1. DUE DILIGENCE
1.1. As per STREAM’s due diligence procedures, the validity of this Agreement is subject to the Company successfully passing sanction and compliance checks performed within 30 days of the Effective Date of this Agreement (“Initial Check”).
1.2. The Company consents to STREAM performing sanction and compliance checks (“Subsequent Checks”) on a continuous basis as and when it deems fit. In the event that the Company does not successfully pass any Subsequent Checks, STREAM shall have the right to
cancel this Agreement immediately upon written notice to the Company and may withdraw and/or refrain from submitting any pending shipments for the Company. STREAM shall not be liable for any damages suffered by the Company as a result thereof.
2. REVIEW OF FEES AND TERMS AND CONDITIONS
2.1. STREAM reserves the right to review its fees and the terms and conditions withheld in Schedule C on an annual basis.
2.2. As security for payments of any sum due or to become due to us under the terms of this Agreement, STREAM shall have the right, if necessary, to retain possession of, and shall have a lien on all property owned by you and in our possession, and all work in process and
undelivered work.
3. RATES AND PAYMENT
3.1. Rates quoted are based on STREAM’s Carriers’ standard terms and conditions of carriage. STREAM’s operating process does not include any non-standard or tailored services, such as but not limited to dedicated transport, enhanced customs services or on-site services unless otherwise agreed upon in writing.
3.2. Rates are calculated on the basis that shipment flows are as per the Incoterms provided.
3.3. The initial rates will be based on indicative costing only and subject to change at the time of actual shipment depending on additional costs, space availability, acceptance, currency fluctuations, final weight and dimensions being received.
3.4. The rates for transportation, services, and surcharges are based on shipment volume and/or a revenue commitment per month. In the event of a shortfall on the projected shipment volume or on the committed revenue (for all or for a specific product) and/or in the event of a
substantial change in the shipment volume, weight or destination mix, STREAM’s Carriers reserve the right to revise the rates at any time.
3.5. Volumetric weight factors vary according to type of transport such as air freight, ocean
freight, rail, road or express and apply to quoted rates. Shipments will be charged according to the higher of actual or volumetric (dimensional) weight. The Company may request the volumetric weight information from STREAM prior to shipment.
3.6. Rates are exclusive of value-added tax (VAT), sales taxes (or equivalent), customs duties, any customs stops, storage or detention fees that might be applicable and other government taxes imposed with respect to the provision of STREAM Services.
3.7. All charges are due before Services are performed unless other written arrangements have been made in advance between the Parties. STREAM has the right to demand prepayment or guarantee of the charges at the time of request for Services. A failure to pay timely will result in the Company having to pay direct in advance for future Services. STREAM retains the right to
hold the Company’s goods for non-payment. If a credit card is provided to STREAM, STREAM is authorised to bill to such credit card for any unpaid charges for Services provided to the Company, including charges for return shipping.
3.8. Any payments due to STREAM may be set off against any money due to the Company by STREAM.
3.9. In the event that the Company incurs customs duties, customs stops, storage or detention fees or other government taxes imposed as a result of the shipment, these charges plus an administration fee will be billed directly to the Company.
3.10. In the event that goods are withheld by customs authorities, the Company will still be liable to pay over freight, VAT, duties and other stoppage fees related to the shipment.
3.11. Any disputes related to invoices should be submitted by the Company within 7 days from the date of the invoice or the invoice due date.
4. UNFORESEEN ADDITIONAL CHARGES
4.1. Additional charges related to unforeseen optional services and surcharges are billed in accordance with the standards in effect at the time the shipment booking was made. Additional charges are paid in addition to applicable transportation charges and apply whenever any
optional service is requested, or the surcharge is required.
4.2. Any additional governmental or regulatory charge applicable to the Service which result in increased costs, will be passed on proportionately to the Company and included in the invoice issued by STREAM.
4.3. STREAM reserves the right to apply surcharges to recover costs associated with temporary emergency situations beyond its control which could not have been reasonably foreseen at the commencement of this Agreement. These surcharges will apply in addition to existing rates.
4.4. The shipment of goods to or from remote areas can result in additional charges.
4.5. Upon the Company’s negligence in providing accurate input of their packages’ weights and/or dimensions, poor packaging which may distort the provided measurements, or as a result of requiring the Shipment of uniquely shaped packages, the Company may incur additional handling charges and further increases to the billable weights and final transportation rates.
