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Terms & Conditions of Service

EMPTY TRIPS CARRIER TERMS AND CONDITIONS

These terms and conditions read with our Privacy Policy[Wilmari1] [LK2]  (collectively the "Terms") set out the main terms and conditions applying to and governing the usage of the Platform by the Carrier.  By clicking on “I Accept” you are entering into these Terms and agree to abide by the terms and conditions set forth below. 

  1. DEFINITIONS

The capitalised words used in these Terms have a specific meaning.  For the purposes of these Terms the following words have the following meanings:

  1. "Admin Fee" means the portion of the fee payable to the Company by the Carrier for the provision of the Platform and related services. 
  2. "Bulk Listings" means listings for bulk trips contracted to a specific Carrier at agreed rates over a specified period, which may be subject to additional terms for such bulk listing. 
  3. "Cargo" means the goods, packages and/or parcels which are to be transported on a Trip.
  4. "Carrier", "you" means a User, which offers a Trip in response to a Listing posted on the Platform.
  5. "Carrier Fee" means the portion of the fee payable to the Carrier for a Trip.
  6. "Collection Point" means the location point/s stipulated by the Shipper on the Platform for the collection of the Cargo.
  7. "Company", "we", "our", "us" means Empty Trips (Pty) Ltd registration number 2020/844007/07.
  8. "Compromised Cargo" means Cargo which is designated as ‘discards’ by the Shipper. 
  9. "Confidential Information" means the business, operational, financial and technology systems information of either Party, whether in electronic, digital, mobile or hard-copy format, which is considered to be non-public information and which is not readily available to a competitor of or third party to that Party and which if accessed by such individuals without that Party's authorisation, could be damaging and harmful to that Party.
  10. "Content" means text, graphics, images, music, software, audio, video, information or other materials.
  11. "Delivery Point" means the location point/s stipulated by the Shipper on a Listing for the delivery of the Cargo.
  12. "Extended Road Deliveries" means a Trip, which due to the distance the Carrier must travel in order to reach the Delivery Point, may endure for up to 3 (three) business days. 
  13. "Force Majeure" means an event that prevents or delays a Party from being able to perform an obligation under these Terms, where such event would constitute force majeure, such as wars, insurrections, strikes, acts of God, governmental actions or controls, water restrictions or other causes beyond the control of a Party.
  14. "Good Industry Practice" means, in relation to a Trip and the manner in which the obligations of the Carrier are performed, the standards, practices, methods and procedures conforming to law, and exercising that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under similar circumstances.
  15. "Listing" means a request for transport of Cargo, that is listed on the Platform by a User, each Listing representing a single transaction.
  16. "Party/ies" means the Carrier and the Company, or both of them.
  17. "Platforms" means collectively, www.EmptyTrips.com and any other website, mobile or desktop application used to access Empty Trips and the Driver application connected to Empty Trips.
  18. "Prohibited Cargo" means any illegal, illicit or dangerous substances or goods, including stolen goods.
  19. "Service Levels" means the standards of performance to be achieved by the Carrier in performing a Trip as set out in clause 11 of these Terms.
  20. "Shipper" means a User that posted a Listing.
  21. "Trip" means the commercial conveyance of Cargo, originating out of a Listing.
  22. "Trip Fee" means the Carrier Fee plus the Admin Fee.
  23. "User" means a Carrier or a Shipper that completed the required Empty Trips account registration process.
  24. "Vehicle" means the vehicles utilised by the Carrier in performing a Trip.
  1. ACCOUNT REGISTRATION AND VETTING
    1. In order to become a Carrier, you are required to register an Empty Trips account. Only Users can access and quote on the Listings.  
    2. The Company retains the right to decline to register any person as a User on its Platforms, in its sole discretion.  Without limiting the generality of the aforegoing, before becoming a User, the Company will undertake a vetting process to determine whether you meet certain criteria, which may, without limitation, include requesting the following information and/or documents:
      1. a completed credit application;
      2. a signed surety, where applicable;
      3. current CIPC certificate of confirmation, or identification document in the event of a sole proprietor;
      4. tax clearance certificates;
      5. VAT number and VAT registration certificate (if not VAT registered, then a letter on a company letterhead stating not VAT registered);
      6. banking confirmation letter in the applicant’s name, which must be stamped by the bank and not older than 3 (three) months from date of application on the Platform;
      7. certified copies of the applicant’s directors identity documents; 
      8. certificate and detailed scorecard produced by an accredited B-BBEE rating agency; 
      9. proof of insurance; and
      10. financial statements and/or management accounts.
    3. You must provide all cooperation, information and documentation requested by the Company pursuant to any vetting process.
    4. The Company may determine certain requirements that you will need to meet when choosing a user name or password.  These requirements may be changed from time to time and you may be required to update your credentials.
    5. You must keep your username and password to access your user account a secret and must not disclose it to any third party.  If you suspect that someone has access your user account you must notify us immediately and without delay.
    6. You warrant that all information provided by you at any time to the Company or on the Platform, will be true, accurate, current and correct and you undertake to update your information when it changes, or as and when required.
    7. The person or entity which registers as a User must be the Carrier which will provide the Trips. No entity which acts as a transport agent or broker for a third party may utilise the Platforms.
    8. The User is solely responsible for anything done on the Platform using its user account.
    9. The Shipper agrees that the Company's decision to grant credit facilities to the Shipper is at the sole discretion of the Company. The Company shall have the right from time to time to reassess the Shipper's creditworthiness and reserves the right to withdraw or vary any credit facilities granted to the shipper at any time without prior notice.
  2. LICENCE[SP3]  AND INTELLECTUAL PROPERTY
    1. Subject to your compliance with these Terms, the Company hereby grants you a licence to use the Platforms.
    2. This licence does not grant you the right to sublicense or transfer any rights to any third party.
    3. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Empty Trips account. 
    4. If your Empty Trips account is cancelled, or if you cease to use the Platforms, we do not have an obligation to delete or return to you any of the Content you have posted to the Platforms or otherwise provided to the Company.
    5. All copyrights and trademarks, including source code, databases, logos, visual designs and Content on or relating to the Platforms are owned by the Company and protected by copyright, trademark and/or trade secret laws and international treaty provisions.  By using the Platforms you do not acquire any rights of ownership to any intellectual property.
    6. You acknowledge and agree that the Platforms, including all associated intellectual property rights (whether registered or unregistered), are the exclusive property of the Company, and you will not:
      1. remove, alter or obscure any intellectual property which is incorporated in or which accompanies the Platforms;
      2. use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any aspect of the Platforms, except as expressly permitted in these Terms. 
    7. When using the Platforms, you must not:
      1. decompile, reverse engineer, or otherwise attempt to obtain the source code of the Platforms or other software of the Company;
      2. modify the Platforms in any manner or form or to use modified versions of the Platforms;
      3. transmit files that contain viruses, corrupted files, or any other programs that may damage or adversely affect the operations of the Platforms;
      4. attempt to or otherwise bypass the security measures on the Platforms; and
      5. attempt to gain unauthorised access to the Platforms.
