[Last Updated: December, 2017]
TERMS AND CONDITIONS OF CARRIAGE
1.1 “courier” means the courier service provided herein or by an independent courier service provider for the transport of goods in terms of these general terms and conditions, relating to the receipt, collection, transport and delivery of the goods, and all related activities undertaken by the Courier service provider in the performance of the service to the Company and/or Consignee;
1.2 “Company” means Jemi Courier, or the Franchisee or any subsidiary thereof, and all separate and independent legal entity but part of the extensive Franchise Network owned and operated by Jemi Courier Ltd;
1.3 “chargeable mass” means the greater of the actual or the volumetric mass of a parcel, given that the volumetric weight of a parcel shall be calculated based on prevailing mean market rates
1.4 “Customer” means the party reflected on the dispatch document as the sender of the goods, whether acting on his own behalf or in his capacity as an agent or in any other capacity for a third party;
1.5 “Consignee” means the recipient of the goods, as indicated on the waybill, by the Customer;
1.6 “agreement” means the agreement reached between the Company and the Customer for the Courier of the goods subject to these general terms and conditions for the courier of goods at the time that the waybill is signed by the Customer;
1.7 “goods” means the article or parcel forming the subject matter of the agreement, whether contained in one or more parcels or packages, containing products, items or documents of whatsoever nature, and whether consigned singly or in parcels or in bulk;
1.8 “handling of the goods” includes the goods being handled, warehoused, held, controlled, loaded or unloaded, carried or otherwise possessed by the Company for any purpose whatsoever;
1.9 “waybill” means the pre-printed, written or electronic document prepared by the Company and completed and signed or accepted by the Customer, containing the written or electronic instructions of the Customer for the courier of the goods, and forming the written or electronic agreement between the parties, subject to these general terms and conditions.
2. NO VARIATION OF CONDITIONS
The handling of the goods shall be subject to the conditions stated herein unless specifically varied by the Company in writing, which shall at all times take precedence over any terms, conditions or stipulations contained in any of the Customer’s documentation but only subject to the law at the prevailing time. Should the Customer purport to attach any conditions which vary, amend or are in conflict with the conditions set out herein, then, notwithstanding anything to the contrary stipulated by the Customer, the conditions set forth herein shall prevail and be of full force and effect unless specifically varied in writing with specific reference to the Customer’s contrary documentation, and signed and accepted by the Company.
3. MANNER OF COURIER SERVICE
3.1 The Company shall, through the Courier service and at its sole discretion, determine the carrier, methods of transport, handling and route for the courier of the goods;
3.2 The Company reserves the right to employ sub-contractors or agents to act for it. Where, and in the event that the Company so employs independent third parties to perform all or any of the functions required of the Company:
3.2.1 The Company shall have no responsibility or liability to the Customer for any acts or omissions of such third parties, even though the Company may be responsible for the payment of the third party’s charges;
3.2.2 The terms and conditions stipulated by such independent third party in respect of the courier of the goods shall be binding on the Customer as if specifically incorporated in the agreement, except if in conflict with the terms of this agreement, in which this agreement shall prevail;
3.2.3 In the event that the Company is suitably indemnified against all costs (including but not limited to attorney and own clients costs) by the Customer, the Customer authorises the Company to take any such necessary action to contest, defend and/or compromise against any claim and/or action brought by a third party in respect of any act or mission of the Customer in relation to the goods.
3.3 Unacceptable Shipment
3.3.1 A shipper’s shipment declaration for transportation is deemed unacceptable if:
- Packaging is defective or inadequate hence does not meet the required local & international Standards
- Customs declarations are not made or are not in place as per customs regulations
3.3.2 Special Shipment
A shipper’s shipment declaration for transportation is deemed special if:
- Shipment contains or is suspected to contain, weapons, explosives, currency, animals, precious metals or stones, real or imitation firearms, drugs/illegal narcotics, human remains, pornography.
- It’s classified as dangerous goods, hazardous materials, prohibited or restricted articles by IATA/ICAO/ADR, any applicable government department or relevant national and international organizations.
Special shipment may be carried after the customer displaying sufficient cause and enabling laws, licences, permits etc for such shipment of the special goods to be carried by the company.
3.3.3 Pre-Shipment Inspection
As part of shipment acceptance procedures, Jemi Courier Ltd has the right to open and inspect a Shipment without notice or approval to determine the true identity of its contents.
