………… and shall remain in full force and effect for the Term as set out hereafter and may be renewed by mutual agreement in writing between the parties.
2.2 This Agreement shall be for a term of Two (2) years effective from the Commencement Date. Thereafter there shall be an option to renew the Agreement on the same terms on mutually agreeable rates and tariffs.
2.3 This agreement shall be terminable at any time without notice by either party in the event of gross irremediable or repudiatory breach of contract by the other party. In the event of an irremediable breach of any term of this contract, the aggrieved party shall give to the other party notice of the immediate termination of this contract.
2.3.1 The meaning of an irremediable breach includes but is not limited to acts of fraud any inability to transact business with local or central government and/or any other authority withdrawal of licences and permits freezing of bank accounts and/or the closure of operations/ offices for whatever reason.
2.4 This Agreement shall be terminable on three (3) month’s notice in writing given by either party.
2.5 This agreement shall automatically terminate in the event that either party enters into compulsory or voluntary liquidation (save for purposes of reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things.
Article 3 – CARGO OWNER’S OBLIGATIONS
3.1 The Cargo Owner shall notify RGS KENYA of the expected time of arrival of any consignment the subject matter of this Agreement as early as possible and in any event not later than 7 days before the Expected Time of Arrival of the said Consignment PROVIDED all clearance documents are provided to RGS KENYA not later than 48 hours before the Expected Time of Arrival. In default all resultant Kenya Port Authorities, Shipping Line and/or other resultant penalties to be borne by Cargo Owner.
3.2 Immediately upon releasing the shipping and clearance documents to RGS KENYA the Cargo Owner shall avail funds to settle clearance charges due to all appropriate authorities.
3.3 The Cargo Owner shall at all times endeavor to ensure that the Cargo/Consignment delivered to RGS KENYA is consistent with the quantity, quality, weight state and all other particulars as described in the Delivery note.
3.4 The Cargo Owner confirms that he/she/they have given instructions to the Clearing & Forwarding Company as set out at Page 1 of the Agreement who is fully authorised to bind the Cargo Owner herein.
3.4 To make payments promptly as more particularly set out at Article …………..
Article 4 – RGS KENYA’S OBLIGATIONS
4.1 RGS KENYA shall provide the services herein as follows:
4.1.1 To employ and pay adequate and qualified staff for the purpose of availing logistical support to the Cargo Owner for purposes of transporting handling and/or dealing with the Cargo and/or Consignment from the point of Departure to Destination;
4.1.2 To source and obtain reliable transporters for purposes of transporting handling and/or dealing with the Cargo and/or Consignment from the point of Departure to Destination;
4.1.3 To comply with legislative requirements in Kenya.
4.1.4 To handle and store all containers entrusted into its care within the period and at the fees set out in the annexed Schedule I.
4.2 The Sub-contractor may assign transfer or subcontract the Agreement the performance and/or benefit of this Agreement whether wholly or partly to any person firm or RGS KENYA in accordance with the provisions of this agreement.
4.2.1 PROVIDED that the Sub-contractor shall remain liable in all particulars to the RGS KENYA in accordance with the provisions and performance of this Agreement.
Article 5 – SERVICES
5.1 RGS KENYA whether by itself or through its agents shall load cargo and/or consignments as the case may be during Working Hours only;
5.2 All Containers and Goods shall be handled on a “said to contain” basis and shall be handled in accordance with the Shipper’s Load Stow Count Weight and where applicable, Temperature instructions.
PROVIDED ALWAYS and subject only to written express instructions RGS KENYA shall handle and store all goods and cargo at its discretion. All goods and cargo without exception will be handled and stored by the Company strictly at OWNER’s RISK.
5.3 RGS KENYA shall be entitled to unpack and/or dispose at the Cargo Owner’s risk in any situation whatsoever, whether or not existing or anticipated before the Commencement Date which,
5.3.1 has given or is likely to give rise to danger injury loss delay or disadvantage of whatsoever nature to any property; or
5.3.2 has rendered or is likely to render in any way unsafe impracticable unlawful or against the interest of the company in any way.
5.4 In the event of there being damaged goods,
5.4.1 These shall be destroyed and/or disposed of in the manner prescribed by their manufacturers or the entity responsible for packaging the same and in any event by a method acceptable to the relevant Kenyan Authorities as the case may be.
5.4.2 In cases of emergency or for the purpose of securing the better safety of any property RGS KENYA whether by itself or through its agents may whenever it may seem expedient so to do, destroy or otherwise dispose of goods injurious to health or harmful in any other way within the depot without compensation to the Cargo Owner and/or Owner of the goods.
5.4.3 At all times any such destruction shall be done on the behalf of and at the cost of the Cargo Owner.
5.5 RGS KENYA shall be entitled to upon receiving directions from any authorities including but not limited to the Customs & Excise Department Public Health Officials Kenya Bureau of Standards Kenya Police and/or the Local Authority, shall make available any Consignment Container and/or Cargo for their inspection.
5.5.1 In the event of such direction as set out at Article 5.5
126.96.36.199 The Company shall not be liable for any loss or damage incurred as a result of such opening unpacking remeasurement revaluation repacking and/or inspection.
188.8.131.52 The Company shall be entitled to recover the cost of such opening unpacking remeasurement revaluation repacking and/or inspection from the Consolidator.
