Cash in transit agreement (sample agreement in kenya)

CASH IN TRANSIT AGREEMENT

THIS AGREEMENT is made the …….. day of …………………………. Two Thousand and One BETWEEN VVVVVVVVVVSERVICES KENYA LIMITED  of Post Office Box Number ,,,,,,,,,,, Nairobi in the Republic of Kenya of the one part (hereinafter called “the Company”) and CCCCCCCC of Post Office Box Number ,,,,,,,,,,,,, Nairobi in the said Republic (hereinafter called “the Customer”) of the other part:

WHEREBY IT IS AGREED as follows:

1.                  INTERPRETATION

1.1       In this Agreement, unless the context otherwise requires the following expressions shall have the following meanings:

1.1.1       “Additional Services” means any services which are to be performed by the Company as agreed pursuant to clause 2.3 of this Agreement;

1.1.2       “Charges” means the sum specified in the Second Schedule hereto which is payable by the Customer in respect of the Services;

1.1.3       “Commencement Date” means the ………… day of …………………. 2001;

1.1.4       “Company’s Representative” means an employee of the Company who shall be designated or authorised by the Company from time to time, either expressly or impliedly, to deliver the Valuables.

1.1.5       “Container” means any bag, box or other portable receptacle into which any Valuables may be placed;

1.1.6       “Customer’s Relevant Consignee” means any person into whose custody the Customer shall, from time to time, expressly authorise the Company in writing to deliver Valuables at the Relevant Delivery Point;

1.1.7       “Excepted Risks” means any of the following

(a)              War , invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion, military or usurped power or loot, sack or pillage in connection therewith;

(b)              Ionizing radiation or contamination by radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel;

(c)              Radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

(d)             Pressure waves caused by aircraft and other aerial devises travelling at sonic or supersonic speeds;

1.1.8       “Initial Period” means the period of 12 months from the Commencement Date;

1.1.9       “Period of the Company’s Responsibility” means in relation to each consignment of Valuables or individual parts thereof, the period in which the Valuables are in the “custody of the Company”.  For the purposes of this Agreement, Valuables shall be in the “custody of the Company” from the moment when the Company’s representative takes physical possession of the Valuables at the Relevant Collection Point and commences to transport such Valuables to the Company’s vehicle until either the moment when the are physically handed over or tendered to the  Customer’s Relevant Representative at the Relevant Delivery Point, or in the case of Valuables to be deposited in a night safe, the moment when they are deposited in the night safe at the Relevant Delivery Point, or where Valuables are to be deposited in a automated teller machine, the moment when the Company’s Representative has closed the Automated teller machine.;

1.1.10  “Relevant Collection Point” means the address or addresses to which any Valuables are to be collected or taken into the custody of the Company;

1.1.11  “Relevant Delivery Point” means the address or addresses to which any Valuables are to be delivered by the Company;

1.1.12  “Services” means the services described in the First Schedule hereto which are to be performed by the Company and all other obligations of the Company hereunder, including on agreement in accordance with clause 2.3;

1.1.13  “Termination Date” means the ….. day of …………200…

1.1.14  “Valuables” means each consignment of the following or individual parts thereof:

(a)              Bank and currency notes, cash, negotiable instruments including cheques (crossed or uncrossed, bankers or otherwise), deposit receipts, postal or money orders, postage or revenue stamps, national hospital insurance stamps (whether affixed to cards or otherwise) and other similar valuables or any property in respect of which the Company may be requested by the Customer to undertake any of the Services; and

(b)              Securities, gems, jewellery, bullion, precious metals and any other property of any nature in respect of which the Company may be requested by the Customer to undertake any of the Services.

1.2             Except where the context requires otherwise, the singular includes the plural and vice versa; a reference to one gender includes all genders; words denoting persons include firms and corporations and vice versa.

1.3             Headings are included in this Agreement for ease of reference only and shall not affect its interpretation or construction.