3.3.4 Shipment Insurance (Generate Insurance Form)***
The Company can arrange insurance for shippers covering the actual cash or invoice value in respect of loss of or physical damage to the shipment. This is provided that the Shipper requests for it, completes the insurance cover form and pays the applicable premium prior to shipment acceptance.
Shipment insurance does not cover indirect loss or damage, or loss or damage caused by delays unless otherwise stated.
4 CARRIER CHARGES
4.1 In the absence of any written agreement to the contrary, the remuneration payable to the Company by the Customer shall be in accordance with the standard tariffs of the Company calculated on:
- The chargeable weight of the goods;
- The destination of the goods;
- The service level selected by the Customer for the courier of the goods;
4.2 The Company’s standard tariffs are subject to review by the Company without prior notice to the Customer;
4.3 The Customer shall be liable for any duty, tax, fine or other outlay of whatsoever nature levied by authorities at any port or place in connection with the goods, and shall reimburse the Company for any such amount sustained by the Company in connection therewith;
4.4 In the event of the Company being obliged to take out or obtain any licenses or permits or to comply with any lawful authority, the Company shall be entitled to make an additional charge to cover any expenses resulting therefrom if not already included;
4.5 In the event that the Company is required, due to circumstances including but not limited to natural disasters, strikes, lock-outs, war, civil unrest and other such occurrences, to change the routing of the courier of the goods, resulting in additional charges, the Company shall be entitled to recover such additional charges from the Customer or the Consignee;
4.6 The tariff shall be payable to the Company:
4.6.1 Where the Customer does not hold an approved account with the Company – payment of the tariff shall be made in full, upon receipt/acceptance of the goods by the Company and the signature or e-signature of the waybill by the Customer;
4.6.2 Where the Customer holds an approved account with the Company – payment of the tariff shall be made in strict accordance with the trading terms extended in terms of the operation of the account;
4.6.3 Where the tariff is payable by the Consignee – the Company shall only accept the goods for courier where the tariff is payable by the Consignee where the Consignee holds an approved account with the Company, which account is in good standing, and where the Consignee has provided its written authorization for it’s account to be used for the Courier of the goods;
4.6.4 No cash on delivery consignments will be accepted by the Company unless under special written terms executed by the company;
4.7 Notwithstanding the provisions of 4.6 above, the Customer shall remain liable to the Company for all charges and lawful expenses incurred by the Company in providing the service to the Customer, should the said charges and expenses not be recovered from the Consignee on delivery of the goods, or in the event of the Consignee failing to pay the related charges for any reason whatsoever.
4.8 Jemi Courier’s Liability
4.8.1 Jemi Courier’s liability is strictly limited to the per kilo limits in this Section, direct loss and damage only. All other types of loss or damage are excluded. This includes but is not limited to lost profits, income, interest, future business or whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to Jemi Courier’s attention before or after acceptance of the Shipment.
4.8.2 Jemi Courier’s liability in respect of any one Shipment transported is limited to its actual cash value and shall not exceed:
a) USD 20.00 per kilogram for shipments transported by any transport mode other than road
b) USD 10.00 per kilogram for shipments transported by road.
4.8.3 Claims are limited to one claim per Shipment settlement of which will be the full and final settlement for all loss or damage in connection therewith. If the Shipper regards these limits as insufficient he/she must make a special declaration of value and request insurance as described in Section 3 (Shipment Insurance) or make their own insurance arrangements. Failure to do this, Shipper assumes all risks of loss or damage.
5 PAYMENT OF THE REMUNERATION
5.1 In the absence of any special provisions to the contrary, payment shall be effected by the Customer in cash or by way of an electronic funds transfer into the Company’s nominated bank account in advance or against tender of the goods by the Customer to the Company for the courier service, or in terms of the credit terms extended in respect of a validly held and operated account, that is in good standing;
5.2 The Company shall in its absolute discretion, be entitled to appropriate all payment made by the Customer towards the payment of any debt or obligation of whatsoever nature owing by the Customer to the Company, irrespective of when or the manner in which such debt arose;
5.3 Interest will accrue on all payments not made on due date at the rate of 5% per month from the due date for payment to the date on which payment is effected;
5.4 The Customer may not raise any claim, dispute or counter-claim as a reason for deferring payment and may not withhold any payment or set-off any claim or counter-claim which it may wish to raise against the amount charged by the Company for the courier of the goods.
5.5 Shipment Claims & Time Limits for Claims
5.6 All domestic and International claims must be submitted in writing within seven (7) working days from the date that Jemi Courier accepted the shipment. If this period EXPIRES Jemi Courier shall have no liability whatsoever.
