AN AGREEMENT made this day of Two Thousand BETWEEN ……..a limited liability Company
having its registered office situated at ……….in the Republic of Kenya and
having a place of business at ……….and elsewhere in the Republic of Post Office
Box Number ……..Nairobi (hereinafter
called “the Company”) of the one part and …………….a
limited company having its registered office situated at Nairobi in the
Republic of Kenya and having its business at Nairobi and elsewhere in the Republic (hereinafter called “the
Transporter”) of the other part whose address is Post Office Box Number ………Nairobi
WITNESSETH THAT it is
mutually agreed that the Transporter shall supply and the Company shall hire
the services of and charter the Vehicle unit(s) described in Attachment (A)
hereto for purpose of operating the same for transportation of cement from Athi
River to Kigali, Rwanda subject to the
following terms and conditions:-
1.
The Transporter shall supply with the said Vehicle unit(s) an experience
and competent driver or drivers who shall for the purpose of the Agreement be
the servants of the Transporter and not of the company shall obey all the
lawful and reasonable directions of the Company. The board lodging travelling and other
expenses of the driver or drivers shall be paid by the Transporter.
2.
During the continuance of the Agreement, the Company shall pay the
Transporter the sum of US$ ………per tonne.
The Company shall pay to Transporter fifty per centum of the total costs
upon loading and the balance in accordance with clause 14 hereunder. If the need arises, the costs will be
evaluated every three months.
3.
The transporter shall during the duration of the Agreement keep the said
vehicle unit(s) in good and serviceable order and condition and validly
licensed for all the purpose for which they are being used and either fully
insure the vehicles(s) and product under a comprehensive insurance policy or
policies or fully cover the product separately under Goods in Transit Policy or
Policies (including but not limited to nuisance and loss of product) taken out
with a company or
Companies approved in writing by
the Company in the name of the Transporter but bearing a clause stating
that African Portland Cement Company
limited has some interest in the policy AND
will without demand produce to the Company such policy or policies and duly pay
all premiums and produce to the Company renewal receipts in respect thereof.
4.
The transporter shall at all times adhere to the maximum allowable axle
load capacity as per Kenya Road Transport Laws.
5.
It is hereby agreed that all costs of maintenance and running expenses
for the purpose of operating the said vehicle unit(s) in and out of the Republic
of Kenya for the purpose aforesaid shall be borne by the Transporter.
6.
a) Every consignment of the
company’s product shall be accompanied by
a
consignment note on which shall be stated.
i)
What the consignment consists of, the products name, the quantities and
the quality of the product;
ii)
The full name and addresses of the company and consignee;
iii)
Particulars of destination.
b)
The transporter shall be responsible for witnessing and certifying
qualities of products loaded and offloaded for the company.
c)
The Transporter shall be entirely responsible for products in transit and
the Company shall not be liable for losses or contamination occurring during
the transit.
7.
All products supplied by the Company to the Transporter are warranted at
the point of supply to be of the quality and quantity stated on the consignment
note described in paragraph 6(a) (i) above.
8.
The Transporter shall be liable for loss or contamination proved by the
Company to have been caused by delay to or the misdelivery detention or
unreasonable deviation of the products transported or any loss being the fault
of the Transporter in the carriage of the products unless the Transporter
proves that such delay, misdelivery detention, unreasonable deviation or other
such loss has occurred without negligence on the part of the Transporter and/or
his servant.
9.
The Transporter hereby undertakes that it will at all times hereafter
well and sufficiently indemnify the Company and keep the Company indemnified
against all and every liability in respect of claims that may be made against
its servants or agents arising directly or indirectly out of any accident
causes by or contributed to by any goods or equipment of the Company carried on
the said vehicle unite(s) or any of them and however such claims may arise and
whether made by the consignee of the product of the Company or otherwise and
also against all actions suits proceedings claims demands costs and expenses
whatsoever which may be taken or made against the company or incurred by or
become payable by the Company in respect thereof.
10.
