PARGO TERMS AND CONDITIONS OF SERVICE
In these terms, the following words mean:
“Affiliates” means all subsidiaries of a Party or the holding companies of such Party or any other subsidiaries of such holding companies or all Entities Controlled by or under the direct or indirect Control of such Party, its subsidiaries, its holding companies or the subsidiaries of such holding companies;
“Controlled” or “Control” means with respect to the relationship between two or more Entities, means the possession, directly or indirectly by equity ownership, contract or otherwise, of the power to direct the management or policies of the specified Entity;
Credit Application. Pargo’s written credit application form and credit terms setting out the terms and conditions upon which Pargo offers the Services to the Client on credit, if applicable;
Courier. CourierIT SA Proprietary Limited, or any other courier service sub-contracted by Pargo to deliver a Parcel(s) pursuant to rendering the Services;
Client. The client identified on the front page of these terms;
“Entity/ies” means any person, association, business, close corporation, club, company, concern, enterprise, partnership, trust, undertaking, voluntary association or other similar entity, whether corporate or unincorporated;
Fees. The fees payable by the Client to Pargo for the provision of the Services, as stipulated in the Rates Proposal and/or any subsequent written amendment or departure negotiated by the parties in writing from time to time;
Force Majeure. An event of Force Majeure is an event or circumstance which could not have reasonably be foreseen and is beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected is unable to prevent. Provided that the event or circumstance is limited to the following: war, acts of terrorism, civil war, pandemic, requisition or compulsory acquisition by any governmental or competent authority, earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions, strike or industrial disputes by labour employed by the affected party and specifically excluding a Party’s lowered profit, cost of financing or other business considerations.
Intellectual Property. The intellectual property rights, title and interest in and to the Platform and the Services, including all designs, patents, utility models, business and trade secrets, trademarks and service marks, trade names, concepts, methods, techniques, processes, adaptations, ideas, copyrights, technical specifications, know-how, material and/or products, whether fully developed or otherwise, of which Pargo is the owner from time to time, whether or not registered and including applications for the registration of any of the aforementioned, and the right to apply for the registration of any of these, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
Parcel. Movable goods handled, stored and/or transported by Pargo and/or a Courier on behalf of a Client in terms of this agreement. Parcel may refer to a collective number of items as one Parcel or the individual items within a Parcel which are distributed separately, as the context indicates;
Rates Proposal.The written rates proposal document prepared by Pargo and signed by the Client, detailing the scope and type of Services and the costs associated with the Services;
Related Document. The Rates Proposal, the Credit Application and the Software Subscription Agreement, or any one or combination of them as may be applicable to the Client;
Services. The services to be provided by Pargo to the Client from time to time, the scope of which is contained in the Rates Proposal;
Signature Date. The date upon which the last of the named parties to these terms signs these terms; and
Software Subscription Agreement. Pargo’s written license agreement setting out the terms and conditions upon which Pargo licenses software to the Client, if applicable.
A reference to:
“ordinary business hours” means the hours between 08h00 and 17h00 SAST on a business day;
a “business day” means a day which is not a Saturday, Sunday or a public holiday in the Republic of South Africa;
a “person” includes a natural person, juristic person, trust, organisation, partnership, joint venture, syndicate, or any other association;
an enactment is to that enactment as at the Signature Date as amended or replaced and includes any subordinate legislation made from time to time under such enactment;
a South African law process shall, if a party is subject to another jurisdiction’s law, be interpreted in relation to that party as including an equivalent or analogous proceeding under such other law; and
a number of days shall exclude the first day and include the last day. If the last day is not a business day, the last day shall be the next business day.
- Pargo offers the Services through the use of its smart logistics platform (“Platform”) which, amongst other things, enables the Client to send and receive Parcels to and from its customers at convenient designated locations across Southern Africa. The Platform and Services facilitate the delivery and collection of Parcels between the Client and its customers. Pargo acts as an intermediary and is independent from both the Client and the Client’s customers.