5.7 Upon receipt of any claim, the company shall undertake all necessary inquiries and investigations and compile a claim report outlining the company’s apportionment of liability if any and the claim shall be settled according to the reported apportionment.
a) Domestic claims shall be paid within thirty (30) days from the date of receipt of the claim report.
b) International claims shall be paid within sixty (60) days from the date of receipt of the claim report.
6 CARRIER’S LIEN
6.1 As security for all monies owing, whether past or present, for the courier of any goods subject to these general terms and conditions, whether forming the subject matter of the agreement or otherwise, the Company shall have a lien over all goods, documents as well as all repayments, refunds, claims or recoveries in its possession or under its control;
6.2 The Company shall be entitled to hold all goods as security for any monies owing to it by the Customer from any cause whatsoever;
6.3 Notwithstanding that credit may have originally been granted by the Company to the Customer, the Company may at any time, at its sole discretion, retain possession of any goods pending the discharge of all the Customer’s indebtedness to the Company, whether or not such indebtedness is related to the courier of the goods or not;
6.4 In the event that the Company retains possession of the goods in terms of 6.1, 6.2 or 6.3 above, the Company shall be entitled to store the goods at such place as it deems fit, at the Customer’s expense;
6.5 If any monies owing to the Company are not paid by the Customer within 30 days after they are due, the Company shall be entitled, without further notice to the Customer:
6.5.1 To open and examine the goods;
6.5.2 To sell the whole or any part of the goods in such manner and on such conditions as it deems fit;
6.5.3 To apply the proceeds of any sale, after deducting all expenses thereof, in payment or reduction of any amount due by the Customer to the Company (including storage costs envisaged in 6.4 above, provided that any surplus shall be paid over to the Customer without interest immediately after the sale, if the Customer’s address is known, and if not, upon demand made by the Customer within 90 days of the sale;
6.6 The Company shall not be liable for any loss, damage or deterioration of such goods attributable to the implementation of this clause;
6.7 The Company’s rights under this clause are not exhaustive and are in addition to any other rights which it may have against the Customer.
6. 8 Circumstances beyond Jemi Courier’s Control
Jemi Courier is not liable for any loss or damage arising out of circumstances beyond Jemi’s control.
These include but are not limited to:- electrical or magnetic damage, erasure of, electronic or photographic images, data or recordings; any defect or characteristic related to the nature of the Shipment, even if known to Jemi; any act or omission by a person not employed or contracted by Jemi - e.g. Shipper, Receiver, third party, customs or other government official; “Force Majeure” - To be reviewed after every calendar year
7 CUSTOMER WARRANTIES AND INDEMNITIES
The Customer is bound by and warrants, in favour of the Company that:
7.1 The accuracy of the Consignee name, details, address for delivery, descriptions, values and other particulars furnished to the Company for customs, railage, delivery and other purposes. The Customer indemnifies the Company against all expenses, claims or fines arising from any inaccuracies or omission of descriptions, values or other particulars, even if the inaccuracy or omission of descriptions, values or other particulars occurs without negligence;
7.2 The courier of the goods will not violate or infringe any Act, regulation or Law, and the Customer hereby indemnifies and holds the Company harmless against any claims and/or damages which the Company may suffer by virtue of the Customer’s breach of this warranty;
7.3 The goods are the Customer’s sole property, alternatively, the Customer is authorised by the owner, to enter into the agreement subject to these general terms and conditions, and indemnifies the Company against any claim of any nature made by the owner, or any third party;
8 CONDITIONS OF GOODS
The onus of proving the quantity, type, physical properties, composition and/or condition of the goods and/or the condition of any container thereof, at the time of receipt thereof by the Company shall strictly at all times remain with the Customer. The delivery note, receipt or other document furnished or signed at such time by or on behalf of the Company shall not constitute conclusive proof thereof. The parties agree that it is the presumption that the condition of the goods at the time of delivery to the Consignee is the same as at the time that the Company received the goods from the Customer, and the burden of proving otherwise lies with the Customer or the Consignee.