1.4             The words “include” or “including” shall be construed without limitation to the words following.

1.5             Any reference to “Company” or “Customer” includes that party’s successors and permitted assigns.

2.               THE SERVICES

2.1             The Company agrees to perform the Services, in consideration of the payment of the Charges by the Customer, and upon the terms and conditions of this Agreement.

2.2               The performance of the Services by the Company shall commence on the Commencement Date and shall continue during the term of this Agreement subject to termination as herein provided.

2.3               The Company undertakes to perform, at any time during the term of the Agreement, such Additional Services as may be agreed by the parties.  Such Additional Services shall be incorporated into an addendum to the First Schedule and signed on behalf of the Customer and the Company and shall be performed in accordance with and subject to the terms and conditions of this Agreement.

3.                  DURATION AND RENEWAL

3.1             This Agreement shall come into force on the Commencement Date and shall continue in force for the Initial Period or until the Termination Date (whichever is earlier) and thereafter until terminated by either party giving three (3) months written notice to the other or until this Agreement is otherwise terminated in accordance with its terms or is otherwise lawfully terminated.

4.                  CHARGES

4.1             In consideration of and subject to the performance of the Services in accordance with the terms of this Agreement the Customer shall pay the Charges set out in the Second Schedule.

4.2             Payment of the Charges shall be made monthly in advance, the first payment to be made on the Commencement Date.

4.3             The Charges may be varied only in accordance with the following procedure:

4.3.1       The Company shall give one (1) month’s notice of its intention to increase its Charges to the Customer (“Notice of Increase”) and such increased Charges shall, subject to clause 4.3.2, have immediate effect thereafter.

4.3.2       Upon receipt of the Notice of Increase, the Customer may within fourteen (14) days from the date of receipt of the notice, give to the Company one (1) month’s notice in writing of its intention to terminate this Agreement (“Notice of Termination”).

4.3.3       If a Notice of Termination is served upon the Company, the Charges for the period of the Notice of Termination shall be the rate payable before the Notice of Increase.

4.4             The Company shall be entitled to make reasonable additional charge to reflect any additional costs incurred by the Company in performing the Services:

4.4.1       If the performance of its obligations under this Agreement would require the Company to perform the services on a bank or other public holiday.

4.4.2       If the Customer requests the Company and the Company agrees to carry out the services on any day other than that specified in the schedule.

4.5             In addition to the Charges and subject to receipt of a valid VAT Invoice, the Customer shall pay all Value Added Tax on the Charges at the rate and in the manner prescribed by law from time to time;

4.6             The Company reserves the right to charge the Customer interest in respect of the late payment of any sum due under this Agreement at the rate of …..% per annum from the due date therefor until payment.

5.                  CUSTOMER’S OBLIGATIONS

5.1             The Customer hereby undertakes to the Company that:

5.5.1       The Customer’s Relevant Consignee shall accept delivery of the Valuables which will be delivered to it pursuant to this Agreement at the Relevant Delivery Point and on such delivery, the Customer’s Relevant Consignee shall issue to the Company’s representative a signed receipt or other written acknowledgment of receipt of the Valuables.  Such acknowledgment shall be conclusive evidence of the delivery of the Valuables save where such receipt has been issued or obtained as a result of any fraud or other dishonesty on the part of the Company’s representative or as a result of any fraudulent or dishonest collusion between the Company’s representative and the Customer’s Relevant Consignee.

5.5.2       In the event of a strike by the Customers employees, the Company’s representatives shall not be requested to perform any additional duties or duties of a strike breaking nature.

6.                  COMPANY’S OBLIGATIONS

6.1             The Company hereby warrants and represents to the Customer that:

6.1.1       It has the full capacity and authority and all necessary licences, permits and consents (without limitation) to enter into and to provide the services under this Agreement and to enter into this Agreement and any other document to be entered into by it hereunder;

6.1.2       This Agreement constitutes valid, binding and enforceable obligations of the Company in accordance with its terms;

6.1.3       The Services shall be supplied, performed and rendered by appropriately experienced, qualified and trained personnel with all due skill, care and diligence.