The Transporter shall insure and keep themselves insured from and against
all liabilities herein contained and shall pay all premiums necessary for that
purpose within seven days after the same shall become due and shall produce to
the company on demand the policy or policies of insurance and the receipt for
the current year’s premiums.
11.
The Transporter shall establish and maintain appropriate business
standards procedures and controls including those necessary to avoid any real
or apparent impropriety or to prevent any action or conditions which could
result in conflict with the Company’s best interest. This obligation shall apply to the activities
of the employees of the Company and the families of such employees and third
parties arising from this Agreement. The
efforts of the Transporter shall include, but not limited to establishing
precautions to prevent its employees or agents from making, receiving,
providing or offering gifts or entertainment of
more than nominal value,
payments loans or other consideration to anyone for the purpose of influencing
individuals, firms or body corporates to act contrary to the company’s
interest.
12.
The Transporter shall comply and ensure compliance at all times by its
driver or drivers with the Company’s safety, security requirements and
procedures which apply to the location at which services are rendered.
13.
All invoices rendered to Lift Kenya Limited are to properly reflect the
facts concerning the transaction including the nature of any cost incurred for
the account or Lift Kenya Limited. The
Transporter is not expected or authorised to take any action which would
violate applicable laws in carrying out the business on behalf of Lift Kenya
Limited.
14.
The Transporter undertakes to submit invoices and accounts supported by
copies of consignment notes for services rendered to the Company upon the
delivery of the Company’s products. The
Company shall settle such bills within 15 days from the date of receipt of such
bills PROVIDED that the Company
shall be entitled to deduct from such payments:-
i)
Any such amounts incurred due to loss of product as set out in clause 8
above and;
ii)
Any other monies which the Transporter may owe the Company
15.
The Transporter shall during the duration of this Agreement use the said
vehicle unit(s) exclusively for the transportation of the Company’s products
and shall transport at l Six Hundred 600 metric tonnes per
month provided that there is demand for the Company’s products in such
quantities.
16.
The Transporter shall not assign or purport to assign the benefit
of this agreement without the prior consent of the company provided that in
case of a
Company transfer of more than
fifty per cent of its shares shall be deemed to the assignment within the
context of this clause.
17.
This Agreement shall be for THREE
YEARS and shall commence on the 6th day of March Two
Thousand and thereafter shall be deemed to continue from year to year until
terminated as proved in clause 18 hereunder.
18.
This Agreement may be terminated by either party giving to the other 3
months’ notice to the effect. Either
party shall be entitled to terminate this Agreement at any time without notice
if the other commits a breach of the terms and conditions of this Agreement.
19.
The Transporter shall pay all sums of money due to the Company under this
Agreement within 30 days from the date of statement of such account. The Transporter shall not be permitted to set
off against such accounts any sums, accounts or other payments which may be due
to it under any other account.
20.
No delay or failure in performance by either party thereto shall
constitute default hereunder or give rise to any claim for damages or loss of
anticipated profits if such delays or failure is caused by Force Majeure. Force Majeure shall mean an occurrence beyond
the control and without the fault or negligence of the party affected and which
the said party is unable to prevent or provide against by the exercise of
reasonable diligence including, but not limited to; acts of God or of the public
enemy; appropriation or confiscation of facilities; lack of demand; any form of
Government intervention; war rebellion; terrorist activity or other
catastrophes; strikes or any other concerted acts of employees; or other
similar occurrences.
21.
Unless otherwise agreed the Agreement shall be subject to the Laws of
Kenya any dispute which may arise between the parties in connection with this
agreement and which cannot be solved mutually by the parties, shall be referred
for decision by an arbitrator agreed upon by both parties in accordance with
the provision of the Arbitration Act Cap 49.
22.
The Transporter will be required to submit to the Company, twice a year,
a certified report of mechanical inspection for all trucks in service to the
Company. The inspection must be carried
out by an approved vehicle dealer.
SIGNED by }
On behalf of the Company in the
presence }
}
}
}
Advocate }
}
}
SEALED
with the Common Seal }
Of the Transporter in the
presence }
}
}
Director }
}
}
Director/Secretary }
}
}
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