Article 6 – LIABILITY
8.1 RGS KENYA shall not be liable to the Cargo Owner for loss or damage to the Cargo Owner’s property and/or its principal’s property save where such loss or damage is due to the proven negligence and/or other failure of RGS KENYA to perform obligations under this Agreement PROVIDED THAT and without prejudice to the foregoing written notice shall be rendered to RGS KENYA within a period not later than three (3) months from the date of delivery of the Cargo and/or Consignment.
8.2 In the case of any actual or apprehended loss or damage the Cargo Owner shall give all reasonable facilities to RGS KENYA for the purposes of inspecting the goods and shall provide any and all documentation information and/or any other evidences that RGS KENYA may so require. PROVIDED ALWAYS THAT RGS KENYA shall not be responsible for loss or damage arising or resulting from Act of God, Act of War, Act of public enemies, Quarantine restrictions, Strikes or lockouts or stoppage or restraint of labour from whatever cause whether partial or general, Wastage in bulk or weight or any other loss or damage arising from inherent defect quality or vice of the goods, Insufficiency of packing, Insufficiency or inadequacy of marks, Latent defects not discoverable by due diligence, Fire unless caused by the actual fault or privity of RGS KENYA
Article 9 – PAYMENT
9.1 RGS KENYA shall charge the Cargo Owner for services rendered under this Agreement or incidental thereto at the rates and tariffs set out at Schedule I.
9.2 RGS KENYA shall raise an invoice per completed transaction.
9.3 Payment shall fall due immediately all supporting documents duly confirming that the services herein have been performed are submitted to the Company.
9.4 Payment shall be in arrears and in any event shall not be rendered later than 30 days from the date of invoice and/or statement for services rendered.
Article 10 – GENERAL AND PARTICULAR LIEN
10.1 All documents relating to the Consignment shall be held by the RGS KENYA on the behalf of the Cargo Owner who shall at all times be deemed to be the beneficial owner.
10.2 However, in the event of any outstanding monies remaining unpaid following one month’s written notice given to the Cargo Owner RGS KENYA shall be entitled to sell by auction or otherwise at its sole discretion and the net proceeds shall be applied in or towards satisfaction of the outstanding liability and/or debt(s) the excess whereof shall be refunded to the Cargo Owner.
Article 11 – INSURANCE
11.1 The Cargo Owner shall take out in his/her/its/their own name appropriate policies of insurance.
Article 12 – CONFIDENTIALITY
12.1 Unless where expressly required by Statute, this Agreement, its terms and purport shall not be divulged to any third party or at all either in part or in its entirety.
12.2 Any commercial financial or technical information which may become available to either party in the performance of this Agreement shall not be divulged to any third party or at all.
Article 13 – FORCE MAJEURE
13.1 Both parties shall be released from their respective obligations qua themselves in the event of national emergency war act of principalities prohibitive governmental regulation destruction of facilities by lighting earthquake storm flood tempest or fire labor disturbances or of any other cause beyond the reasonable control of the parties or either of them rendering the performance of this Agreement impossible whereupon all money due under this agreement shall be paid immediately and in particular:
13.1.1 All payments due to the Company and in arrears.
13.1.2 Each party shall be liable to pay to the other damages for any breach of this agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement PROVIDED ALWAYS that the affected party or both of them shall give written notice immediately upon becoming aware of an event of force majeure and in any event not later than seven (7) days of becoming so aware.
13.2 In default of performance attributable to Force Majeure for a period exceeding four (4) weeks the party not in default shall be entitled to terminate this Agreement.
Article 14 – SEVERANCE
If any provision of this Agreement is declared by any judicial or other competent authority to be void voidable illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authorities the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality PROVIDED ALWAYS that the remaining provisions of this Agreement shall remain in full force and effect.
Article 15 – ARBITRATION
15.1 All disputes which shall at any time arise between the parties and which disputes shall be incapable of amicable resolution whether during the Term or afterwards touching on or concerning this Agreement or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this Agreement shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the Chairperson for the time being of the Institute of Chartered Arbitrators in accordance with the Arbitration Act, 1995 or any statutory modification or re-enactment of it for the time being in force.
Article 16 – RIGHTS CUMULATIVE
16.1 All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
Article 18 – WAIVER
18.1 The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequent to enforce all terms and conditions of this Agreement.
Article 18 – AGREEMENT & AMENDMENTS
18.1 This Agreement superceeds any and all other agreements or contracts previously entered into between the RGS KENYA and the Consolidator.
18.2 All amendments shall be made by mutual agreement and no change in modification of and/or addition to the terms and conditions of this Agreement shall be valid unless embodied in a memorandum or other written notice executed by both parties herein.
Article 19 – NOTICES
19.1 All and any notices to be served or delivered to either party shall be in writing and may be sent by prepaid recorded delivery personal service registered post by electronic mail and or facsmile and shall be deemed to have been received by the addressee within three (3) days of posting or 24 hours if sent by electronic mail or facsmile to the correct facsmile (with correct answerback) or correct electronic mail number of the addressee.
Article 20 – JURISDICTION
20.1 This Agreement shall be governed by Kenyan Law in every particular including formation and interpretation and shall be deemed to have been made in Kenya.
20.2 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in Kenya