6.1.4       The Company shall discharge its obligations pursuant to this Agreement with all due skill, care and diligence including (without limitation) good industry practice and (without limiting the generality of this clause) in accordance with its own established internal procedures.

6.2             The Company shall not be obliged to perform any Services in the following circumstances:

6.2.1       If such performance would be unlawful.

6.2.2       If such performance is rendered impossible by reason of the Excepted Risks.

6.2.3        If such performance would be likely to involve the Company in conflict with a third party on a political or quasi-political issue or in connection with a civil dispute.

6.2.4       If such performance is rendered impossible by any cause beyond the Company’s control, or by reason of strikes, lock-outs, labour disputes or mechanical breakdown, provided that in the case of mechanical breakdown of any of its vehicles, the Company shall use its best endeavours to provide a replacement vehicle with the minimum practicable delay.

6.3   The Company undertakes to and shall indemnify the Customer against all claims, demands, actions, costs, expenses, losses or damages arising from

6.3.1       The loss of or damage to Valuables during the Period of the Company’s Responsibility provided that the Company’s liability under this sub-clause (a) shall be limited to the maximum amount of K.Shs.60,000,000/=.

6.3.2       The death or personal injury to the Customer’s employees during the Period of the Company’s Responsibility arising from the Company’s negligence.

6.3.3       The direct loss of or damage to physical property (other than Valuables) of the Customer during the Period of the Company’s Responsibility caused by the Company’s negligence.

6.3.4       Any default by the Company in the performance of the Services or otherwise relating to or arising from this Agreement (including by negligence or delay), provided that the Company’s liabilities under this sub-clause (d) shall be limited to the maximum amount of K.Shs.60,000,000/=.

7         INSURANCE

7.3               Throughout the duration of this Agreement, the Company shall take out and maintain, at its sole expense, insurance against its liability for the Valuables under this contract with a reputable insurer and the Customer shall be named as loss payee under such insurance.  For the avoidance of doubt, the indemnity limit in this insurance shall not be less than the greater of the maximum liability of the Company under clause 6.3 and shall include coverage against such liability occurring due to the acts (whether negligent, fraudulent, dishonest or criminal) of the Company’s employees as well as burglary, robbery, theft, fire and mysterious disappearance.

7.4               On the Commencement Date of this Agreement and upon request by the customer from time to time, the Company shall provide to the Customer certificates or other reasonably satisfactory documentation as evidence that the insurance required under this Agreement is in full force and effect.

7.5               The Company undertakes to notify the customer forthwith and in any event within thirty days of any material reduction, termination, alteration or cancellation of the policy required to be obtained pursuant to clause 7.1

8         LIABILITY

8.1             Neither party excludes or limits liability for death or personal injury caused on account of the negligence or default of that party.

8.2             Without prejudice to clause 8.1, in no event shall either party be liable to the other for;

8.2.1   Loss of profits (whether direct or indirect), business, revenue, goodwill or anticipated savings; and/or

8.2.2       Indirect or consequential loss or damage.

8.3             Each party shall be liable to the other for direct loss.  For purposes of this clause, direct loss shall include:

8.3.1   In relation to a default, the proper and reasonable costs arising from that default necessarily or reasonably incurred to remedy that default.

8.3.2       Any other loss which under Kenyan Law would properly be considered as direct loss (direct loss, for the avoidance of doubt excluding consequential loss for this purpose) and

8.3.3       (in the case of the Customer only) The proper and reasonable costs incurred by the Customer in obtaining substitute services together with all proper and reasonable costs associated therewith in any case necessarily or reasonably incurred to put the Customer so far as possible in the same position as it would have been had there been no default.

8.4             The parties expressly agree that should any limitation or provision contained in this clause be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted, but if any party thereby becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out herein.