    8. Except for the licence granting under these Terms, nothing on the Platforms should be regarded as granting you any licence or right to use any intellectual property without the Company’s prior written permission.
    9. If you breach the terms of this clause 3, the Company will have the right to claim damages against you, including the right to claim special, incidental, consequential or indirect damages, loss of profits and loss of business as well as all legal costs on a scale as between attorney and own client
  3. LISTINGS
    1. Users will post Listings from time to time on the Platform and any potential Carrier that wishes to provide the Trip in such Listing, will be entitled to submit a quote via the Platform.
    2. The Carrier is required to disclose on the Platform the nature of other Cargo which may (if applicable) be on the Vehicle for the specified Trip.
    3. Once a Carrier’s quote is accepted, the Carrier will receive a transactional mail confirming the Trip (“Confirmation”). An unsuccessful Carrier will also receive a mail indicating that their quote was not successful. 
    4. The Carrier who has received Confirmation must perform the Trip.  A Carrier is not entitled to quote on behalf of a third party. 
    5. On receipt of a Confirmation the Carrier will be obligated to perform the Trip in accordance with the requirements and Carrier Fee stipulated on the Platform and is liable to pay the Admin Fee to the Company. 
    6. The Company reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason.
  4. CHARGES AND INVOICING
    1. The Carrier will complete each Trip for a Carrier Fee agreed on the Platform.   
    2. The Company will invoice the Carrier for the Admin Fee and the Carrier will invoice the Company for the Carrier Fee.
    3. The Company will pay the Carrier Fee (less the Admin Fee) to the Carrier 7 (seven) days from receipt of payment from the Shipper. 
    4. The Carrier agrees that the Company may set off the Admin Fee against the Carrier Fee. 
    5. The Carrier acknowledges and agrees that the Company will only pay the Carrier Fee: 
      1. if the Carrier has uploaded the Proof of Delivery ("POD") onto the Platform; and
      2. on receipt of payment from the Shipper.
    6. In the event that the Shipper raises a dispute, the Company will not be obliged to pay the Carrier until such dispute is resolved and payment is received from the Shipper.
    7. Notwithstanding clause 5.4 above, payment by the Company to the Carrier will be without prejudice to any claims or rights which the Shipper and/or the Company may have against the Carrier and will not constitute any acknowledgement by the Shipper and/or the Company as to the proper performance of the Carrier’s obligations under these Terms.
    8. In the event of a dispute relating to the Trip, the Carrier is still obligated to pay any undisputed amounts to the Company in accordance with the agreed payment terms.
    9. Unless stated to the contrary, the Trip Fee is exclusive of Value Added Tax ("VAT"), if applicable.   Other than for VAT, the fee payable to the Carrier will be inclusive of all other taxes imposed in respect of each Trip.
    10. The Company is entitled to set off any amounts which the Carrier owes under these Terms.
    11. The Company will not be responsible for any additional costs incurred by the Carrier in the performance of a Trip or the use of the Platform, without limiting the aforegoing, such additional costs may include:
      1. any fines and penalties for a failure to adhere to traffic laws or for any Vehicle damage;
      2. any claims by Shippers for damage to Cargo or delayed or failed Trips; or
      3. data costs incurred for the use of the Platform.
  5. CARRIER SUPPORT AND COMPLAINTS
    1. As part of the providing the Platform, the Company provides support regarding the use of the Platform.  The Company has the right to stop providing these support services to the Carrier if the Carrier is in arrears with any payments due to the Company.
    2. For any support requests or complaints, Carriers can click on the “talk to us” link on the Platform.
    3. The Company will endeavour to resolve any support requests and complaints within a reasonable time.
  6. CARRIER’S OBLIGATIONS
    1. The Carrier acknowledges that time is of the essence and timeous performance of a Trip is essential.
    2. The Carrier undertakes to maintain and implement all standards reasonably expected of a good corporate citizen.
    3. The Carrier must not load or transport any Prohibited Cargo.
    4. The Carrier must:
      1. perform each Trip in an efficient, workmanlike, professional, and safe manner, and will exercise due care and diligence at all times and in accordance with the Service Levels;
      2. in performing a Trip, act as an expert service provider and as such warrants and represents that it has the necessary attributes of skill, expert knowledge and resources skills, to carry out the requirements and perform the obligations imposed on it under these Terms and to perform each Trip in accordance with these Terms and Good Industry Practice;
      3. refrain from overloading a Vehicle;
      4. supply the Company with any documentation relating to the performance of each Trip which it reasonably requires within a reasonable time, including reports which may be requested from time to time in the manner, format and frequency required;
      5. annually submit to the Company a certificate and detailed scorecard produced by an accredited B-BBEE rating agency;
      6. provide all necessary information and cooperation in order for the Company to perform periodic audits of the Carrier’s compliance with its obligations under these Terms;
      7. comply with all applicable laws and requirements of any relevant authority regarding the performance of Trips, and will be responsible for obtaining all necessary licences, certificates, authorisations, and consents required under law for the performance of Trips and will ensure that its employees adhere to same.   A copy of any necessary licences, certificates, authorisations, and consents required under law for the performance of Trips must be provided to the Company upon request; 
      8. co-operate with the third party service providers of the Company; and
      9. at all times keep and maintain proper books of account in respect of its business insofar as same relate to the carrying out of its duties, functions and obligations under these Terms.
    5. The Carrier must instruct drivers to conduct a visual inspection of the Cargo at the Collection Point, if the driver is satisfied with quality and quantity of the Cargo and it satisfied that the Cargo is sufficiently sealed, the driver is required to sign a collection document. If the driver fails to sign a collection document it will be deemed that the Cargo was received in good condition in accordance with the Listing. In the event that the Cargo is materially different to the description provided by the Shipper in a Listing, the driver may refuse to load the Cargo at the Collection Point.  The Carrier must immediately notify the Company should this occur.
    6. The Carrier must ensure that drivers do not leave Cargo unattended and that the Vehicle is properly secured at all times, including in respect of necessary stops.
  7. DRIVERS AND EMPLOYEES
    1. The Carrier must:
      1. provide, at its cost, properly qualified and trained drivers for the Vehicles, complying in respect of the drivers, with statutory limits on working hours and paying not less than the minimum wages determined by a competent authority or by statute;
      2. ensure that drivers are provided with a working cell phone with sufficient connectivity and data and which is capable of operating the Platform and ensure that Drivers utilise the Platform on the phone whilst on a Trip – this is to enable the track and trace capability. The Company may stipulate certain cell phone specifications from time to time, in order to ensure that the Platform is accessible by drivers;
      3. provide training to its drivers and employees on the use of the Platforms;
      4. ensure that any other employees are suitable and appropriately qualified, trained, experienced, and where applicable, have the relevant certifications required to provide any specialised aspects of the Trips;
      5. ensure that its employees comply with any security requirements, site rules or reasonably instructions stipulated by the Company and/or Shipper at the Collection Points and Delivery Points;
      6. ensure that drivers submit to a comprehensive annual medical examination to ensure that they are fit for driving purposes;
      7. not, without the written consent of the Company knowingly permit any driver and/or employee:
        1. with a criminal record for drunken driving or reckless and/or negligent driving to drive the Vehicles; and
        2. with a criminal record involving dishonesty 

