AAD LOGISTICS (PTY) LTD
STANDARD TRADING TERMS AND CONDITIONS
1. INTERPRETATION AND DEFINITIONS
1.1 Unless the contract otherwise requires the following words shall have the meaning herein ascribed to them
1.1.1 ‘COMPANY’ means AAD LOGISTICS (PTY) LTD under whatever trade name it may assume from time to time
1.1.2 ‘CUSTOMER’ shall mean any person at whose request or on whose behalf the COMPANY undertakes or render any BUSINESS
1.1.3 ‘PARTY/IES’ means either or both, as the context requires of the parties referred to in 1.1.1 and 1.1.2 above
1.1.4 ‘GOODS’ means any goods coming under the control of the COMPANY on behalf of any CUSTOMER and shall include any CONTAINER, transportable tank, bolater, pallet, package or other covering not supplied by or on behalf of the COMPANY
1.1.5 ‘BUSINESS’ means all and any business undertaken, including any advice, information or service provided, whether gratuitously or not, by the COMPANY
1.1.6 ‘the STANDARD TRADING TERMS AND CONDITIONS’ means the terms and conditions here in after set out
1.1.7 ‘CONTAINER’ means an article of transport equipment constructed to the specifications of the International Standard Organisation, including all its ancillary equipment.
1.2 The construction, validity and performance of the STANDARD TRADING TERMS AND CONDITIONS and any other terms and/or conditions agreed between the PARTIES and the determination of any other dispute between the PARTIES arising out of the alleged improper or non-performance thereof based on any cause of action whatsoever shall be governed in all respects by the law of the Republic of South Africa.
1.3 The headnotes and sub-headnotes hereof are inserted for convenience only and shall not be relevant for the purpose of interpretation.
1.4 Unless inconsistent with the context, any expression which denotes –
1.4.1 the singular includes the plural and vice versa
1.4.2 any gender includes the other genders
1.4.3 a natural person includes an artificial person and vice versa.
2. APPLICATION OF STANDARD TRADING TERMS AND CONDITIONS AND OTHER PROVISIONS
2.1 BUSINESS is undertaken by the COMPANY subject to the STANDARD TRADING TERMS AND CONDITIONS which shall be deemed to be incorporated in and be a part of any agreement between the COMPANY and its CUSTOMERS.
2.2 The COMPANY shall be deemed to act neither as a common carrier nor a public carrier and deals with goods only on the basis set out in the STANDARD TRADING CONDITIONS.
2.3 Unless the PARTIES agree, in writing, specifically to the contrary the STRANDARD TRADING TERMS AND CONDITIONS shall prevail in the event of the CUSTOMER itself having standard trading conditions, even if the latter conditions are apparently incorporated after the STANDARD TRADING TERMS AND CONDITIONS.
2.4 No agent or employee holds or has the COMPANY’S authority to alter or vary the STANDARD TRADING TERMS AND CONDITIONS nor shall any act or omission of the COMPANY be construed as a variation or waiver of any of the STANDARD TRADING TERMS AND CONDITIONS.
2.5 The CUSTOMER warrants that it has authority to engage the services of the COMPANY and to contract on the basis of the STANDARD TRADING TERMS AND CONDITIONS.
2.6 The person representing the CUSTOMER in contracting with the COMPANY warrants that he is duly authorised to do so.
2.7 If any legislation is compulsorily applicable to any BUSINESS undertaken by the COMPANY that legislation shall be incorporated herein and if part of the STANDARD TRADING TERMS AND CONDITIONS be contradictory to such legislation, such part shall as regard such BUSINESS be void to that extent but no further.
2.8 To the extent that the COMPANY is fulfilling its obligation to the CUSTOMER subject to rights and obligations, whether contractual or otherwise, with third parties (whether acting as agents or subcontractors to the COMPANY or not) which are more onerous to the COMPANY (30) days from the date than those contained in the STANDARD TRADING TERMS AND CONDITIONS and any other terms and or conditions agreed between the PARTIES, those more onerous rights and obligations shall be incorporated herein and so be passed on to the CUSTOMER in its relationship with the COMPANY, whether or not inconsistent with the STANDARD TRADING TERMS CONDITIONS and any other terms and/or conditions agreed between the PARTIES.