- These terms set out the terms and conditions upon which the Client will make use of the Services from time to time.
- The Client selects its preferred Services in the Rates Proposal. Should the Client want to make use of any additional Services at any time following the signature of the Rates Proposal, it must inform Pargo in writing, and Pargo shall notify the Client of the applicable Fees associated with such additional Services. The Fees associated with the additional Services are applicable from the date that the Client accepts such Fees in writing or via email.
- Certain Services may require the Client to install specific hardware and/or software. The Client is responsible for ensuring it has installed the requisite hardware and/or software in order to make use of the Services. If Pargo licenses software to the Client pursuant to the Services, the Software Subscription Agreement must be entered into between the parties and the provisions of that agreement will be read with these terms.
- Pargo may subcontract the handling, storage and transportation of Parcels to third parties, including the Courier. In rendering the Services, Pargo and the Client is bound by the terms of service of such third party, including the Courier.
- The Client can track the progress of deliveries, collections and returns on the Platform.
- Any Services provided by Pargo to the Client will be under these terms unless the Parties have agreed in writing on different terms.
- When a Parcel is available for collection, the Client’s customer will receive notification via email and/or SMS. The notification will contain a unique Pargo code that must be produced, along with the Client’s customer’s identity document or driver’s license, upon collection.
- The Client’s customer may arrange for a third party to collect a Parcel on their behalf, in which event such third party must still produce the unique Pargo code and the requisite identity documentation (or copy thereof) of the recipient to whom the Parcel is addressed.
- Should the Client’s customer (or third party nominee) fail to produce the requisite identity documentation or Pargo code, Pargo may refuse the collection, and such refusal will be deemed to be a failure to collect. Parcels may be released without the requisite identity documentation at Pargo’s discretion
- If a Parcel is not collected by the Client’s customer within 8 days of the first delivery notification, Pargo may return the Parcel to the Client or destroy it. Collection periods may be extended with Pargo’s written consent. However, additional Fees may apply.
- The Client may elect either to always allow returns from its customers, or only allow returns from its customers upon request.
- The Client’s customer must produce the unique Pargo code designated to them when returning Parcels.
- The Courier terms and conditions will apply with respect to the process regarding deliveries to the Client’s customer, including identification protocols.
FEES AND PAYMENT
- In addition to the Fees, if stipulated in the Rates Proposal, the Client will be liable to Pargo for any additional costs incurred with the Client’s consent, against acceptable proof of such expense as submitted with the relevant invoices(s).
- The Client will be charged either a fixed fee per month, a fixed fee per Parcel (which may be a flat fee or determined according to delivery distance and/or Parcel weight), or at any other rate stipulated in the Rates Proposal.
- Where the Client elects to pay the Fees on a pre-paid basis: the Client will only be able to make use of the Services to the extent that the Client has a positive account balance with Pargo; Pargo shall submit invoices for the Fees on a monthly basis, stipulating the Fees deducted from the Client’s account for Services rendered during the previous month, as well as the Client’s account balance as at the date of the invoice; once the Client’s account balance has been depleted, Pargo will suspend access to the Services until such time as the Client’s account has a positive balance.
- Where the Client elects to pay the Fees on a credit basis: the Client must duly complete, sign and submit the Credit Application to Pargo. If the credit is granted by Pargo, the Client will pay the Fees in accordance with the terms and conditions set out in the Credit Application; Pargo shall submit invoices for the Fees on a monthly basis, stipulating the Fees for Services rendered during the previous month; the Client shall pay the invoiced amount(s) within 30 days of receipt of the relevant invoice, unless otherwise agreed (“Due Date”), into Pargo’s bank account specified at the front of these terms; where the Client fails to pay any amounts by the Due Date, Pargo shall be entitled to: charge interest on outstanding amounts at 2% above the mora interest rate prescribed in terms of the Prescribed Rate of Interest Act, No. 55 of 1975; suspend access to the Services until such time as all outstanding amounts have been paid and repaid; and/or revoke any discount granted to the Client; all amounts owing by the Client to Pargo shall become immediately due and payable by the Client, and Pargo shall be entitled to suspend all access to the Services with immediate effect, should any of the following events of default occur: the Client is placed in liquidation or under judicial management, business rescue, whether provisional or final and whether compulsory or voluntary; the Client fails to satisfy, or appeal any judgment awarded against it by a competent court within 10 business days of the date of such judgment; the Client is unable or admits an inability to pay its debts as they fall due; the Client enters into a compromise or other similar arrangement with its creditors generally; and/or the Client breaches any provision of these terms and, despite demand calling on it to remedy such breach, fails to remedy such breach within 14 days, to the satisfaction of Pargo.