to partake in the performance of any Trip.

  1. ensure that the drivers and employees subject themselves to security checks by the  security personnel at Collection Point and Delivery Point and generally co-operate with the  security checks and investigations relating to security; 
  2. take all necessary reasonable steps to ensure that its employees do not engage in any demonstrations, or other disorderly or riotous conduct on, or near any of the Company or Shippers’ premises.
  1. The Company may prohibit a driver from using the Platform, in the Company’s sole discretion, if such driver has acted negligently in performing the Trips or is otherwise unsuitable for the Trips.
  2. VEHICLES

The Carrier undertakes to:

  1. provide sufficient Vehicles which are appropriately equipped to accommodate the Cargo and to perform each Trip;
  2. allow the Company's quality control employees and/or consultants to inspect the Vehicles at any time;
  3. ensure that the Vehicles are kept clean and in a presentable condition to the reasonable satisfaction of the Company;
  4. ensure that at all times the Vehicles are fully maintained, in good working order and in a proper state of repair so as to enable the Carrier to perform each Trip in a proper and efficient manner and so as to minimise any accidents, breakdowns, punctures or any failure whatsoever in the Vehicles; and
  5. obtain, maintain and renew annual licenses (including roadworthy certificates), as required by competent authorities, for the Vehicles.
  1. ACCIDENTS AND BREAKDOWNS

In the case of an accident and/or breakdown, the Carrier must:

  1. ensure that the driver immediately report the incident on the Platform;
  2. notify the Company immediately of the event;
  3. make the necessary arrangements to protect or to recover the Cargo;
  4. complete an incident report and submit it to the Company within 24 (twenty four) hours; 
  5. find a replacement Vehicle as soon as possible to minimise the impact on the Cargo and Shipper service levels; and
  6. where the Carrier is unable to secure a replacement Vehicle, the Carrier must immediately contact the Company in order to arrange for a substitute haulier at the Carrier's cost.
  7. SERVICE LEVELS
    1. The Carrier must perform each Trip in accordance with the following Service Levels:

On time arrival at site for loading:

  1. The Carrier must arrive at the agreed loading time.  A reasonable grace period will be given per Trip, however the Carrier will be liable for any additional charges applied by the Shipper.
  2. A grace period of 1 (one) hour of the stipulated loading time will be given per Trip.
  3. The Carrier must capture its arrival time for loading on the Platform.
  4. Poor on-time performance will be monitored on the Platform and be based on the ratings.

On-time at Delivery Point:

  1. The Carrier must arrive at the agreed off-loading time.  A reasonable grace period will be given per Trip, however the Carrier will be liable for any additional charges applied by the Shipper. 
  2. Once the Vehicle has been loaded, the Carrier must proceed to the Delivery Point by the most direct and safest route possible which is stipulated by the Platform. 
  3. Notwithstanding clause 11.7, the Company will be entitled to call upon the Carrier to follow a specific route (which may be an indirect route).
  4. With the exception of Extended Road Deliveries, attending at weighbridges and completing additional Trips, the Vehicles must not unduly, or for no good reason, stop between the Collection Points and Delivery Points, unless obliged to do so in an emergency or in compliance with law.  All exceptions must be communicated by the Carrier to the Company.
  5. To this end, the Carrier must ensure that Vehicles are properly fuelled and maintained prior to performing each Trip.
  6. The Carrier must capture its arrival time for delivery on the Platform.
  7. On time drop off at the Delivery Point will be measured on the Platform from the arrival times inputted by the Carrier on the Platform.
  8. RATINGS AND ACTIVITY
    1. In order to guarantee high-quality service and provide additional reassurance to Shippers, you hereby acknowledge that the Shipper may provide you a rating and leave feedback regarding the quality of the performance of the Trip on the Platform.  Your average rating will be linked to your user account and will be visible to other Users on the Platforms.  If, in the Company’s sole discretion, the rating or comment is not given in good faith, such rating or comment may not be projected in the calculations of your average rating.
    2. In addition to the rating, the Company measure your level of activity and provide you with an activity score, which is based on your activity regarding responding to and submitting quotes in respect of Listings.
    3. In order to provide reliable services to Shippers, we may determine a minimum average rating and a minimum activity score that Carriers must establish and maintain.  If, after a pertinent notification from us, you do not increase your average rating or activity score to the minimum level within the prescribed time period, your usage of the Platform will be automatically suspended and/or terminated, either temporarily or permanently.  We may reverse the suspension of your account if it is merited by any external circumstances, or it is detected that the suspension was caused by a system error or false ratings.
    4. The Carrier may provide a rating for the Shipper, based on the criteria available on the Platform.  
    5. The Carrier undertakes to provide only true, honest and accurate ratings.
    6. We may delete or remove any rating, in our sole discretion, where it is detected that there was a system error or false ratings were provided.  In the event that the Carrier persistently provides false or inaccurate ratings, the Carrier’s account may, in our sole and absolute discretion, be suspended or terminated.
  9. SUBCONTRACTING
    1. The Carrier will not, without the prior written consent of the Company in each instance cede or assign any of its rights or obligations in terms of these Terms, including but not limited to, the right to receive payment from the Company, to any third party.
    2. Any such consent will not relieve the Carrier of any of its obligations and the Carrier shall at all times be liable for the acts and omissions of its employees, agents, sub-contractors, cessionaries, assigns or any other associated party utilised by it in provision of the Services, as if they had been acts and omissions of the Carrier.
  10. RISK
    1. The Carrier acknowledges and agrees that the risk of loss and/or damage in and to the Cargo will pass to the Carrier once the loading of the Cargo onto the Vehicle has been completed and the risk will remain with the Carrier until such time as the off-loading process commences at the Delivery Points. 
    2. It is recorded that the Cargo is either owned by the Shipper or a third party. In the event of damage to the Cargo or the Cargo being compromised, during the period the risk lies with the Carrier, the Parties agree (and the insurance obligations referred to in clause 15 below will be subject to these provisions) that:
      1. the Carrier will immediately notify the Company of the loss and/or damage to the Cargo;
      2. the Shipper will be entitled to instruct whether it wants to recover all Cargo, or salvage or dump any damaged and/or Compromised Cargo, if applicable; and
      3. the Shipper will be entitled, as part of its damages, to recover from the Carrier the cost value of any damaged or Compromised Cargo, and any reasonable costs directly related to the dumping or salvage costs.
    3. Neither the Carrier nor its insurer, will be entitled to any rights of salvage in respect of the Cargo.
  11. INSURANCE

The Carrier agrees to procure and maintain at its sole cost and expense public liability, goods in transit insurance, to the Company’s reasonable satisfaction, with adequate indemnity limits to cover its obligations, responsibilities and liabilities under these Terms, and to provide proof of such insurance policy/ies in the form of a letter from its insurance brokers clearly confirming the insurances are in place to the Company, on demand.