5. GENERAL PRICE INCREASE
5.1. Most of STREAM’s Carrier’s pricing is valid until December 31st of the year the rates are quoted. The rates are subject to adjustment in accordance with STREAM’s Carrier’s annual change to its published rates in each country, which normally occurs on January 1st of each year.
5.2. Rates are subject to STREAM’s Carrier’s seasonal surcharges as well as public holiday
surcharges.
6. CURRENCY
6.1. Where the Parties agree to invoice in a different currency from the quoted Carrier’s currency, then rates shall be converted to the billing currency at the floating currency exchange rate prevailing at the time of pickup of the shipment.
7. HIGH INFLATION
7.1. In the event that the annual inflation rate of the country for which the rates are quoted would exceed 5%, STREAM shall have the right to adjust the rates applicable to said country upon prior notice to the Company.
8. PARTNER COMPANIES
8.1. The rates are only offered to the Company and cannot be extended to third parties. Majority-owned subsidiaries of the Company and other parties can be added to this Agreement on mutual written agreement.
9. RESTRICTIONS
9.1. Package size and weight restrictions differ by country or the Carrier’s services and will need to fall within regulations.10. RESTRICTED COMMODITIES
10.1. This Agreement does not provide for the shipment of alcohol or other items and conditions that may be prohibited or restricted by law or by STREAM’s Carriers’ Service Guides. The following items, including but not limited to, are not acceptable for carriage to any destination: money, explosives, human corpses or body parts, cash on delivery shipments, firearms, plants
and seeds, perishables, pornography, hazardous waste, dangerous goods as deemed by STREAM, dead or live animals.
10.2. In the event that STREAM finds that the shipment includes any of the restricted commodities as set out herein, STREAM retains the right to hand of the restricted commodities to the respective authority.
10.3. The Company takes responsibility for any information provided and warrants that the goods are within the correct regulations. The Company will be liable and agrees to indemnify STREAM for any costs, penalties or fines which may be incurred if any shipment is found to violate clause
10.1 and for any legal costs that STREAM incurs in connection with such
violations.
11. WARRANTIES
11.1. By utilising the Services, the Company will provide certain information about the goods and Shipment to which STREAM’s Carriers have made various assumptions. The Company warrants that all information provided is complete and accurate. STREAM’s Carriers shall have no liability whatsoever (including negligence or otherwise) to the Company or any other Party relying on any such information, in the event that the information is shown to be inaccurate, misleading or out-of-date.
11.2. The Company shall indemnify and hold STREAM harmless for any loss or damage arising out of Company’s failure to comply with the following warranties and representations:
11.2.1. The Company will not withhold any information and/or documentation for STREAM to perform the services in terms of this Agreement;
11.2.2. The Company warrants that all documentation and/ or information which it provides to STREAM is, to the best of its knowledge, unedited and both true and correct;
11.2.3. The Company has complied with all applicable laws, including but not limited to, government export controls, privacy and data protection laws, sanctions, embargos and anti-bribery laws; and
11.2.4. The Company has obtained all necessary consents in relation to personal data provided to STREAM including Receiver’s data as may be required for transport, customs clearance and delivery, such as location addresses, e-mail address and phone numbers.
11.2.5. The Company herewith provides STREAM and/or its representatives with the necessary authorisation to sign documentation on its behalf with regards to the clearance process.
11.3. STREAM warrants that:
11.3.1. the Services shall be carried out in a professional workman like manner;
11.3.2. it shall adhere, as far as reasonably practicable, to all time period and/or limitations imposed by the relevant tax authority;
11.3.3. it shall endeavour to provide the Services with due skill and care. However, STREAM cannot warrant or guarantee that the Services, in isolation and in totality, will result in partial or full Refund/s and/or successful Local Claim/s; and
11.3.4. The findings, opinions and conclusions provided by STREAM do not profess to be facts or guarantees. STREAM shall not be held liable for any action, undertaking or omission by the Company on the basis of the findings, opinions and/or conclusions
provided by STREAM.