9        LIMITED EXCLUSION OF LIABILITY

9.1       It is hereby agreed between the Customer and the Company that the servants and agents both for the Company and the Customer shall bear no individual liability whilst performing the services in the course of their employment for any loss of or damage to the Valuables or any other loss or damage suffered by the Customer or the Company or by any third party howsoever such loss or damage shall have been occasioned except in so far as such loss or damage shall have been caused by any fraudulent, dishonest or other criminal act by such servant or agent.

10   INDEMNITY BY CUSTOMER

10.1         Subject to clause 10.2, if a third party shall make any claim upon the Company, its servants or agents outside and beyond the liability of the Company to the Customer under the terms hereof in respect of any Valuables, then the Customer shall indemnify the Company, its servants or agents in respect of such claims and all costs thereof unless such loss or damage is caused by the negligent, dishonest, criminal or fraudulent act of the servant or agent of the Company.

10.2         The indemnity granted by the Company shall exclude any liability to the Company or any third party arising from the negligent, dishonest, criminal or fraudulent act of the servant or agent of the Company.

11   INDEMNITIES

Where any indemnity (“Indemnity”) is given by one party (“Indemnifying Party”) to the other (“Other Party”) the following terms shall apply to the claim, demand or action to which the indemnity applies (in this clause 11, “Relevant Claim”)

11.1         The Indemnifying Party shall Indemnify the other party against its legal costs and disbursements in relation to the Relevant Claim.

11.2         Each party shall promptly notify the other in writing of any circumstance that would reasonably give raise to a Relevant Claim within twenty-one (21) days immediately following the discovery thereof.

11.3         The Other Party  shall not make any admission or compromise (save where required by court order or by governmental regulations) which is prejudicial to the defence  or settlement of any matter in respect of any to which the Indemnity applies without the consent o the Indemnifying Party, such consent not to be unreasonably withheld or delayed.

11.4         The Other Party shall supply all reasonable assistance required by the Indemnifying Party for the purpose of contesting any Relevant Claim on receiving an Indemnity from the Indemnifying Party in a form reasonably acceptable to it against its cost and expenses (including legal costs and disbursements) incurred in doing so.

12   TERMINATION

12.1         Either party shall be entitled to terminate this Agreement by giving not less than thirty (30) days written notice to the other.

12.2         Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if:

12.2.1  That other party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within …… days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.

12.2.2  An encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party.

12.2.3  That other party makes any voluntary arrangement with its creditors or becomes subject to an administration order.

12.2.4  That other party makes an assignment for the benefit of, or composition or similar arrangements with any of its creditors.

12.2.5  That the other party goes into liquidation (except for the purposes of amalgamation or reconstruction and n such manner that the Company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement).

12.2.6  That the other party ceases, or threatens to cease, to carry on business.

12.2.7  If the Customer fails to comply within [……] days after the receipt of a written notice with any reasonable security recommendations of the Company.

12.2.8  If the performance of any of the Services is suspended pursuant to clause 6.2 for a period exceeding fourteen (14) days.  

12.3         For the purposes of clause 13.2, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects including as to the time of performance (the time of performance shall be deemed to be of the essence).

12.4         Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of this Agreement.

12.5         The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

13   CONSEQUENCES OF TERMINATION

13.1         Upon termination of this Agreement for any reason,

13.1.1  Any outstanding charges shall remain due and payable by the customer to the Company in accordance with the terms of this Agreement or, if the customer has paid any charges in advance, the Company shall repay all such charges other than money, in respect of any services or part thereof properly performed in accordance with this Agreement.

13.1.2  Neither party shall have any claim against the other for compensation, for loss of any rights, loss of goodwill or any similar loss.

13.2         Subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.

14   GENERAL

14.1         This Agreement is personal to the Company.  The Company shall not assign, novate, sub-contract or otherwise dispose of this Agreement or any part thereof without the previous consent in writing of the customer which may be withheld at the customer’s sole discretion.