2.9 No indulgence or relaxation of rights granted by the COMPANY to the CUSTOMER shall be prejudicial to or constitute a waiver of any of the COMPANY’S right under the STANDARD TRADING TERMS AND CONDITIONS and any other terms and/or conditions agreed between the PARTIES or at law and any waiver of rights by the COMPANY shall not be construed as such unless reduced to writing and signed by the PARTIES.
2.10 Each and every undertaking contained in the STANDARD TRADING TERMS AND CONDITIONS and any other terms and/or conditions agreed between the PARTIES shall be capable of independent enforcement, thus enabling any court or other competent tribunal to enforce the remainder thereof should it adjudge any particular undertaking/s or portions thereof to be invalid.
2.11 The STANDARD TRADING CONDITIONS shall apply to any further or additional work carried out for the CUSTOMER.
2.12 The COMPANY is entitled to amend the STANDARD TRADING TERMS AND CONDITIONS and to publish supplementary terms and conditions. All amendments and supplements shall take effect thirty (30) days from the date on which such amendment or supplement is made by the COMPANY. As and when any such amendment or supplement is made such amendment or supplement shall be available at the offices of the COMPANY. Whilst the COMPANY will take reasonable steps to publicise amendments its failure to do shall not in any way prevent the amendment or supplement effect.
3.1 Quotations based on dimensions and weights furnished by a CUSTOMER shall be altered in the event of actual dimensions and weights proving different to those stated. Where necessary, the COMPANY may delay the collection of a load until abnormal permits have been obtained or amended accordingly.
3.2 Quotations for classes of GOODS and destinations not covered by the COMPANY’S Permit issued under the Road Transportation act are given on condition that a Temporary Permit can be obtained under that Act.
3.3 Unless specified otherwise within the body of any quotation given by the COMPANY, reference to tonnage shall be deemed to refer to metric tons (i.e. 1000 kilograms).
4. INSTRUCTIONS BY THE CUSTOMER
4.1 Wherever it is necessary, for the purpose of these conditions or any other purpose whatever, for instructions to be given to the COMPANY, such instructions shall be recognised by the COMPANY as valid, only if timeously given specifically in relation to the matter in question. Standing or general instructions or instructions given late, even if received by the COMPANY without authorization, shall not be binding upon the COMPANY.
4.2 In addition, in order to render such instructions valid, they shall either be given in writing or, owing to the urgency of the situation it is not practicable to give same in writing they shall be given orally and thereafter confirmed in writing as soon as reasonably practicable.
4.3 In the absence of written instructions the COMPANY shall be entitled in its sole discretion to determine the means, route and procedure to be followed in performing the BUSINESS.
4.4 If at any stage in any transaction the COMPANY should consider that there is good reason, making it advisable in the CUSTOMER’S interest to depart from any of the CUSTOMER’S instructions, the COMPANY shall be permitted to do so, and it shall not thereby incur any additional liability.
5. DESCRIPTION OF GOODS
5.1 The CUSTOMER shall prior to delivery of the GOODS to the COMPANY provide the COMPANY with documentation giving a full description of the GOODS.
5.2 The CUSTOMER warrants the accuracy of all descriptions, values and other particulars in respect of the GOODS furnished to the COMPANY for inter alia, Customs, Consular and other purposes whatsoever.
5.3 The CUSTOMER indemnifies the COMPANY against all losses, damages, expenses and fines arising from any inaccuracy or omission in that respect.
5.4 All GOODS in respect of which the COMPANY does not receive a document giving a full accurate description thereof prior to their delivery to the COMPANY shall be handled by the COMPANY, it’s servants, agents and independent contractors entirely at the CUSTOMER’S risk.
5.5 In all cases where there is a choice of tariff rates or premiums offered by carriers, warehousemen, underwriters, or others depending upon the value declared or the extent of the liability assumed by the carrier, warehousemen, underwriter or other person, it shall be in the entire discretion of the COMPANY as to what declaration, if any, shall be made and what liability, if any, shall be imposed on the carrier, warehousemen, underwriter or other persons unless express instructions in writing are timeously given by the CUSTOMER.