- A certificate signed by a director of Pargo as to the amounts due and payable by the Client to Pargo in terms of this agreement shall, save for in the case of manifest error, be prima facie proof of the amounts owing.
- Pargo may, on 30 day’s prior written notice to the Client, increase its Fees, should Pargo, acting in good faith, deem it necessary as a result of factors outside its control, such as an increase in fuel costs, Courier costs, or otherwise. The pricing for the Services will automatically escalate annually on 1st March by the same percentage as the average Consumer Price Index in the preceding twelve months.
- Parcels with a value of R1 000.00 or less are automatically insured by Pargo’s insurance. Should the Client wish to opt-out of the basic insurance cover, add to the basic insurance cover, or insure Parcels with a value higher than R1 000.00, it must email Pargo at [email protected] The terms and conditions relating to insurance cover are available upon request.
- Pargo will not carry, handle or transport any unlawful, dangerous or prohibited goods, including dangerous, hazardous or combustible materials which are or may become (by their nature) liable to cause injury or damage to persons, goods or property, including, acids, chemicals, explosives or radioactive material, fire-arms or parts thereof, drugs, live or dead plants or animals, , precious stones (including commercial carbons or industrial diamonds) precious metals, gold or silver in the form of bullion, cyanides, precipitates or any other form, currency (paper or coin) of any type, negotiable securities, bonds, certificates, coupons or stamps, negotiable cheques, money orders or traveller’s cheques and any other carriage of goods which is prohibited by any applicable laws, rules and/or regulations.
- If Pargo, in its discretion, suspects that a Parcel contains any of the goods contemplated in clause 5.1, such Parcel may be returned, destroyed and/or notified to the appropriate authorities.
- Only Parcels weighing up to 15kg and with dimensions up to 40cm x 40cm x 40cm will be accepted by Pargo. The Client must contact Pargo in advance if a Parcel is, or is likely to be, either heavier than 15kg or having its longest side greater than 40cm. The actual weight of a Parcel will be measured and weighed, and the Client will be charged applicably.
- Pargo reserves the right to refuse a Parcel if a Parcel is not clearly and correctly addressed and/or packaged and/or otherwise doesn’t comply with the provisions of this clause 5.
REGISTRATION AND ACCESS TO THE PLATFORM
- Access to the Platform is granted to the Client and the Client’s authorised users.
- The Client must ensure that each of its authorised users are familiar with, and comply with these terms.
- While Pargo endeavours to maintain the operation of the Platform, it cannot guarantee continuous, uninterrupted or secure access to the Platform. Pargo will not be liable for any loss suffered by the Client and/or any third party as a result of the Platform not being available for any period of time.
- The Client must treat all login details, including user identification name(s) and password(s) (“login details”) as confidential and keep them secure, and must not:
- disclose the login details to any third party;
- store such login details in any form (whether encrypted or encoded or otherwise) in any location where such details could be copied, utilised or distributed by any other person, virus, software or any other third party; and/or
- allow or enable a third party to access the Platform using the login details.
- Should the Client become aware of any unauthorised use and/or compromise of its login details, it must immediately notify Pargo.
- Pargo has the right to disable the Client’s login details where the Client has breached these terms.
