this case and as such the Exclusion clause should be enforced by this Court. As far as the case of Express Transport Co. Ltd -vs- BAT Tanzania Limited, the following extract from the case has been made by Counsel for the Plaintiff: "Any clause excluding liability would be construed as relating to only that liability which would arise without negligence, unless it was quite clear that liability for negligence was also excluded." Counsel contended that this statement is distinguishable from the facts of this case because, the liability in question was without negligence, and as observed earlier no negligence has been imputed or been pleaded against the Defendant. In the case of Stella Twinebirungi-vs- Akamba Public Service Ltd. Civil Sit No.24 of 2004, Justice Geoffrey Kiryabwire, accepted and allowed the enforcement of an Exclusion clause exempting liability where the same had been brought to the attention of the Plaintiff. Counsel submitted that in this case the Exclusion clause was brought to the attention of the Plaintiffs, and they have not brought any evidence to rebut that assertion, and accordingly the Exclusion clause kicks in to exclude the Defendant from liability. In rejoinder on issue No. 1 the plaintiff counsel submitted as follows: Counsel submitted that the defendant is liable to the plaintiff for the loss of goods. The instructions to carry the goods are not denied. The loss of the goods is not denied. As such the Defendant admits that the terms of the contract were breached. The defendants position is that they were carriers by contract under the terms stipulated Exhibit D2 (ii) and Exhibit D3. Counsel contended that in the instant case there was no signed agreement and no terms are incorporated unless reasonable steps have been taken to draw them to the attention of the other party prior to or at the time of the agreement and this is the position of the law as set in PARKER V SOUTH EASTERN RLY [1877] 2 C.P.D 416. He submitted that relying on the above cited cases the Plaintiff has to unequivocally agree to be bound by the terms being advanced by the Defendant. Learned Counsel further submitted that the burden to prove that the terms and conditions of service were communicated to the Plaintiff lay upon the Defendant who has failed to prove that the same were brought to the attention of the Plaintiff. The burden of proof is upon the defendant as stipulated under section 8 (2) of the Electronic Transactions Act, Act 8 of 2011. 13