5.6 The COMPANY shall not be obliged to make any declaration for the purpose of any statute or convention or contract as to the nature of the GOODS or as to any special interest in delivery or otherwise unless expressly instructed by the CUSTOMER in writing. In particular, in the Republic of South Africa, the COMPANY shall be under no obligation unless written instructions to that effect are given to the COMPANY – to make any declaration or to seek any special protection or cover from South African Transport Services, or from any other carrier, in respect of any GOODS which are, or fall within the definition by that body of ‘dangerous goods’ or ‘goods liable to be stored in the open’.
5.7 The COMPANY as NVOC is not responsible or automatically required to apply for Itac Permits, Fisheries Management licenses and NRCS Import/export permits.
6.1 Except where the COMPANY is instructed to pack the GOODS the CUSTOMER warrants that all GOODS have been properly and sufficiently packed and/or prepared.
7.1 The COMPANY is not a CONTAINER owner, lessor, and operator and is consequently, not under any obligation to provide CONTAINERS.
7.2 The CUSTOMER warrants the suitability and safety of all CONTAINERS.
8.1 The CUSTOMER warrants that all GOODS have been properly and sufficiently marked.
8.2 The CUSTOMER shall indemnify the COMPANY against all losses, damages, expenses and fines arising from any inaccuracy or omission in that respect.
8.3 All GOODS which are not properly and sufficiently marked shall be handled by the COMPANY, its servants, agents and independent contractors entirely at the CUSTOMER’S risk.
9.1 The COMPANY shall at all times be entitled but not obliged to unpack any CARGO to inspect same and establish the nature and sufficiency of the packing. The cost of repacking the CARGO shall be borne by the CUSTOMER.
9.2 The COMPANY shall at all times be entitled but not obligated to inspect any CARGO and shall be further entitled to refuse to accept any CARGO whether packed or not which in its sole discretion appears in any way to be damaged or unsafe for handling, storage and carriage.
10. COLLECTION AND DELIVERY
10.1 The CUSTOMER shall, unless otherwise agreed, procure
10.1.1 that the GOODS are delivered onto and taken delivery of from the side or tailboard of the vehicle, and
10.1.2 that the GOODS are loaded onto and unloaded off the vehicle.
10.2 The CUSTOMER shall indemnify the COMPANY against all and any damages sustained by the latter arising out of the CUSTOMER loading GOODS onto and unloading GOODS off vehicles.
10.3 Nothing in paragraph 10.1 shall be construed as preventing the COMPANY from giving assistance in loading or unloading the GOODS onto or off the vehicle where such assistance is customary and practical, but assistance so given shall be without any liability on the part of the COMPANY.
10.4 Unless adequate warning signs are clearly visible, the CUSTOMER shall accept all responsibility for damage or loss of whatsoever nature within its or the Consignee’s premises to:
10.4.1 vehicles or loads, due to unsuitability of means of access to the loading or unloading points;
10.4.2 roadways, manholes and covers, mains, pipes, bridges, weighbridges or approaches, including anything of a like nature leading to the loading or unloading point, due to the weight or nature of the vehicle or its load.
10.5 Save for circumstances where the COMPANY has been contracted to deliver the GOODS, the CUSTOMER warrants the suitability and safety of every vehicle used to collect and/or deliver the GOODS.
11.1 Pending conveyance and delivery, GOODS may be warehoused or otherwise held at any place or places at the sole discretion of the COMPANY at the CUSTOMER’S risk and expense.
11.2 Every undertaking to convey GOODS is subject to the conditions that the COMPANY has available a suitable vehicle or vehicles at the appropriate time.
11.3 In the event of any emergency arising over which the COMPANY has in its opinion no reasonable control, the COMPANY reserves the right to cancel the agreement to convey and should any such emergency arise during transit the COMPANY shall have the rights to deliver to the nearest reasonable destination or to make use of any reasonable alternative route that is deemed appropriate by the COMPANY.
11.4 In the case of delivery to the nearest reasonable destination the COMPANY shall inform the CUSTOMER accordingly, and such delivery shall be deemed to be in compliance by the COMPANY with their obligations under the agreement to convey.
11.5 In the case of the COMPANY making use of any reasonable alternative route instead of the route agreed to by the COMPANY and the CUSTOMER and in so doing travelling additional distance, the COMPANY shall be entitled to reasonable payment in respect thereof.