  1. HEALTH AND SAFETY
    1. The Trips must be performed in a safe and responsible manner and to this end, the Carrier certifies that it is fully conversant with the provisions of the Occupational Health and Safety Act No. 85 of 1993 ("OHSA"), the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 ("COIDA") and the Labour Relations Act No. 66 of 1995 ("LRA"), as amended, and that its employees, agents and mandatories have similar knowledge.
    2. The Carrier warrants and represents that it is registered with the Compensation Commissioner in terms of COIDA, and that all its charges are fully paid up.
    3. The Carrier must cooperate with the Company and/or Shipper, and any safety officer, and/or any other person in charge of the relevant premises, and/or appointed to implement the provisions of the OHSA at such premises, and the Carrier must implement any reasonable instructions and directives issued by such person.
  2. FORCE MAJEURE
    1. Should any Party be prevented by reason of Force Majeure from performing its obligations in terms hereof, then such failure will not be regarded as a breach of its obligations in terms hereof provided that:
      1. the Party subject to Force Majeure shall give prompt verbal notice, confirmed thereafter in writing, to the other Party hereto of the nature and estimated duration of the Force Majeure concerned;
      2. the Parties must co-operate and collaborate together and use all reasonable efforts to overcome the Force Majeure concerned and/or nullify its effect; and
      3. any suspension of performance within the provisions of the above will be limited to the period during which such inability exists only.
    2. If the nature of the Force Majeure event substantially or permanently prevents the continued performance by either Party of its obligations in terms of these Terms for a period exceeding 15 (fifteen) consecutive days, then either Party will be entitled, by giving notice in writing to terminate these Terms and thereby access to the Platform.
    3. If as a result of Force Majeure the Carrier is unable to perform its obligations, then from the outset and until the Force Majeure ceases, or these Terms are cancelled, as the case may be, the Company shall be entitled to secure a Trip and/or performance from alternative carriers.
  3. RELATIONSHIP BETWEEN THE CARRIER, THE COMPANY AND THE SHIPPERS
    1. By providing the Platform, the Company acts as marketplace connecting Shippers with Carriers in order to deliver the Cargo efficiently.  
    2. The Carrier acknowledge that no employment agreement nor an employment relationship has been or will be established between any driver and the Company.   Nothing in these Terms will be deemed or construed as creating a relationship of principal and agent, employment, partnership or joint venture between the Carrier/driver and the Company.   The Carrier (and its drivers) may not act as an employee, agent or representative of the Company nor bind any contract on behalf of the Company.
  4. GOOD FAITH, ANTI-BRIBERY WARRANTY AND UNDERTAKING
    1. The Parties undertake to observe the utmost good faith, and they warrant in their dealings with each other that they will neither do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of the other Party.
    2. For the purpose of this clauses 19, "Associated Person" means in relation to the Carrier, a person who (by reference to all the relevant circumstances) performs services for or on behalf of the Carrier in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and subcontractor/s.
    3. The Carrier undertakes at all times to reasonably ensure that nothing which may be detrimental to the image, good name and reputation of the Company is done.
    4. The Carrier undertakes to comply with all applicable anti-bribery and corruption laws (collectively "the Anti-Bribery Laws"), and will reasonably procure that any Associated Person does the same.
    5. The Carrier must promptly report to the Company in writing upon becoming aware that it or any of its Associated Persons:
      1. has committed or may have committed a breach of this clause or of any Anti-Bribery Laws; or
      2. has received any request or demand for any undue financial or other advantage in connection with the performance of a Trip.
    6. The Company will comply with the obligations set out in clause 19.4 and 19.5, with the necessary changes, in favour of the Carrier.
  5. CONFIDENTIALITY
    1. The Parties undertake to maintain the confidentiality of all the Confidential Information and must not divulge or permit to be divulged to any person any aspect of such Confidential Information. In so doing, each Party hereby undertakes, as an irrevocable stipulation in favour of the other Party in order to protect the proprietary interests of that other Party in and to the Confidential Information that it will not, for so long as the Carrier is a User or after its termination:
      1. divulge or disclose to others in any form or manner whatsoever, either directly or indirectly, any of the Confidential Information; or
      2. use for its own benefit, or the benefit of any person in any form or manner whatsoever, directly or indirectly, any of the Confidential Information or information relating thereto.
    2. Either Party may require the employees, officers or agents of the other Party to sign a confidentiality undertaking in a reasonable form specified by that Party from time to time or have confidentiality provisions in its contracts with employees, officers or agents and no such person may be employed or involved in the conduct of the business between the Company and the Carrier as contemplated in these Terms until such confidentiality undertaking has been signed. Each Party will procure that its employees, officers or agents comply with the provisions of this clause 20, and will be liable for a breach by any employee, officer, agent as if it were a breach by that Party.
  6. PRIVACY
    1. An explanation on how the Company processes any of your personal information is contained in the Privacy Policy. 
    2. The Company has access to all personal information and other data provided or generated in connection with your use of the Platform.  The Company will take all reasonable steps to ensure the confidentiality and security of such data and comply with all applicable Privacy Policies and laws whenever such data contains personal information.   Except where otherwise provided by applicable Privacy Policies and laws, the Company will maintain access to such data even after these Terms between the Carrier and the Company is terminated.
    3. You have access to personal information and other data provided by you or generated in connection with your use of the Platform, you also have certain other rights to access the personal information we hold about you in this regard please refer to the Privacy Policy.
    4. The Carrier acknowledges and agrees that it is the responsible party in respect of the Shipper data. You must ensure that you maintain the security and confidentiality of all Shipper data (including personal information).   You must not share any Shipper personal information with any third party.
  7. TERM, SUSPENSION AND TERMINATION
    1. These Terms will become a binding agreement between us as of the date and time your online registration is submitted on the Platform.
    2. Further terms may become binding on you once the specific document or message has been made available to you and you commence or continue performing Trips on the Platform.
    3. Unless you have Bulk Listings, you may terminate these Terms at any time by notifying the Company at least 30 (thirty) calendar days in advance after which your right, as a Carrier, to use the Platform will terminate.  The Company may, in its sole discretion, suspend or terminate your account for any reason by providing you with 7 (seven) calendar days advance notice. In the event of suspension or termination for no cause, any Trip already agreed to between the Carrier and the Shipper at the time of suspension or termination will be completed and paid in accordance with the terms of these Terms. 
    4. In the event that you have contracted for Bulk Listings, you may terminate these Terms once the Bulk Listings have been completed and all outstanding amounts have been paid, after which your right, as a Carrier, to use the Platform will terminate. 
    5. The Company is entitled to immediately terminate your account, block your access to the Platform and inform you in writing of the termination without giving any advance notice if you breach these Terms or any other agreement between us, any applicable laws or regulations, disparage the Company, or cause harm to the Company’s brand, reputation or business as determined by the Company in our its discretion.  If this happens we may, at own our discretion, prohibit you from registering with the Platform again. 
    6. The Company may also immediately suspend (block) your access to the Platform for the period of an investigation, if it suspects an infringement of these Terms or fraudulent activity on your user account. The block of access will be removed once the investigation disproves such suspicions.
    7. The Company aims to provide the highest quality service to all Shippers and it therefore monitor the activity of Carriers on the Platform.  If the Carrier fails to meet the minimal service requirements, such as the minimal rating and activity score or Service Levels, the Company is entitled to immediately terminate these Terms without giving any advance notice.
    8. The Company may discontinue the provision of the Platform at any time and will use its best efforts to notify you 7 (seven) days prior to doing so.  In the event the Company does so, your access to the Platform and user account will terminate. 
  8. DISPUTE RESOLUTION
    1. Should any dispute or difference arise between the Parties relating to or arising out of these Terms, then either Party will be entitled to deliver written notice, setting out the issue/s in dispute, to the other Party requiring the other to meet and attempt to resolve the dispute.
    2. Within 10 (ten) days of the delivery of the written notice referred to in 23.1, a meeting will take place between any duly authorised Director of the Company, and the Chief Executive Officer, or a duty authorised director of the Carrier, and they will attempt, in good faith, to resolve the issue/s in dispute.
    3. Where the dispute remains unresolved for more than 5 (five) days following the date for the meeting referred to in clause 23.2 above, either Party may refer the matter to arbitration by delivering a notice to that effect to the other Party.
    4. Such arbitration will be held in Durban in accordance with the Uniform Rules of the High Courts of South Africa by an arbitrator agreed upon by the Parties, or failing agreement within 5 (five) days after arbitration has been demanded, appointed by the Chairman of the General Council of the Bar in the Republic of South Africa or its successor.
    5. The decision of the arbitrator shall be final and binding on the Parties.
    6. The provisions of this clause 23.6, will not be deemed to prevent or prohibit any Party from applying to the appropriate court of competent jurisdiction for urgent relief.
    7. A decision which becomes final and binding in terms hereof may be made an order of court at . the instance of any Party to the arbitration. Each of the Parties to the arbitration hereby submits itself to the jurisdiction of the KwaZulu-Natal Local Division of the High Court of South Africa, should any Party wish to make any decision of the arbitrator an order of court.
    8. The provisions of this arbitration clause will continue to be binding on the Parties notwithstanding the termination or cancellation of these Terms.
    9. Any arbitration will be conducted "in camera" and the Parties must treat as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration.
    10. The Parties agree that the demand to submit a dispute to arbitration in terms hereof will be deemed to be the required legal process to interrupt prescription in terms of the Prescription Act, 1969.
  9. USER CONDUCT
    1. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations that may apply to your use of the Platforms.
    2. The following actions shall automatically be material breaches of these Terms: <ol cla

EMPTY TRIPS SHIPPER TERMS AND CONDITIONS

These terms and conditions read with our Privacy Policy [ENS1] [LK2] (collectively the "Terms") set out the main terms and conditions applying to and governing the usage of the Platform by the Shipper.  By clicking on “I Accept” you are entering into these Terms and agree to abide by the terms and conditions set forth below. 