9 CONDITIONS OF COURIER
9.1 The goods shall be carried at the sole risk of the Customer (or owner). The Customer hereby exempts the Company from and indemnifies the Company against all liability of whatsoever nature, subject only to 6.8 above and 9.2 below, arising directly or indirectly from handling of the goods. This exemption and indemnity includes, but is not restricted to any liability for direct and/or consequential loss or damages arising from:
9.1.1 The loss of the goods;
9.1.2 Damage to the goods;
9.1.3 The failure to collect or deliver the goods timeously, adequately or at all or from or to the correct address;
9.1.4 from any other cause arising, whether any such liability, loss or damage is caused by or arises from breach of contract, negligence or gross negligence, on the part of the Company, its servants, agents, employees or otherwise;
9.2 In the event that the Customer suffers any damage or loss which is directly attributable to any act or omission by the Company, the Company may, at its sole discretion, re-imburse the Customer the tariff and related charges and costs charged by the Company to the Customer in respect of the courier of the goods;
9.3 The Customer is required to ensure that it has communicated any special conditions, instructions or requirements for the carriage of the goods, including delivery and/or storage instructions, time sensitive documents etc clearly and legibly in writing on the waybill accompanying the goods. No other instruction, whether verbal or written, shall be accepted as binding on the Company;
9.4 Any limited liability of the Company, as set out above, shall terminate on the delivery of the goods to the Consignee at the address as set out by the Customer on the waybill.
10.1 The Company shall, only if requested to do so in writing by the Customer, effect insurance on any goods carried by it for and on behalf of the Customer in terms hereof, at the Customer’s expense. Any such insurances effected by the Company shall be subject to the usual exceptions and conditions of insurance held by the Company as indicated by the insurer or underwriter accepting the risk, and shall be subject to the necessary and required insurance declarations as to the nature and value of the goods in respect of each consignment requiring insurance to be prepared by the Customer.
10.2 The Company shall not be required to effect a separate insurance on each consignment.
10.3 Should insurer dispute any liability for any reason, the customer shall have recourse against the insurer only, and the Company shall not be under any liability in relation thereto.
11 SOLE AGREEMENTS
This agreement constitutes the sole record of the agreement between the parties. The Company shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein or in manuscript on the waybill, which amendments must be signed by both parties accepting such amendments.
No addition to, variation of or agreed cancellation of this agreement shall be of any force or effect unless recorded in writing and accepted by the Company in writing.
13 INDULGENCES AND WAIVER
No relaxation or indulgence which the Company may grant to the Customer shall constitute a waiver of the rights of the Company and shall not preclude the Company from exercising any of its rights which may have arisen in the past or which might arise in the future.
14 APPLICABLE LAW
14.1 Any dispute about this agreement, including any dispute about its validity, existence, interpretation, rectification, breach or termination or any dispute about any matter arising out of this agreement, its avoidance, interpretation, rectification, breach or termination shall be determined according to the laws of the Republic of Kenya at the time in force.
15 ADDRESSES FOR SERVICE
15.1 The parties choose as their respective address for service in respect of all notices or court processes in respect hereof their address as set out on the waybill.
SPECIAL CONDITIONS RELATING TO SPECIAL, DANGEROUS, PERISHABLE, HIGH VALUE AND FRAGILE GOOD
16 DANGEROUS GOODS
Further and Subject to section 3.3 hereinabove, the following are the special conditions with respect to dangerous goods
16.1 “dangerous goods” shall include all hazardous, noxious, corrosive, inflammable or explosive materials or substances, or any other such products which may cause injury, infection, damage or harm, and which are considered by the Company to be dangerous;
16.2 Unless otherwise agreed in writing, the Customer warrants that the goods are fit to be handled and transported in the ordinary way, and are not dangerous;
16.3 Unless otherwise agreed in writing, the Company will not knowingly handle any dangerous goods;
16.4 The Customer shall be liable for all losses or damage caused to the Company and/or any third party by all goods handled, and hereby indemnifies the Company against any claims arising in connection therewith;
16.5 Should the Company agree to handle any dangerous goods for any purpose, the Customer shall:
16.5.1 Furnish the Company with a written declaration detailing the trade name, chemical composition and characteristics of the goods, which shall ; and clearly define the precise respects or circumstances in which the goods are dangerous; and
16.5.2 Shall ensure the goods bear the warning labels and declarations required in terms of the laws and regulations applicable to the transportation of dangerous goods;
16.5.3 Shall provide the Company with all of the necessary permits, licenses or other applicable documentation required for the transport of such goods, at its own cost;
16.5.4 shall provide the Company with the requisite handling, storage, spillage and clean-up documentation in respect of such dangerous goods, to accompany the goods during transit, for reference in the event of any disturbance, breakage, spillage or other compromise of the goods during transit;
16.6 If, in the opinion of the Company, any of the goods become a danger to any person or property, the Company shall be entitled to immediately and without notice to the Customer dispose of the goods in question in a safe and responsible manner or take any other steps as it in its sole discretion deems prudent to avert danger, in which event the Company shall not be liable under any circumstances for the value of the goods or for any other loss or damage, whether direct or consequential, suffered by the Customer as a result of such disposal, and still be entitled to recover from the Customer the remuneration due for the handling of the goods together with the related costs incurred in disposing thereof and any other related costs.