14.2         This Agreement shall constitute the whole of the terms agreed between the parties hereto in respect of the subject matter of this Agreement.

14.3         This Agreement shall be capable of being varied only by a written instrument signed by a duly authorised officer or other representative of each of the parties.

14.4         This Agreement is severable in that if any provision is determined to be illegal or unenforceable by any court or jurisdiction, such provision shall be deemed to have been deleted without affecting the remaining provisions of this Agreement.

14.5         Nothing in this Agreement shall constitute or be deemed to constitute a partnership, agency or joint venture between the parties hereto or constitute or be deemed to constitute either party the agent of the other for any purpose whatsoever and neither party shall have any authority or power to bind the other or contract in the name of or create a liability against the other.

14.6         Unless otherwise agreed in writing, no failure by either party to exercise any right or remedy available to it hereunder nor any delay so to exercise any such right to remedy shall operate as a waiver of it nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

14.7         Any notice, request or other communication to be given or made under this Agreement by either party shall be in writing and shall be deemed to have been properly served if delivered or sent by any party by registered post, hand or facscimile (with confirmation by letter posted within 24 hours) to the other party at the address stated below or such other address as may from time to time be notified in accordance with the provisions of this Clause.

For the Customer: VVVVVVVVVVV

                                   FFFF House

                                   LLLLL Road

                                   P. O Box

                                   NAIROBI

                                   Telephone:   ,,,,,,,,,,

                                   Facsimile:     ,,,,,,,,,,,

                                   Attention:    Assistant General Manager

For the Company: KKKKKKKKKKKK  Services Kenya Limited

                                   Head Office

                                   P. O Box

                                   NAIROBI

                                   Telephone:   ,,,,,,,,,,,,,,,,,

                                   Facsimile:     ,,,,,,,,,,,,

14.7.1  Communications shall be deemed to have been received:

(a)              if sent by registered post: 10 business days after posting exclusive of the day of posting; notwithstanding that it be undelivered or returned undelivered.

(b)              if delivered by hand: on the day of delivery;

(c)              if sent by facsimile transmission: at the time of transmission.

            14.8.2 In proving service:

(a)              by delivery by hand: it shall be necessary only to produce a receipt for the communication signed by or on behalf of the addressee;

(b)              by post or facsimile transmission: it shall be necessary only to prove that the communication, or letter of confirmation, was contained in an envelope which was duly addressed and posted in accordance with this clause.

14.8         This Agreement shall be governed and construed in accordance with the laws of Kenya.  

14.9         In the event of any dispute arising between the parties hereto then such dispute (if not resolved by mutual agreement within thirty (30) days) shall be referred for arbitration to a single arbitrator chosen by mutual agreement of the parties.  In default of agreement or failing such agreement upon an arbitrator within seven (7) days from the time when the appointment of an arbitrator is proposed by either party to the other, then the dispute shall be referred to a single arbitrator (being a Chartered Accountant, a Certified Public Accountant or an Advocate of the High Court of Kenya of not less than 10 years standing in practice) appointed by the Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch) and the provisions of the laws of Kenya then in force as to arbitration shall apply to such dispute.

IN WITNESS WHEREOF this Agreement has been duly executed by the parties the day and year first herein before written.

FIRST SCHEDULE

The Service

SECOND SCHEDULE

The Charges

SIGNED by (name)… …… … … … … … … )

(capacity) …………………………………..     )

the duly authorised representative of the                 )

CUSTOMER                                                         )

in the presence of:                                                )         

                                                                                  )

                                                                   )

SIGNED by … …… … … … … … … ………           )

(capacity) ………………………………….      )

as the duly authorised representative of the )

COMPANY                                                           )

in the presence of:             

DRAWN BY;

JUNGU ATTORNEYS

P.O.Box 00000

DAR ES SALAAM TANZANIA.