  1. DEFINITIONS

The capitalised words used in these Terms have a specific meaning.  For the purposes of these Terms the following words have the following meanings:

  1. "Admin Fee" means the portion of the Trip Fee due to the Company for the provision of the Platform and related services. 
  2. "Bulk Listings" means listings for bulk trips contracted to a specific Carrier at agreed rates over a specified period, which may be subject to additional terms for such bulk listing. 
  3. "Cargo" means the goods, packages and/or parcels which are to be transported on a Trip by a Carrier.
  4. "Carrier" means a User, which offers a Trip in response to a Listing posted on the Platform.
  5. "Carrier Fee" means the portion of the Trip Fee for the physical performance of a Trip.
  6. "Collection Point" means the location point/s stipulated by the Shipper on the Platform for the collection of the Cargo.
  7. "Company", "we", "our", "us" means Empty Trips (Pty) Ltd registration number 2020/844007/07. 
  8. "Compromised Cargo" means Cargo which is designated as ‘discards’ by the Shipper. 
  9. "Confidential Information" means the business, operational, financial and technology systems information of either Party, whether in electronic, digital, mobile or hard-copy format, which is considered to be non-public information and which is not readily available to a competitor of or third party to that Party and which if accessed by such individuals without that Party's authorisation, could be damaging and harmful to that Party.
  10. "Content" means text, graphics, images, music, software, audio, video, information or other materials.
  11. "Delivery Point" means the location point/s stipulated by the Shipper on the Platform for the delivery of the Cargo.
  12. "Force Majeure" means an event that prevents or delays a Party from being able to perform an obligation under these Terms, where such event would constitute force majeure, such as wars, insurrections, strikes, acts of God, governmental actions or controls, water restrictions or other causes beyond the control of a Party.
  13. "Listing" means a request for transport of Cargo, that is listed on the Platform by a Shipper, each Listing representing a single transaction.
  14. "Party/ies" means the Shipper and the Company, or both of them.
  15. "Platforms" means collectively, www.EmptyTrips.com and any other website, mobile or desktop application used to access Empty Trips.
  16. "Prohibited Cargo" means any illegal, illicit or dangerous substances or goods, including stolen goods.
  17. "Shipper", "you" means a User that posted a Listing.
  18. "Trip" means the physical conveyance of Cargo, originating out of a Listing.
  19. "Trip Fee" means the Carrier Fee plus the Admin Fee. 
  20. "User" means a Carrier or a Shipper that completed the required Empty Trips account registration process.
  21. "Vehicle" means the vehicles utilised by the Carrier in performing a Trip.
  1. ACCOUNT REGISTRATION AND VETTING
    1. In order to become a Shipper, you are required to register an Empty Trips account. Only Users can access the Platform and post Listings.
    2. The Company retains the right to decline to register any person as a User on its Platforms, in its sole discretion.  Without limiting the generality of the aforegoing, before becoming a User, the Company will undertake a vetting process to determine whether you meet certain criteria, which may, without limitation, include requesting the following information and/or documents:
      1. a completed credit application;
      2. a signed surety, where applicable;
      3. current CIPC certificate of confirmation, or identification document for sole proprietor;
      4. tax clearance certificates;
      5. VAT number and VAT registration certificate (if not VAT registered, then a letter on a company letterhead stating not VAT registered);
      6. banking confirmation letter in the Shipper’s name, which must be stamped by the bank and not older than 3 (three) months from date of application on the Platform;
      7. certified copies of the Shipper’s directors identity documents; and
      8. financial statements and/or management accounts.
    3. You must provide all cooperation, information and documentation requested by the Company pursuant to any vetting process.
    4. The Company may determine certain requirements that you will need to meet when choosing a user name or password.  These requirements may be changed from time to time and you may be required to update your credentials.
    5. You must keep your username and password to access your user account a secret and must not disclose it to any third party.  If you suspect that someone has access your user account you must notify us immediately and without delay.
    6. You warrant that all information provided by you at any time to the Company or on the Platform, will be true, accurate, current and correct and you undertake to update your information when it changes, or as and when required.
    7. The entity or person which registers as a User must be the Shipper which will post the Listing. No entity which acts as a transport agent or broker for a third party may utilise the Platforms.
    8. The User is solely responsible for anything done on the Platform using its user account.
    9. The Shipper agrees that the Company's decision to grant credit facilities to the Shipper is at the sole discretion of the Company. The Company shall have the right from time to time to reassess the Shipper's creditworthiness and reserves the right to withdraw or vary any credit facilities granted to the shipper at any time without prior notice.
    10. The Company may, in its sole discretion require the Shipper to provide security for its payment obligations under these Terms, such as a suretyship, guarantee or other form.  Such security shall be provided by the Shipper within 10 days of request by the Company and be in a substance and form approved by the Company in its sole discretion.  The costs and expenses incurred in preparing, completing, and maintaining the security shall be for the account of the Shipper.  Failure by the Shipper to provide any security required by the Company will entitled the Company to immediately withdraw any credit facilities and/or suspend (block) the Shipper access to the Platform.
  2. LICENCE AND INTELLECTUAL PROPERTY
    1. Subject to your compliance with these Terms, the Company hereby grants you a licence to use the Platforms.
    2. This licence does not grant you the right to sublicense or transfer any rights to any third party.
    3. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Empty Trips account. 
    4. If your Empty Trips account is cancelled, or if you cease to use the Platforms, we do not have an obligation to delete or return to you any of the Content you have posted to the Platforms or otherwise provided to the Company.
    5. All copyrights and trademarks, including source code, databases, logos, visual designs and Content on or relating to the Platforms are owned by the Company and protected by copyright, trademark and/or trade secret laws and international treaty provisions.  By using the Platforms you do not acquire any rights of ownership to any intellectual property.
    6. You acknowledge and agree that the Platforms, including all associated intellectual property rights (whether registered or unregistered), are the exclusive property of the Company, and you will not:
      1. remove, alter or obscure any intellectual property which is incorporated in or which accompanies the Platforms.
      2. use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any aspect of the Platforms, except as expressly permitted in these Terms. 
    7. When using the Platforms, you must not:
      1. decompile, reverse engineer, or otherwise attempt to obtain the source code of the Platforms or other software of the Company;
      2. modify the Platforms in any manner or form or to use modified versions of the Platforms;
      3. transmit files that contain viruses, corrupted files, or any other programs that may damage or adversely affect the operations of the Platforms;
      4. attempt to or otherwise bypass the security measures on the Platforms; and
      5. attempt to gain unauthorised access to the Platforms.
    8. Except for the licence granting under these Terms, nothing on the Platforms should be regarded as granting you any licence or right to use any intellectual property without the Company’s prior written permission.
    9. If you breach the terms of this clause 3, the Company will have the right to claim damages against you, including the right to claim special, incidental, consequential or indirect damages, loss of profits and loss of business as well as all legal costs on a scale as between attorney and own client
  3. LISTINGS
    1. The Shipper will prepare a Listing requesting quotes from Carriers to provide the Trip. 
    2. The Shipper will then receive quotes from Carriers in respect of the Listing.   It is the responsibility of the Shipper to ensure that its Cargo does not become contaminated and the Shipper determine whether the nature of the Cargo the Shipper wishes to transport may be with other Cargo which may (if applicable) be on the Vehicle used for the specified Trip.
    3. Once the Shipper accepts a Carrier’s quote via the Platform, the Carrier will receive a transactional mail confirming the Trip (“Confirmation”). 
    4. On receipt of a Confirmation the Carrier will be obligated to perform the Trip in accordance with the requirements and Carrier Fee agreed to by the Shipper on the Platform. 
    5. The Company reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason.
  4. CHARGES AND INVOICING
    1. The Company will invoice the Shipper for the Trip Fee on completion of the Trip. 
    2. The Shipper must make payment of all invoices within 30 (thirty) days or such other period as agreed between the Parties.
    3. In the event of a dispute relating to the Trip, the Shipper is still obligated to pay any undisputed amounts to the Company within the agreed payment terms referred to in 5.2 above.
    4. Unless stated to the contrary, the Trip Fee is exclusive of Value Added Tax ("VAT"), if applicable.   Other than for VAT, the Trip Fee will be inclusive of all other taxes imposed in respect of each Trip.
    5. The Company is entitled to set off any amounts which the Shipper owes under these Terms.
    6. The Company will not be responsible for any additional costs incurred by the Shipper in the use of the Platform, without limiting the aforegoing, such additional costs may include:
      1. damage to Cargo or delayed or failed Trips; or
      2. data costs incurred for the use of the Platform.
  5. COMPANY’S OBLIGATIONS
    1. As part of providing the Platform, the Company provides support regarding the use of the Platform.  The Company has the right to stop providing these support services to the Shipper if the Shipper is in arrears with any payments due to the Company.
    2. For any support requests, complaints, service level queries, account queries and disputes, Shippers can click on the “talk to us” link on the Platform.
    3. The Company will endeavour to resolve any support requests and complaints within a reasonable time.