11.6 In the absence of special instructions, it shall be in the entire discretion of the COMPANY to decide at what time to perform any or all of the various acts, which may be necessary for the completion of BUSINESS.
11.7 GOODS stored upon the COMPANY’S vehicles are so stored at the sole risk of the CUSTOMER.
12. TRANSIT OF ABNORMAL LOADS
12.1 Abnormal indivisible loads shall be carried if;
12.1.1 Permission is obtained from the Provincial Administration and local authorities concerned and in that regard the CUSTOMER shall give the COMPANY adequate notice to obtain abnormal permits (exemptions). The cost of such permits shall be for the CUSTOMER’s account.
12.1.2 The Road and Bridges Authorities approve a suitable and direct route and do not subsequently vary such route.
12.2 The CUSTOMER shall indemnify the COMPANY against all liability for the cost of repairing and damage which may be caused by the passage of the load over private property, unless such damage be directly attributed to the COMPANY’S negligence or actions.
12.3 Unless otherwise agreed, the CUSTOMER shall bear the cost of any traffic escorts required by the authorities and any charges for raising overhead wired, switching off power, removing obstacles along the route, or any other work which might be necessary for the passage of such loads.
12.4 Access to off-loading sites shall be prepared prior to the arrival of loads, to enable safe passage to off-loading points.
13. FRAGILE GOODS
13.1 Notwithstanding anything to the contrary herein contained, the COMPANY shall under no circumstances be liable for any damage or loss to any glass, glassware, mirrors, pottery, crockery, china, cast cement, plaster or asbestos finished or semi-finished products or GOODS or any other similar or allied GOODS of a fragile nature, unless a special declaration of such GOODS is made prior to acceptance thereof AND such GOODS can be and are specifically insured prior to acceptance of delivery at the request and expense of the CUSTOMER against all such damage or loss.
13.2 Such insurance will be subject to the usual exceptions and conditions of the policies of the insurance company for underwriters taking the risk. The COMPANY shall be entitled should they so wish to declare the said GOODS on any open or general insurance policy. Should the insurers dispute their liability for any reason, the CUSTOMER shall have recourse against the insurers only and the COMPANY shall not be under any responsibility or liability in relation thereto notwithstanding that the premiums upon the policy may not be at the same rate as that charged by the COMPANY or paid to the COMPANY by their CUSTOMER.
14. VALUABLE GOODS
14.1 The COMPANY shall not accept liability for the handling of any coins, precious stones, jewellery, valuables, antiques, pictures, bank notes, securities and other valuable documents or articles, livestock or plants unless special arrangements have previously been made in writing.
14.2 Should any CUSTOMER nevertheless deliver any such GOODS to the COMPANY or cause the COMPANY to handle or deal with any such GOODS otherwise than under special arrangements previously made in writing, the COMPANY, whether or not it is aware of the nature of the GOODS, shall bear no liability whatsoever, for or in connection with any loss of or damage to the GOODS.
15. DANGEROUS GOODS
15.1 Except under special arrangements previously made in writing the COMPANY will not accept or deal with any noxious, dangerous, hazardous or inflammable or explosive GOODS or any GOODS likely to cause damage. Any person delivering such GOODS to the COMPANY or causing the COMPANY to handle or deal with any such GOODS (except under special arrangements previously made in writing) shall be liable for all loss or damage caused thereby and shall be deemed to have indemnified the COMPANY against all penalties, claims, damages, costs and expenses arising in connection therewith and the GOODS may be destroyed or otherwise dealt with at the sole discretion of the COMPANY or any other person or entity in whose custody it may be at the relevant time.
15.2 If such GOODS are accepted under arrangements previously made in writing they may nevertheless be destroyed or otherwise dealt with if it becomes dangerous to people, other goods or property. The expression “GOODS” likely to cause damage “includes GOODS likely to harbour or encourage vermin or other pests” and all such GOODS that fall within the definition of “hazardous and dangerous GOODS” in the South African Transport Services Regulations.
16.1 All and any CUSTOMER vehicles, goods, items, assets and property of whatsoever nature which are left on or at the property / premises of the COMPANY are left entirely and exclusively at the risk of the owner / CUSTOMER thereof. The COMPANY does not provide insurance cover over and for such property / assets, and / or vehicles and shall not be held liable or responsible in any way whatsoever for any loss, damage or theft to or of such property / assets, and / or vehicles howsoever such loss, damage or theft may occur.