RULES RELATING TO THE USE OF THE PLATFORM
- In using the Platform, the Client must not:
- breach any applicable laws;
- breach these terms and/or any Related Documents;
- send any communication or submit any information to Pargo which is false, misleading or deceptive;
- infringe the rights of any third-party;
- copy, disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Platform;
- distribute viruses or other harmful technology with may cause harm to Pargo, the Platform, other users or any other person;
- attempt to impose or contribute to imposing an unreasonable load on our infrastructure or interfere with the proper working of the Platform;
- copy, modify or distribute rights or content from the Platform; and/or
- bypass any security measures on the Platform.
- allow or enable any unauthorised person to access the Platform”
INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property will be the sole and exclusive property of Pargo, and the Client will not have any ownership right or interest to such Intellectual Property.
- The Client will not use the Intellectual Property other than pursuant to the agreed provision of the Services.
- The Client will not modify, sell, copy, sub-licence or allow third-party access to, any of the Intellectual Property.
REPRESENTATIONS, INDEMNITY AND LIMITATION OF LIABILITY
- Pargo makes no warranty or representation as to the suitability of the Platform and/or the Services for any particular purposes.
- Other than as a result of Pargo’s gross negligence or wilful misconduct, Pargo has no liability to the Client for any loss, liability, damage and expense suffered by the Client.
- Notwithstanding clause 9.2, Pargo shall not be liable to the Client for indirect, special or consequential losses, claims, damages or liabilities, whether in contract or delict or otherwise, based on these terms, or any obligation performed or undertaken or not performed or undertaken in terms of or in connection with these terms, and shall not be liable to the Client for losses sustained or incurred by the Client which is attributable to or arises out of any act or omission on the part of a third party, including the Courier.
- The Client indemnifies and holds harmless, to the fullest extent permitted by law, Pargo as well as its directors, shareholders, employees, agents, independent contractors, and other representatives (“Indemnified Party“) against all loss, liability, damage and expense which an Indemnified Party may suffer as a result of or which may be attributable to a breach of these terms by the Client, any wilful or negligent or wilful act or omission on the part of the Client in connection with the Services or as otherwise arises out of or is connected to any wrongful act or omission of, or attributable to, the Client.
- The handling, storage and/or transportation by Pargo or the Courier of fragile goods (such as glassware) or electronics in terms of this agreement, is solely at the Client’s risk, and, without limiting the generality of this clause 9, Pargo accepts no liability for damage in this regard. Similarly, Pargo is not responsible for Parcels returned by the Client’s customers to outlets outside of the outlets’ opening hours.
- “Force Majeure” means, in relation to Pargo, any circumstances beyond the reasonable control of Pargo. Pargo shall not be liable or considered in breach of these terms as a result of any delays or failures of performance of its obligations under these terms if and to the extent that such delay or failure is caused by a Force Majeure event. If a Force Majeure event occurs, Pargo shall notify the Client as soon as reasonably possible of the nature and extent of the Force Majeure event.
- If Pargo is affected by Force Majeure, Pargo shall be entitled to, and may in its sole and absolute discretion, vary or cancel any applicable Services. Payment of any refund by Pargo to the Client as a result of the non-performance of any of Pargo’s obligations hereunder shall remain at its sole and absolute discretion.
- Each party (“Receiving Party“) may during the course of these terms acquire and/or will be involved in the creation and development of each other’s confidential information, being such information which is not readily available to a competitor of the party disclosing such information (“Disclosing Party“) in the ordinary, normal and regular course of business, and which is not readily accessible by or ascertainable to the general public (“Confidential Information“).
- The Receiving Party undertakes that it shall not, for the duration of these terms or at any time thereafter, directly or indirectly, use, employ, exploit, divulge or disclose to others (except as may be required to carry out its obligations in terms of these terms) in any manner whatsoever the Confidential Information belonging to the Disclosing Party without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall be incumbent on the Receiving Party to obtain the consent of such third party.
- The provisions of this clause 11 shall survive termination of these terms for any reason whatsoever.