11.4. The Parties warrant that they have not involved nor participated in and will not be involved nor participate at any time in tax avoidance, tax evasion, fraudulent activity and/or any non-compliance related to VAT or any other taxation matters. The Company remains at all material times, responsible for any and all VAT related affairs. STREAM cannot be held liable for the
Company’s failure to ensure compliance with the clause.
11.5. The warranties in this clause 11 shall not apply in the event that the breach of warranty is (i) a result of a fortuitous event and/or (ii) any data provided to STREAM by the Company is inaccurate, not up to date and/or falsely amended in any manner other than as required by law or industry practice.
12. CONFIDENTIAL INFORMATION
12.1. This Agreement and documents expressly incorporated herein by reference, including any and all quotations, rates, proposals or statements of work, contain confidential information about the Parties, its Carriers and its affiliates. This confidential information is provided to the Receiving Party for the limited purpose of enabling the Company to utilise STREAM’s Services and shall be held in strict confidence by the Parties and may not be disclosed unless required by law.
12.2. As a condition for the use of the information in this Agreement, the Parties agree not to use such information for any other purposes.
12.3. Copies of this Agreement and documents expressly incorporated herein by reference may only be provided, and disclosure of the information contained within, may only be made to employees of the Parties (on a need-to-know basis) and its named representatives who are bound to confidentiality with respect to the information, and shall not be disclosed to any third
party.
12.4. The Parties agree not to post or publicly display the terms of this Agreement or the pricing contained herein.
12.5. The Parties also agree that any discussions or negotiations regarding the pricing or any changes thereto (including but not limited to future pricing offerings) are also confidential and are subject to this provision of confidentiality.
12.6. The Parties acknowledge that any disclosure of confidential information in breach of clause 12, may entitle the Disclosing Party to injunctive relief in addition to any and all other remedies.
12.7. Despite clause 14 hereof, should either Party be found in breach this clause 12, the Breaching Party will be liable to the Aggrieved Party for an amount determined by the relevant court of law.
13. DATA PROTECTION
13.1. For the purpose of this Agreement “Information” shall mean any content, data or other information transmitted to or from, or stored on STREAM’s information technology system.
13.2. The Parties shall take all reasonable steps to protect the Information that it receives from the other Party and to adopt reasonable security measures depending on sensitivity of such Information.
13.3. The Parties undertake not to use or disclose to any third party, any Information belonging to the other Party unless it needs to do so by law or to perform its obligations under this Agreement.
13.4. The Company acknowledges that personal data relating to the Company may be processed by STREAM and any relevant third parties. The Company expressly consents to such processing (including any such transfer) on the understanding that any personal data will be processed fairly and lawfully in accordance with any applicable data protection legislation.
14. LIMITATION OF LIABILITY
14.1. In the event that the Company does not elect to opt in to STREAM's Extended Product Coverage in accordance with clause 28, the Company acknowledges and agrees that, in respect of carriage, liability shall be governed exclusively by the applicable Carrier’s conditions of carriage, including any limitations or exclusions of liability contained therein and the Company
are bound by these terms.
14.2. The conditions of carriage limit and in certain events exclude the Carrier’s liability for loss, destruction, damage and delay and require claims to be made within strict time limits. The conditions of carriage are expressly incorporated herein by reference.
14.3. In respect of any claims not covered under clause
14.1 above, including but not limited to claims arising from STREAM's provision of services other than carriage, such as (withoutlimitation) customs clearance, warehousing, freight forwarding, documentation support and related ancillary services, STREAM shall not be held liable for any claim of whatsoever nature (whether in contract or in delict) and whether for damages or otherwise, howsoever arising, in
favour of the Company and/or a third party, unless such claim arises from a proven grossly negligent act or grossly negligent omission on the part of STREAM, its employees or its authorised agents.
14.4. Save as required by law, the sole aggregate liability of STREAM to the Company arising out of or in connection with any gross negligence or misconduct by STREAM of this Agreement shall be limited to the fees raised by STREAM for its services in connection with the Goods, but excluding any amount payable for rates and taxes, prior to the incident giving rise to the
Damages.
15. ADVANCE NOTICE IN CASE OF UNEXPECTED VOLUME
15.1. The Company shall give STREAM at least twenty-four (24) hours advance written notice of any known or anticipated package volume surges. For each account, a “package volume surge” occurs when the Company tenders packages which substantially exceed the number, type, size, and/or weight of packages tendered, on average, for such account by the Company throughout the prior year. In such event, STREAM may, at its sole option, either accept such packages subject to waiver of commitment times or decline to accept such packages without further obligation of any kind to the Company.