16.2 Should the CUSTOMER require insurance of any damage or loss to GOODS in transit and/or warehoused GOODS where the COMPANY’S liability for such damage is excluded by these standard conditions, the COMPANY will procure such insurance for the CUSTOMER on the CUSTOMER’S behalf and at the CUSTOMER’S expense, provided the request for such insurance is made and an insurance cover is issued and taken up by the CUSTOMER prior to the commencement of haulage and/or warehousing as the case may be.
17. COLLECTION OF PAYMENT BY COMPANY FOR CUSTOMER
17.1 Instructions to collect payment on delivery (C.O.D.) in cash or otherwise shall be accepted by the COMPANY upon the condition that the COMPANY in the matter of such collection will be liable for the exercise of reasonable diligence and care only.
18. SUB-CONTRACTING BY THE COMPANY
18.1 Any instructions or BUSINESS accepted by the COMPANY may in the absolute discretion of the COMPANY be fulfilled by the COMPANY itself, by its own servants performing part or all of the relevant services, or by the COMPANY employing or instructing or entrusting the goods to third parties on such conditions as may be stipulated by or negotiated with such third parties for the purposes of such services, or such part thereof as they may be employed to carry out.
19. CLAIMS AGAINST THE COMPANY BY THE CUSTOMER
19.1 The COMPANY shall be discharged from all liability:
19.1.1 for loss or non-delivery of any separate package forming part of a consignment of GOODS or for the loss from a package or an unpacked consignment of GOODS or for damage or mis-delivery, however caused, unless notice be received in writing within 3 (three) days after the end of the transit where the transit ends in the Republic of South Africa or within 14 (fourteen) days of the transit where the transit ends at any place outside the Republic of South Africa.
19.1.2 for loss or non-delivery of the whole of a consignment of GOODS, however caused, unless notice be received in writing within 7 (seven) days of the date when the whole consignment of GOODS should have been delivered if delivery was to be effected in South Africa and within 14 (fourteen) days of the date when the whole consignment of GOODS shall have been delivered if delivery was to be effected outside South Africa.
19.1.3 Unless summons is served on the COMPANY in respect of the claim concerned within 1 (one) year of the date of which the cause of action in respect thereof arose.
19.2 The COMPANY shall not be liable under any circumstances for any loss, damage or expense arising from or in any way connected with marks, weights, measurements, numbers, brands, contents, quality or description of the GOODS.
19.3 The COMPANY will not be bound by any receipt given in good faith to a CUSTOMER relating to a number of packages or the condition of the GOODS if it should subsequently be shown that such number or condition was wrongly described in the receipt.
19.4 The COMPANY shall not be liable for any loss suffered as a consequence of a fact or state of affairs not ascertained by it on it undertaking an inspection of the GOODS or simply inspecting the GOODS of its own volition.
19.5 The COMPANY shall have no liability or responsibility by virtue of the fact that there may be a change in the rates of duty, wharfage, freight, railage or cartage of any other tariff, before or after the performance by the COMPANY of any act involving a less favourable rate of tariff, or by virtue of the fact that a saving may have been effected in some other way had any act been performed at a different time. The COMPANY shall not be liable for demurrage charges however incurred unless such charges arose as a result of negligence on the part of the COMPANY.
19.6 The COMPANY will not be liable for any loss or damage unless the CUSTOMER shall establish that such loss or damage was caused by the gross negligence of the COMPANY or any person for whose acts or omissions the COMPANY is by law responsible.
19.6.1 Should the COMPANY be held liable, the loss to the CUSTOMER shall be ascertained by reference to the cost price to the CUSTOMER provided that the COMPANY shall have the option of replacing or repairing any article lost or damaged for which it might be liable. In the case of second-hand plant or machinery, compensation for loss or damage shall be limited to the valuation established by Assessors acting on behalf of the COMPANY.
19.6.2 The COMPANY shall not be liable for any consequential loss or damage to or delay in making delivery of any goods.
19.7 In the event of an unqualified acceptance of GOODS being signified by signature, no claim for loss and/or damage will thereafter be entertained by the COMPANY.