    4. The Company also provides a tracking and tracing capability for each Trip, provided the Driver is logged on to the Platform.  The Company makes it a requirement for the Carrier to ensure that Driver utilises the Platform, and is connected to a network for the duration of the Trip, but the Company has no liability if the capability is not available at any point for any reason.
    5. The Company’s responsibilities are limited to (i) maintaining the Platform; and (ii) management of the Trip, including administration of Trips and tracking and tracing of the Cargo.
    6. In the event of a dispute relating to loss or damage to Cargo, the Company’s sole responsibilities are to lodge a claim with the Carrier and to assist in managing the claim.
    7. Should the Carrier cancel a Trip, or fail to complete a Trip, the Company will use reasonable efforts to find a replacement Carrier for the Trip, however, the Company shall not be obliged to find a replacement, neither shall the Company be liable for any damages suffered by the Shipper as a result of a cancelled Trip. 
  6. SHIPPER’S OBLIGATIONS
    1. The Shipper must:
      1. provide all relevant and required information in respect of each Listing, in this regard the Shipper must ensure that the information provided is accurate, correct and not misleading;
      2. not post any Listing in respect of Prohibited Cargo;
      3. not place any Prohibited Cargo at the loading facilities for collection by Carriers;
      4. ensure that there are adequate loading and off-loading facilities and the appropriate number of suitably skilled staff at the Collection Points and Delivery Points;
      5. make the Cargo available at the Collection Point at the agreed date and time in order to enable the Carrier to collect the Cargo as agreed in the Listing;
      6. ensure that an authorised representative of the Shipper is present at the Collection Point and that (i) it is satisfied with the quality and (ii) the correct quantity of Cargo is loaded and appropriately and adequately sealed and (iii) that the Vehicle fridge is at the correct temperature for the Cargo at Collection Point;
      7. at the Delivery Point, conduct a visual inspection of the Cargo and sign the Proof of Delivery ("POD") indicating that the Shipper is satisfied with quality, quantity and temperature (where applicable) of the Cargo delivered and that the Vehicle was adequately sealed on arrival at the Delivery Point (the Carrier shall be entitled to rely on signature by a person ostensibly authorised at the Delivery Point).   In the event the Shipper fails to sign the POD, at the Delivery Point, the Shipper will be deemed to have been satisfied with the Cargo received.
    2. Carrier must arrive at the agreed loading time.  A reasonable grace period will be given per Trip. The Carrier will capture its arrival time for loading on the Platform. 
    3. The Shipper must notify the Company in writing of any disputes relating to the Cargo within 24 (twenty four) hours of completion of the Trip. In the event that the Shipper does not notify Company as contemplated in this clause, then it will be deemed that the Trip was performed in accordance with the Listing, the Cargo was received in good order and to the satisfaction of the Shipper.
    4. In the event the Shipper is not available to take delivery at the Delivery Point at the time agreed, and the Carrier is made to stand for an excessive time, then the Shipper will be liable for any charges or penalties applied by the Carrier.
  7. RATINGS AND ACTIVITY
    1. The Shipper may provide a rating for the level of service received by the Carrier, based on the criteria available on the Platform.  The Carrier will also be able to rate the Shipper, based on the criteria available on the Platform.
    2. The Shipper undertakes to provide only true, honest and accurate ratings.
    3. We may delete or remove any rating, in our sole discretion, where it is detected that there was a system error or false ratings were provided.  In the event that the Shipper persistently provides false or inaccurate ratings, the Shipper’s account may, in our sole and absolute discretion, be suspended or terminated.
    4. You hereby acknowledge that the Carrier may also provide you a rating and leave feedback regarding the Trip on the Platform.  Your average rating will be linked to your user account and will be visible to other Users on the Platforms.  If, in the Company’s sole discretion, the rating or comment is not given in good faith, such rating or comment may not be projected in the calculations of your average rating.
    5. In addition to the rating, the Company measure your level of activity and provide you with an activity score, which is based on your activity regarding responding to and submitting Listings.
    6. The Company may determine a minimum average rating and a minimum activity score that Shippers must establish and maintain.  If, after a pertinent notification from us, you do not increase your average rating or activity score to the minimum level within the prescribed time period, your usage of the Platform will be automatically suspended and/or terminated, either temporarily or permanently.  We may reverse the suspension of your account if it is merited by any external circumstances, or it is detected that the suspension was caused by a system error or false ratings.
  8. RISK
    1. The risk of loss and/or damage in and to the Cargo will pass to the Carrier once the loading of the Cargo onto the Vehicle has been completed and the risk will remain with the Carrier until such time as the off-loading process commences at the Delivery Points.  The risk of loss and/or damage in and to the Cargo will otherwise remain with the Shipper.
    2. In the event of damage to the Cargo or the Cargo being compromised, the Company will as soon as reasonably possible, notify the Shipper of the loss and/or damage to the Cargo and the Shipper will immediately and without any delay provide the Company with instructions, where required by the Company. 
  9. FORCE MAJEURE
    1. Should any Party be prevented by reason of Force Majeure from performing its obligations in terms hereof, then such failure will not be regarded as a breach of its obligations in terms hereof provided that:
      1. the Party subject to Force Majeure shall give prompt verbal notice, confirmed thereafter in writing, to the other Party hereto of the nature and estimated duration of the Force Majeure concerned;
      2. the Parties must co-operate and collaborate together and use all reasonable efforts to overcome the Force Majeure concerned and/or nullify its effect; and
      3. any suspension of performance within the provisions of the above will be limited to the period during which such inability exists only.
    2. If the nature of the Force Majeure event substantially or permanently prevents the continued performance by either Party of its obligations in terms of these Terms for a period exceeding 15 (fifteen) consecutive days, then either Party will be entitled, by giving notice in writing to terminate these Terms and thereby access to the Platform.
    3. If as a result of Force Majeure the Carrier is unable to perform its obligations, then from the outset and until the Force Majeure ceases, or these Terms are cancelled, as the case may be, the Company may, but is not obliged, to secure a Trip and/or performance from alternative carriers.
  10. RELATIONSHIP BETWEEN THE CARRIER, THE COMPANY AND THE SHIPPERS
    1. By providing the Platform, the Company acts as marketplace connecting Shippers with Carriers in order to deliver the Cargo efficiently.  
    2. Nothing in these Terms will be deemed or construed as creating a relationship of principal and agent, employment, partnership or joint venture between the Shipper and the Company. 
  11. GOOD FAITH, ANTI-BRIBERY WARRANTY AND UNDERTAKING
    1. The Parties undertake to observe the utmost good faith, and they warrant in their dealings with each other that they will neither do anything nor refrain from doing anything which might prejudice or detract from the rights, assets or interests of the other Party.
    2. For the purpose of this clauses 12, "Associated Person" means in relation to the Shipper, a person who (by reference to all the relevant circumstances) performs services for or on behalf of the Shipper in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and subcontractor/s.
    3. The Shipper undertakes at all times to reasonably ensure that nothing which may be detrimental to the image, good name and reputation of the Company is done.
    4. The Shipper undertakes to comply with all applicable anti-bribery and corruption laws (collectively "the Anti-Bribery Laws"), and will reasonably procure that any Associated Person does the same.
    5. The Shipper must promptly report to the Company in writing upon becoming aware that it or any of its Associated Persons:
      1. has committed or may have committed a breach of this clause or of any Anti-Bribery Laws; or
      2. has received any request or demand for any undue financial or other advantage in connection with the performance of a Trip.
    6. The Company will comply with the obligations set out in clause 12.4 and 12.5, with the necessary changes, in favour of the Shipper.
  12. CONFIDENTIALITY
    1. The Parties undertake to maintain the confidentiality of all the Confidential Information and must not divulge or permit to be divulged to any person any aspect of such Confidential Information. In so doing, each Party hereby undertakes, as an irrevocable stipulation in favour of the other Party in order to protect the proprietary interests of that other Party in and to the Confidential Information that it will not, for so long as the Shipper is a User or after its termination:
      1. divulge or disclose to others in any form or manner whatsoever, either directly or indirectly, any of the Confidential Information; or
      2. use for its own benefit, or the benefit of any person in any form or manner whatsoever, directly or indirectly, any of the Confidential Information or information relating thereto.
    2. Either Party may require the employees, officers or agents of the other Party to sign a confidentiality undertaking in a reasonable form specified by that Party from time to time, or to have confidentiality provisions in its contracts with its employees, officers or agents and no such person may be employed or involved in the conduct of the business between the Company and the Shipper as contemplated in these Terms until such confidentiality undertaking has been signed. Each Party will procure that its employees, officers or agents comply with the provisions of this clause 13, and will be liable for a breach by any employee, officer, agent as if it were a breach by that Party.
  13. PRIVACY
    1. An explanation on how the Company processes any of your personal information is contained in the Privacy Policy. 
    2. The Company has access to all personal information and other data provided or generated in connection with your use of the Platform.  The Company will take all reasonable steps to ensure the confidentiality and security of such data and comply with all applicable Privacy Policies and laws whenever such data contains personal information.   Except where otherwise provided by applicable Privacy Policies and laws, the Company will maintain access to such data even after these Terms between the Shipper and the Company is terminated.