16. INDEMNITY
16.1. STREAM shall indemnify and hold harmless the Company on demand against any claims, liabilities, losses, costs, proceedings, damages or expenses arising out of or in connection with any gross negligence by STREAM of this Agreement (“Damages”).
16.2. Save as required by law, the sole aggregate liability of STREAM to the Company arising out of or in connection with any gross negligence by STREAM of this Agreement shall be limited to the value of STREAM’s fee charged for the shipment prior to the incident giving rise to the Damages.
16.3. Notwithstanding the provisions of clause 16.1 and 16.2 the following exclusions are applicable:
16.3.1. The success and the timing of the shipments may be dependent on the relevant, complete and accurate information being provided by the Company to STREAM. The Company shall not be entitled to any Damages or additional compensation as a consequence of any delays or interference, inaccuracies and/or any information that is not provided to STREAM, whether intentionally or not.
16.3.2. STREAM shall use all reasonable endeavours to provide the Services with due skill and care and in accordance with good industry practice. However, STREAM cannot warrant or guarantee that the Services, in isolation and in totality, will result in full refunds,
deliveries and compliancy, and any Damages as a consequence of any act or omission in relation to the Services by STREAM shall not be recoverable by the Company from STREAM.
16.3.3. The findings, opinions and conclusions provided by STREAM do not profess to be facts or guarantees. STREAM shall not be held liable for any action, undertaking or omission by the Company on the basis of the findings, opinions and/or conclusions provided by STREAM.
16.3.4. The Company agrees that any suggestions and/or estimations provided by STREAM (such as tariff classifications or related, taxes and duties, or fees) do not constitute legal advice to the Company or any other Person. STREAM does not guarantee the accuracy of any information provided by STREAM or any of its representatives. STREAM shall not be liable to any Person or entity for any direct, indirect, consequential, incidental or other damages under any theory of law for any errors in the information, fees,
forms, or features of the STREAM platform.
16.3.5. VAT, duties and any stoppage fees will still be payable by the Company.
17. DEMURRAGE
17.1. The Company assumes no liability for demurrage (whether related to marine movements or otherwise), except if such demurrage is the result of the Company’s negligence or wilful misconduct.
18. FORCE MAJEURE
18.1. The Parties shall not be liable for damages, any delay or failure to perform any of the terms and provisions of this Agreement arising from causes beyond its control, including but not limited to, acts of God or public enemies, acts of civil or military authority, labour disputes, fires, riots, wars or conditions of war, embargoes, accidents, epidemics, floods or other unusually severe weather, closing or obstruction of highways, runways, bridges or ferries any of which have a material, substantial and adverse effect on either Parties ability to perform pursuant to the terms of this Agreement.
18.2. The Party claiming force majeure shall notify the other Party within twenty-four (24) hours of when it learns of the existence of such a condition as stipulated in clause 18.1 and shall similarly notify the other within a period of two working days after the condition is remedied. If
such a condition of force majeure, however, is not remedied within sixty (60) days, the unaffected Party shall have the right to terminate this Agreement.
19. TERMINATION
19.1. This Agreement will be cancelled if either Party terminates this Agreement in writing by giving notice to the other Party at least ninety (90) days before the end of any two (2) year period after the Initial Period (“the Termination Date”). The Company is not permitted to terminate this Agreement during the Initial Period.
19.2. Furthermore, in the event that the Company terminates this Agreement, STREAM shall be entitled to proceed with the shipment of any goods that have been prepared or are in the process of being prepared by STREAM prior to the Termination Date. STREAM reserves the right to charge the Company the relevant fee/s stipulated in clause 2 of the Client Agreement
for the Services.
19.3. Once a shipment has been approved in writing by the Company, the shipment cannot be terminated by the Company. If the Company still wishes to terminate the shipment, the Company will be held liable for the full cost of the shipment, unless mutually agreed by both
Parties.
19.4. Either Party may terminate this agreement immediately with cause if the other Party has committed a material breach of this Agreement which has not been remedied within 14 (fourteen) days of receiving written notice from the other Party of such breach.