20. CLAIMS AGAINST THE COMPANY BY THIRD PARTIES
20.1 The COMPANY hereby authorises the CUSTOMER to contract on its behalf with third parties so as to limit the liability of the COMPANY to such parties.
20.2 To the extent that a CUSTOMER contracts with third parties to stipulate in favour of the COMPANY so as to limit the liability of the COMPANY to those third parties such stipulations are hereby accepted.
20.3 The CUSTOMER warrants that no claim shall be made against the COMPANY in connection with the GOODS or dealings with them by a third party, including the servants, agents and independent contractors of the COMPANY and shall indemnify the COMPANY for any loss suffered by the latter in respect of any such claims whatsoever and howsoever arising.
21. CLAIMS BY THE COMPANY AGAINST THE CUSTOMER AND THIRD PARTIES
21.1 Interest shall be charged on all outstanding amounts at the rate of 2% above the prime rate of interest charged to the company by its current bankers. A certificate by the Company’s accountant as to the principal amount outstanding and the interest thereon shall be sufficient evidence as to the amount outstanding in respect of any debt due to COMPANY.
22. CLAIMS AGAINST THE SERVANTS AND AGENTS OF THE COMPANY BY THE CUSTOMER
22.1 The CUSTOMER undertakes that no claim shall be made by it against any servant, agent or independent contractors of the COMPANY in connection with its dealings with the GOODS.
22.2 The undertaking is also hereby given by the CUSTOMER to each and every servant, agent or independent contractors of the COMPANY and is hereby accepted by the COMPANY acting on their behalf as their agent.
22.3 The COMPANY hereby stipulates in favour of each and every one of its servants, agents and independent contractors that the CUSTOMER shall have no right of action whatsoever against any such servant, agent and independent contractors in connection with its dealings with the GOODS, which stipulation is hereby accepted by the CUSTOMER and is open for acceptance by the said servants, agents and independent contractors for an indefinite period in time.
23. CLAIMS AGAINST THE SERVANTS AND AGENTS OF THE COMPANY BY THIRD PARTIES
23.1 The CUSTOMER warrants that no claim shall be made against any servant, agent or independent contractor of the COMPANY in connection with GOODS by any third party.
23.2 The CUSTOMER shall indemnify any servant, agent or independent contractor of the COMPANY for any loss suffered in that respect.
23.3 Indemnity is hereby given by the CUSTOMER for each and every servant, agent and independent contractor of the COMPANY and is hereby accepted by the COMPANY acting on their behalf as their agent.
24.1 Unless otherwise agreed between duly authorised representatives of the COMPANY and the CUSTOMER, respectively, the terms of payment to the COMPANY shall be cash on delivery or in the case of approved accounts, within 30 days of presentation of statements, as the case may be.
24.2 The COMPANY is entitled to retain and be paid all brokerages commissions, allowances and other remunerations customarily retained by or paid to shipping and forwarding agents and insurance brokers and shall not be obliged to disclose any account to its CUSTOMER’S or principals for any such remuneration received by or from third parties. A claim (or counter claim) against the COMPANY shall not be made a reason for referring or withholding payment.
25.1 All goods and documents relating to goods including bills of lading and import permits as well as refunds, repayments, claims and other recoveries, shall be subject to a special and general lien and pledge either for monies due in respect of such goods or for other monies due to the COMPANY by the CUSTOMER, sender, owner, consignee, importer or the holder of the bill of lading or their agents, if any amounts due to the CUSTOMER are not paid within 14 (fourteen) days after notice has been given to the person from whom the monies are due that such goods or documents are being detained they may at the option of the COMPANY be sold by auction, private treaty or otherwise, or in some other way disposed of for value at the sole discretion of the COMPANY and at the expense of such person and the nett proceeds applied in or toward the satisfaction of such indebtedness or part thereof. In order to give effect to such sale the company may open and examine any part of the consignment.
25.1.1 At the option of the COMPANY, the whole or any part of the consignment may be sold, either by public auction or by private treaty, and to apply the proceeds of any such sale, after deducting all the expenses thereof, in payment of or towards any sum due by the CUSTOMER to the COMPANY.
25.2 The COMPANY shall pay over the surplus (if any) of the proceeds of such sale, after application thereof in terms of 25.1.2 to the CUSTOMER, but shall otherwise be released from all liability whatsoever in respect of the consignment.