    3. You have access to personal information and other data provided by you or generated in connection with your use of the Platform, you also have certain other rights to access the personal information we hold about you in this regard please refer to the Privacy Policy.
    4. The Shipper acknowledges and agrees that it is the responsible party in respect of the Carrier data. You must ensure that you maintain the security and confidentiality of all Carrier data (including personal information).   You must not share any Carrier personal information with any third party.
  14. TERM, SUSPENSION AND TERMINATION
    1. These Terms will become a binding agreement between us as of the date and time your online registration is submitted on the Platform.
    2. Further terms may become binding on you once you commence or continue to use the Platform.
    3. Unless you have contracted volume, you may terminate these Terms at any time by notifying the Company at least 30 (thirty) calendar days in advance (providing all Trips have been completed and all outstanding amounts have been paid) after which your right, as a Shipper, to use the Platform will terminate.  
    4. In the event that you have contracted volumes, you may terminate these Terms once the volumes have been used or expired (providing all Trips have been completed and all outstanding amounts have been paid) after which your right, as a Shipper, to use the Platform will terminate. 
    5. The Company may, in its sole discretion, terminate your account for any reason by providing you with 7 (seven) calendar days advance notice. 
    6. The Company is entitled to immediately terminate your account, block your access to the Platform and inform you in writing of the termination without giving any advance notice if you breach these Terms or any other agreement between us, any applicable laws or regulations, disparage the Company, or cause harm to the Company’s brand, reputation or business as determined by the Company in our its discretion.  If this happens we may, at our own discretion, prohibit you from registering with the Platform again. 
    7. The Company may also immediately suspend (block) your access to the Platform for the period of an investigation, if it suspects an infringement of these Terms or fraudulent activity on your Membership account. The block of access will be removed once the investigation disproves such suspicions.
    8. The Company may discontinue the provision of the Platform at any time and will use its best efforts to notify you 7 (seven) days prior to doing so.  In the event the Company does so, your access to the Platform and user account will terminate. 
  15. DISPUTE RESOLUTION
    1. Should any dispute or difference arise between the Parties relating to or arising out of these Terms, then either Party will be entitled to deliver written notice, setting out the issue/s in dispute, to the other Party requiring the other to meet and attempt to resolve the dispute.
    2. Within 10 (ten) days of the delivery of the written notice referred to in 16.1, a meeting will take place between any duly authorised Director of the Company, and the Chief Executive Officer, or a duty authorised director of the Shipper, and they will attempt, in good faith, to resolve the issue/s in dispute.
    3. Where the dispute remains unresolved for more than 5 (five) Business Days following the date for the meeting referred to in clause 16.2 above, either Party may refer the matter to arbitration by delivering a notice to that effect to the other Party.
    4. Such arbitration will be held in Durban in accordance with the Uniform Rules of the High Courts of South Africa by an arbitrator agreed upon by the Parties, or failing agreement within 5 (five) days after arbitration has been demanded, appointed by the Chairman of the General Council of the Bar in the Republic of South Africa or its successor.
    5. The decision of the arbitrator shall be final and binding on the Parties.
    6. The provisions of this clause 16.6, will not be deemed to prevent or prohibit any Party from applying to the appropriate court of competent jurisdiction for urgent relief.
    7. A decision which becomes final and binding in terms hereof may be made an order of court at . the instance of any Party to the arbitration. Each of the Parties to the arbitration hereby submits itself to the jurisdiction of the KwaZulu-Natal Local Division of the High Court of South Africa, should any Party wish to make any decision of the arbitrator an order of court.
    8. The provisions of this arbitration clause will continue to be binding on the Parties notwithstanding the termination or cancellation of these Terms.
    9. Any arbitration will be conducted "in camera" and the Parties must treat as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration.
    10. The Parties agree that the demand to submit a dispute to arbitration in terms hereof will be deemed to be the required legal process to interrupt prescription in terms of the Prescription Act, 1969.
  16. USER CONDUCT
    1. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations that may apply to your use of the Platforms.
    2. The following actions shall automatically be material breaches of these Terms:
      1. signing in as, or pretending to be, another person;
      2. any infringement, misappropriation, or violation (whether actual or attempted) of the intellectual property or privacy rights of the Company or any third party;
      3. interference with or damaging the Platforms, breaching, or circumventing any security or authentication measures, or using automated scripts to collect information from or otherwise interact with the Platforms;
      4. submitting a Listing in respect of a Trip in respect of Cargo which does not belong to you;
      5. registering for more than one Empty Trips account for the same individual or entity, or registering for an Empty Trips account on behalf of an individual or entity other than yourself;
      6. posting, uploading, publishing, submitting or transmitting any Content that: (i) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to any liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances
  17. THIRD PARTY LINKS
    1. The Platforms, may contain images and links to third party websites, including (without limitation) social media platforms, payment gateways, appointment scheduling and/or live chat platforms ("Third Party Websites").  If you select a link to any Third Party Website, you may be subject to such Third Party Website's terms and conditions and/or other policies, which are not under our control, and we are not responsible for the information, content or material on any Third Party Website.
    2. Links to Third Party Websites are provided "as is", and you agree that the inclusion of links does not imply an endorsement by the Company of the Third Party Website, its business or security practices, or any association with its operators.
    3. The Company does not monitor or review the content of any Third Party Website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by us and we should not be regarded as the publisher of such opinions or material. Please be aware that we are not responsible for the privacy practices, or content, of other websites, either. 
    4. You should evaluate the security and trustworthiness of any Third Party Website before disclosing any personal information to them. The Company does not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from your use of such Third Party Websites and/or disclosure to third parties of any personal information.
    5. Should you have any queries arising from transactions you conclude with such third parties, you will be required to contact them directly.
  18. DISCLAIMER
    1. The Platforms are provided on an "as is" and “as available” basis.   The Company not represent, warrant or guarantee that access to Platforms will be uninterrupted or error free.  As the usage of the Platform for requesting Trips depends on Carrier’s submitting acceptable quotes to the Shipper, the Company does not guarantee that a Shipper’s usage of the Platform will result in any Trips.
    2. Without limiting clause 19.1, the Company does not guarantee, 
      1. that the Platforms, will be available on an uninterrupted, secure, or error-free basis.  
      2. that the Platforms or any electronic communications sent by us or our third parties - are free from viruses or other harmful components. 
      3. any interrupted, delayed or failed transmission, storage or delivery of information due to a power failure, equipment or software malfunction, natural disasters, fire, or any other cause beyond the reasonable control of the Company; or
      4. any inaccurate, incomplete or inadequate information obtained from the Platforms.
      5. a denial of access to the Platforms
    3. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, THE COMPANY, ITS REPRESENTATIVES, DIRECTORS AND EMPLOYEES ARE NOT LIABLE FOR ANY LOSS OR DAMAGE THAT A SHIPPER MAY INCUR AS A RESULT OF USING THE PLATFORM.  This limitation includes (without limitation) losses relating or arising from:
      1. any direct or indirect property damage or monetary loss;
      2. loss of profit or anticipated savings;
      3. loss of business, contracts, contacts, goodwill, reputation and any loss that may arise from interruption of the business;
      4. loss or inaccuracy of data; and
      5. any other type of loss or damage.
    4. The financial liability of the Company in connection with violating these Terms or any other agreement between the Company and the Shipper will be limited in aggregate to an amount equal to 10% (ten percent) of the relevant Trip Fee.   The Shipper will only have the right to claim for damages if the Company have deliberately or in a grossly negligent manner violated these Terms.
    5. WITHOUT LIMITING CLAUSES 19.3 AND 19.4, THE COMPANY IS NOT LIABLE FOR THE ACTIONS OR NON-ACTIONS OF THE CARRIER OR THEIR DESIGNEES AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT THE SHIPPER MAY INCUR TO ITSELF OR CARGO AS A RESULT OF ACTIONS OR NON-ACTIONS OF THE CARRIER OR THEIR DESIGNEES.  THE SHIPPER IS ADVISED TO INSURE ITS INTERESTS AGAINST ALL CLASSES OF RISK IN ACCORDANCE WITH PRUDENT INSURANCE PRACTICE.
    6. The Company does not guarantee or give any warranty or make any representation as to the accuracy and content of Carrier communications or the quality, safety, or legality of what's offered, or with regard to the legal capacity of the Carrier that may submit quotes in respect of Listings.
    7. THE SHIPPER WILL BE FULLY LIABLE FOR BREACH OF THESE TERMS, ANY OTHER AGREEMENT BETWEEN THE COMPANY AND THE SHIPPER OR ANY OTHER APPLICABLE LAWS OR REGULATIONS AND MUST STOP AND REMEDY SUCH BREACH IMMEDIATELY AFTER RECEIPT OF A RESPECTIVE DEMAND FROM THE COMPANY OR ANY STATE AUTHORITY.  
    8. THE SHIPPER INDEMNIFIES THE COMPANY FOR ANY DIRECT AND/OR INDIRECT LOSS AND/OR DAMAGE, LOSS OF PROFITS, EXPENSE, PENALTY, FINE THAT THE COMPANY MAY INCUR IN CONNECTION WITH THE SHIPPER’S BREACH OF THESE TERMS, ANY OTHER AGREEMENT BETWEEN THE COMPANY AND THE SHIPPER AND LAWS AND REGULATIONS.  
  19. SECURITY