20. ASSIGNMENT
20.1. The rights and obligations of this Agreement are personal to the Parties and this Agreement shall not be assignable or otherwise transferrable by either Party, in whole or in part, without the written consent of the other Party, provided that the Company shall have the right to assign this Agreement, to any entity controlling, controlled by, or under common control of the Company.
20.2. Notwithstanding the provisions set out in clause 20.1 STREAM’s Carriers may assign all or any part of its rights and delegate its duties under this Agreement to a directly or indirectly owned subsidiary or affiliate of STREAM’s Carriers’ corporations.
21. ENVIRONMENTAL POLICY
21.1. STREAM is committed to the goal of continuously improving its environmental impact while maintaining the highest customer service, best product selection and quality, at the lowest possible cost. STREAM is committed to and adheres by the terms laid out in the STREAM
Group’s Environmental Responsibility Policy.
22. SEVERABILITY
22.1. If any of the provisions of this Agreement are found by a court or any other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall remain and continue in full force and effect.
23. REPRESENTATIVES
23.1. STREAM reserves the right to engage and utilise a third-party representative to carry out a portion of the services as and when required.
24. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS
24.1. STREAM shall comply with all applicable federal, and provincial/state laws, regulations, policies and practices as well as the regulations of any other country in which It performs services under this Agreement. In particular, and without detracting from the generality of the foregoing, STREAM shall use its best endeavours to be in full compliance with, any legal requirements pertaining to the transportation of hazardous materials, dangerous goods or overweight containers.
25. GOVERNING LAW
25.1. This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
26. LANGUAGE
26.1. In the event that this Agreement is executed in English and any other language, the English version shall prevail.
27. GENERAL
27.1. STREAM will have no liability for any delay or failure in performance of its obligations where this arises from matters outside its reasonable control.
27.2. Any failure by STREAM to enforce at any particular time any one or more of its rights under this Agreement shall not be deemed a waiver of such rights or of the right to enforce this Agreement subsequently.
27.3. Headings contained in this Agreement are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.
27.4. Failure or neglect by STREAM to enforce at any time any of the provisions of this Agreement shall not be construed to be a waiver by STREAM of those rights nor in any way affect the validity of the whole or any part of this Agreement nor prejudice STREAM’s rights to
take subsequent action.
27.5. This Agreement may not be modified or amended except in writing and signed by a duly authorised representative of both Parties.
27.6. The rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply to this Agreement
27.7 Should STREAM instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against THE APPLICANT in the implementation or protection of STREAM’s rights, STREAM shall be entitled to the recovery of all legal or collection costs arising there from, on the scale as between attorney and own client, agent or collection agency and own client.
28. EXTENDED PRODUCT COVERAGE
28.1 STREAM is neither an insurer nor an insurance intermediary nor an insurance broker. At all times during performance of STREAM's Extended Product Coverage service, STREAM assumes liability for goods in transit and agrees to maintain an insurance policy or policies
payable to STREAM in such amounts and against such risks as shall adequately cover any liability assumed by STREAM under its Client Agreement or by law.
28.2. Should the Company elect to opt into STREAM's Extended Product Coverage product, STREAM will arrange full coverage on all goods being shipped by the Company and shall extend its liability to include the value of goods as laid out in STREAM's "Extended Product Coverage Terms and Conditions". Extended Product Coverage includes: (i) a dedicated accounts representative (ii) bespoke logistic services (iii) shipment protection (iv) dedicated support services (v) coordination of import VAT reclaim and (vi) coordination of tax compliance services (the “EPC”).
28.3. By receiving EPC protection, the Company agrees to all relating terms and conditions as laid out in the “Extended Product Coverage Terms and Conditions”, the terms incorporated herein by reference.
28.4. In case of damage to covered goods, the Company will be able to institute a claim directly with STREAM under the conditions held in the “Extended Product Coverage Terms and Conditions
28.5. STREAM coordinates its import VAT reclaim and tax compliance services through its tax compliance partners. The Company acknowledges that by receiving the coordination of import VAT reclaim and tax compliance services an excess fee will be payable.
28.6. Notwithstanding the EPC listed in clause 28.2, the Company will not be eligible to receive shipment protection, if they already have insurance on the goods being shipped.
28.7. The Company can opt out of the EPC, this needs to be indicated prior to each shipment
going live.