25.3 Where the COMPANY has, in accordance with the provisions of clause 25.1.2 sold part only of the consignment, and proceeds of such sale are sufficient to pay to the COMPANY the amount referred to in clause 25.1.1 the CUSTOMER shall be entitled to take delivery of the remainder of the consignment, provided that if any storage charges remain unpaid by the CUSTOMER or his agent, such shall be recoverable by the COMPANY in accordance with clause 25.1 above.
25.4 The CUSTOMER indemnifies the COMPANY against any claims which may be instituted against the COMPANY arising out of or as a result of any sale in terms hereof.
25.5 The COMPANY shall be entitled to sell or dispose of all non-perishable GOODS in any circumstances;
25.5.1 where a CUSTOMER cannot be identified; or
25.5.2 where the GOODS cannot be delivered because they are insufficiently addressed; or
25.5.3 where the GOODS have not been collected or accepted by the CUSTOMER or any other person.
25.5.4 Save that where the COMPANY has an address for the CUSTOMER then sale or disposal shall be effected only after the expiration of 21 (twenty one) days from the posting to that address of written notice to do so.
25.6 All charges and expenses arising in connection with the storage and sale or disposal of the GOODS shall be for the account of the CUSTOMER. A communication from any Agent or correspondent of the COMPANY or from any third party referred to in clause 25.5.2 to the effect that the GOODS cannot be delivered for any reason shall be conclusive evidence of that fact.
26. DELIVERIES TO THE COMPANY BY POST
26.1 Notwithstanding any prior dealings between the COMPANY and the CUSTOMER, all documents and other matter (including cash, cheques, bank drafts and other remittances) sent to the COMPANY through the post shall be deemed not to have been received by the COMPANY unless and until they are actually delivered to the COMPANY or placed in the COMPANY’S post office box, if so addressed.
27. CUSTOMS STORAGE WAREHOUSE (BONDED CARGO)
Where the CUSTOMER makes use of the COMPANY’S customs storage warehouse (for bonded cargo), the following shall apply:
27.1 The ‘CUSTOMER’ shall include the owner, consignee or consignor of the goods concerned as well as any agent acting for such persons in dealing with or associated with the goods.
27.2 The ‘goods’ shall mean any goods coming under the control of the COMPANY or its agents, employees, contractors, or subcontractors on the instructions of the CUSTOMER and shall include any container, transportable tank, pallet, package or other covering not supplied by or on behalf of the COMPANY.
27.3 In the event that the CUSTOMER is not the owner of the goods, then the CUSTOMER warrants that he is authorised to bind the owner to the conditions of contract, he shall provide the owner with a full copy of the contract and bring the contents of the contract to the attention of the owner, and accepts that to the extent that the owner may attempt to deny that he is bound by the contract or cannot be located, the CUSTOMER shall be liable to the COMPANY for all purposes relating to any agreement between the COMPANY and the CUSTOMER.
27.4 The COMPANY shall be duly authorised to act as an agent on behalf of the owner upon the owner’s default to provide timeous instructions for the removal of the goods from the customs warehouse, as governed by and in terms of Section 19(9) of the Customs and Excise Act. No 91 of 1964, which provides inter alia that the goods are required to be removed and cleared or re-exported within the specified period, currently two years. Application for the extension of this period for a maximum period of six months, can be brought upon good cause shown and must be submitted before the expiration of the initial two year period. The COMPANY shall be authorised to make such an extension application on behalf of the CUSTOMER in the event that the CUSTOMER fails to provide such instructions to the COMPANY.
27.5 The goods shall only be regarded as being in the actual custody of the COMPANY and under its control from the time the goods are received by the COMPANY at the customs warehouse to the time the goods are collected by a person with the necessary authority to do so. An acknowledgement of receipt of the goods by the COMPANY shall not constitute an acknowledgement or admission in regard to the state or condition or quantity of such goods, nor as to the correctness of any statement on any transport documentation.
27.6 The COMPANY may request security from the CUSTOMER in request of goods kept in its customs warehouse to cover any potential outstanding duties or VAT pertaining to such goods.