In order to ensure the security and reliable operation of the Platform for all users, the Company reserves the right at its sole and absolute discretion to take whatever action its deems necessary to preserve the security, integrity and reliability of its network and back-office applications.  Any user who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transactions Act, 2002 (specifically sections 85 to 88 (inclusive)) or the Cybercrimes Act, 2020 (specifically chapter 2) will, despite any criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by the Company and its affiliates, agents and/or partners.

  1. CHANGES TO THESE TERMS
    1. The Company reserves the right to amend these Terms at any time by uploading a revised version on the Platforms.  If the Company does so, it will notify the User of this change.  By continuing to use the Platform, the User agrees to any such amendments.
    2. If the User does not agree to the amendments of these Terms or other agreements between us, the User will have the right to terminate these Terms by discontinuing the use of the Platform and providing a termination notice to the Company.   The termination of these Terms will be effective on the effective date of the proposed amendment, unless otherwise provided in the User’s termination notice. Should the User continue to use the Platform on or after the effective date of the amendment the User consents to be bound by these Terms or other agreement, as amended.
    3. Except for changes to these Terms as contemplated in clause 21.1 and while the Parties may correspond with each other via e-mail or other electronic methods of communication, no variation of, addition to, consensual cancellation of or waiver of any right arising in terms of these Terms will be of any force or effect unless it is reduced to writing and signed, using the Company’s electronic signature process, by a duly-authorised representative of each of the Parties.
  2. GENERAL
    1. These Terms will be executed using electronic signatures in the form of a check box marked by the Shipper.  By making the Terms available on the Platform, the Company agrees to be bound by the Terms despite not appending a signature thereto. The Parties specifically record that the check box constitutes an 'electronic signature' (as defined in the Electronic Communications and Transactions Act No. 25 of 2002 or any equivalent legislation in any other jurisdiction, as may be applicable) and will serve as a valid and binding signature of the Shipper for the purposes of these Terms.
    2. The Parties record that it is not required for the Terms to be valid and enforceable that a Party initial’s the pages of these Terms and/or has its signature of these Terms verified by a witness.
    3. Any notice which must be given in these Terms will be sufficiently given if:
      1. sent by hand or courier with proof of delivery,
      2. sent by e-mail.
    4. By accessing and using the Platforms, you agree that the laws of the Republic of South Africa will govern these Terms, and you consent to the jurisdiction of the South African courts in respect of any dispute which may arise from these Terms.
    5. If any provision of these Terms is held to be illegal, invalid or unenforceable, that illegality, invalidity or unenforceability shall not affect the other provisions of these Terms.
    6. No failure or delay by the Company to exercise any of its rights will be regarded as a waiver of its rights, nor will it affect the validity of any part of these Terms.
    7. The Shipper will not, without the prior written consent of the Company cede or assign any of its rights or obligations in terms of these Terms, including but not limited to, the right to receive payment from the Company, to any third party.

 

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