17 PERISHABLE, HIGH VALUE AND FRAGILE GOODS
17.1 The Customer shall not contract for the carriage of perishable and/or high value and/or fragile goods without prior declaration by the customer and a special written agreement entered, and in the event that the Customer does, without disclosing the details of the goods to the Company, the Company shall not be liable for any related loss or damage, howsoever arising;
17.2 In the event that the Company does accept such perishable, high value or fragile goods for carriage, the appropriate provisions of clause 6.8 shall apply .e.g. earthquake, cyclone, storm, flood, fog, war, plane crash or embargo, riot or civil commotion, industrial action.
17.3 Shipper’s Warranties & Indemnity
Shipper shall indemnify and hold the company harmless for any loss or damage arising out of Shipper’s failure to comply with any applicable laws or regulations and for Shipper’s breach of the following warranties and representations:-
a) All information provided by Shipper or their representatives is complete and accurate;
b) The Shipment was prepared in secure premises by Shipper’s employees;
c) Shipper employed reliable staff to prepare the Shipment;
d) Shipper protected the Shipment against unauthorized interference during preparation, storage and transportation to Jemi Courier;
e) The Shipment is properly marked and addressed and packed to ensure safe transportation with ordinary care in handling;
f) All applicable customs, import, export and other laws and regulations have been complied with; and
g) The waybill has been signed by Shipper’s authorized representative and the Terms and Conditions constitute binding and enforceable obligations of Shipper.
17.4 Delayed Shipments and Money-Back Guarantee
The Company will make every reasonable effort to deliver the Shipment according to the company’s regular delivery schedules, but these schedules are not binding and do not form part of the contract.
Jemi is not liable for any damages or loss caused by delays however certain services have a money-back guarantee which provides for a credit or refund for delay of all or part of the Shipment’s transport charges in some cases.
In such cases:
a) Jemi Courier will issue credit & refund upon receiving such claim from the customer as long as shipment complies fully with the Jemi Courier restrictions, in accordance to clause 5.5.
b) The Guarantee is exclusive of all other items, including, without limitation, fines, taxes or other charges resulting from returned shipment.
c) Claims for late deliveries, customer must notify Jemi Courier in writing or telephone within seven (7) working days from date of shipment acceptance.
d) Customer may not permit any other party to notify claims on their behalf nor assign claims to any other party.
e) Jemi Courier Guarantee will not apply where late delivery or failure is due to circumstances beyond our control. Refer to clause 6 (Circumstances Beyond Jemi Courier’s Control).
f) Jemi Courier may, without notice to Shipper/Customer, provide any state, country, international governmental organization or other relevant authority with full information about the shipment, including the identities of all parties which have any legal, financial or commercial interest in the Shipment.
18. Customs, Exports and Imports
Jemi Courier may perform any of the following activities on Shipper’s behalf in order to provide its services to Shipper:
a) Complete any document, amend product or service codes and pay any duties or taxes required under applicable laws and regulations.
b) Act as Shipper’s forwarding agent for customs and export control purposes and as Receiver solely for the purpose of designating a customs broker to perform customs clearance and entry and (3) redirect the Shipment to Receiver’s import broker or other address upon request by any person who Jemi Courier believes in its reasonable opinion to be authorized.
19. Deliveries and Undeliverable
a) Shipments cannot be delivered to Post Office boxes or postal codes. Shipments are delivered to the Receiver’s address given by Shipper (which in the case of mail services shall be deemed to be the first receiving postal service) but not necessarily to the named Receiver personally.
b) Shipments to addresses with a central receiving area will be delivered to that area.
c) If the Shipment is deemed to be unacceptable, has been undervalued for customs purposes, the Receiver cannot be reasonably identified or located, Receiver refuses delivery or to pay for delivery, Jemi shall use reasonable efforts to return the Shipment to Shipper at Shipper’s cost. Failing to which the Shipment may be released, disposed of or sold by Jemi without incurring any liability whatsoever to Shipper or anyone else, with the proceeds applied against service charges and related administrative costs and the balance of the proceeds of a sale to be returned to Shipper.