CONSENT TO USE PERSONAL INFORMATION
The Client hereby consents to the collection and processing of its and its customers’ personal information by Pargo and/or the Courier, for the purposes of delivering the Services. The Client must ensure that its customers have consented to the processing of their personal information in this regard.
Pargo shall not use any data or personal information concerning the Client and/or the Client’s customers for any reason other than as may be necessary to perform the Services and shall not otherwise disseminate or store such information or data. To the extent that any personal information is processed by Pargo pursuant to rendering the Services, Pargo shall have in place adequate technical and organisational measures to ensure the security and confidentiality of such data.
TERMINATION AND BREACH
Either party (“Notifying Party“) shall be entitled to terminate the provision of the Services, without cause, upon 30 days’ written notice to the other party (“Notified Party“), in which event the Notified Party shall have no claim of whatsoever nature against the Notifying Party as a result of the termination.
If either party breaches these terms, and fails to remedy such breach within 14 days (or other reasonable period necessary in the circumstances) of delivery of written demand to do so, then the aggrieved party may, in addition to any other legally available remedy, cancel the provision of the Services, or claim specific performance, without prejudice to its right to claim damages.
- After the termination of these terms for whatever reason the Client will no longer be able to access the Platform or use the Services.
If a dispute arises in connection with these terms, or its termination or invalidity, the dispute shall be settled by mediation and shall be referred to a suitably qualified independent mediator agreed between the parties in writing, or failing agreement, to a suitably qualified independent mediator appointed by the Arbitration Foundation of Southern Africa (“AFSA“).
If for any reason, a dispute is not settled by mediation, the dispute shall be settled by arbitration. The arbitrator shall be a suitably qualified independent person agreed between the parties in writing, or failing agreement, shall be an arbitrator appointed by AFSA. The arbitration shall be conducted in accordance with the AFSA Rules for Commercial Arbitration.
Nothing in this clause shall prevent either party from seeking interim and/or urgent relief from a court of competent jurisdiction or for payment of a liquidated amount of money.
NO RIGHT TO CEDE
- Pargo may cede or transfer any or all of its rights or delegate or transfer any or all of its obligations in respect of these terms without the prior consent of the Client. The Client shall not be entitled to cede any of its rights herein without Pargo’s prior written consent, except if such rights are ceded to an Affiliate of the Client. If the Client cedes or transfers any of its rights herein to a Client Affiliate and the Client has agreed to pay the fees according to the credit payment terms under 4.4 then the Client agrees to give Pargo notice of the change and to complete any additional credit information in respect of the Client Affiliate.
LEGAL ADDRESS AND NOTICES
For the purposes of the giving of notices and the serving of legal process, each of the parties chooses the addresses specified at the front of these terms (“Legal Address“.)
Any notice or communication required or permitted to be given shall be valid and effective only if in writing but it shall be competent to give notice by e-mail.
A written notice or communication actually received by a party shall be an adequate written notice or communication to it even though it was not sent to or delivered at its chosen Legal Address.
STIPULATIO ALTERI (CONTRACT FOR THE BENEFIT OF A THIRD PARTY)
- To the extent that any provision of these terms constitute a stipulatio alteri, conferring a benefit on any person who is not a party to these terms, such benefit shall be capable of acceptance at any time by such person.
Any amendment or cancellation of these terms must be agreed between the parties in writing.
These terms and the applicable Related Document(s) encompasses the whole and only agreement between the parties relating to its subject matter. No term, representation, or warranty is binding unless set out in these terms and/or the Related Document(s).
No indulgence or waiver of any provision of these terms shall be binding unless given by the relevant party in writing.
In these terms:
- clauses shall continue to operate after the termination of these terms if necessitated by their nature;
- its provisions shall not be interpreted against the party drafting it;
- the words “include”, “including” and “in particular” are by way of example only and shall not limit the generality of any preceding words;
- if any provision becomes illegal, invalid or unenforceable, such provision shall be severed, to the extent of its illegality, invalidity or unenforceability, from the balance of these terms; and
- the words “other” and “otherwise” shall be interpreted as widely as possible and will not be limited by any preceding words.