27.7 The CUSTOMER indemnifies the COMPANY and agrees to defend, and hold harmless the COMPANY in respect of all duties, fines, penalties, taxes, imposts, detention charges, levies, deposits, and outlays of whatsoever nature levied by or paid to an authority whatsoever.
28. CONDITIONS OF TRADE RELEVANT TO BROKERAGE / TRANSPORTATION
28.1 The CUSTOMER is required to specify load value and commodity as part of the load instruction prior the commencement of the work.
28.2 The broker and or sub-contractor are required to meet insurance requirements in terms of load value and inclusions and ensure that the load is adequately covered prior to undertaking the transportation of goods.
28.3 It is the responsibility of the sub-contractor to adequately secure the load with the relevant equipment such as chains, corner plates, tarpaulins and other equipment if required.
28.4 In the event of the possibility of a claim due to any circumstances the broker /sub-contractor should notify the relevant COMPANY staff member in order to comply with insurance rules and regulations.
28.4.1 A minimum of 0.0025% tolerance is allowed when bulk product is short delivered, in which case the entire shortage will be recovered from the sub-contractor (broker if applicable).
28.5 The COMPANY must be provided with proof of active GIT cover prior to the commencement of transportation.
28.6 It is the sub-contractors responsibility to ensure that the load weight and the weight distribution is within legal requirements.
28.7 Sub-contractors vehicles are to meet roadworthy legislation and it is the responsibility of the sub-contractor to ensure as such.
28.8 Sub-contractor vehicles are to be fitted with tracking devices and the drivers are to be issued with cell phones provided by the sub-contractor.
28.9 Accurate and regular updates as to the progress of goods in transit is a requirement, and delays are to be reported immediately to the COMPANY to the relevant staff member on duty.
28.10 Drivers PDP (Public Licences) are to meet current legislation.
29. CONDITIONS APPLICABLE TO FORWARDING AND CLEARING
29.1 The COMPANY makes no warranties and/or representations to the CUSTOMER save as may be specifically provided herein or as notified in writing by the COMPANY to the CUSTOMER from time to time. The CUSTOMER acknowledges that the COMPANY is not in any way bound by any oral statement, representation, guarantee, promise, undertaking, inducement or otherwise which may have been made at any time by any salesman, employee, representative or any person acting or purporting to act for or on behalf of the COMPANY, whether negligently or otherwise unless such statements, representations, guarantees, promises, undertakings, warranties or inducements are supplied or made in writing by an employee duly authorised by written resolution of the board of directors of the COMPANY in response to a written enquiry specifying accurately and in complete detail what information is required.
29.2 Any advice and/or information, in whatever form it may be given, is provided by the COMPANY for the CUSTOMER only. The CUSTOMER shall indemnify the COMPANY against all loss and damage suffered as a consequence of passing such advice or information to any third party.
29.3 The COMPANY deals with Goods only on the basis that it is neither a common carrier nor a public carrier.
29.4 The COMPANY shall be entitled to procure any or all of the services which may be required, as an agent, or, to provide those services as a principal.
29.5 When the COMPANY contracts as a principal for any services, it shall have full liberty to perform such services itself, or, to subcontract on any terms whatsoever, the whole or any part of such services.
29.6 When the COMPANY acts as an agent on behalf of the CUSTOMER, the COMPANY shall be entitled, and the CUSTOMER hereby expressly authorises the COMPANY, to enter into all and any contracts on behalf of the CUSTOMER as may be necessary or desirable to fulfil the CUSTOMERS’S instructions, and whether such contracts are subject to the trading conditions of the parties with whom such contracts are made, or otherwise. The CUSTOMER agrees that the COMPANY shall have no responsibility or liability to its CUSTOMER for any act or omission of such third party, even though the COMPANY may be responsible for the payment of such third party’s charges; but the COMPANY shall, if suitably indemnified against all costs, (including attorney and client costs) which may be incurred by or awarded against the COMPANY, take such action against the third party on the CUSTOMER’S behalf as the CUSTOMER may direct.
29.7 The COMPANY shall, on demand by the CUSTOMER, provide evidence of any contract entered into as the agent for the CUSTOMER. In so far as the COMPANY may be in default of the obligation to provide such evidence, it shall be deemed to have contracted with the CUSTOMER as a principal for the performance of the CUSTOMER’S instructions.
29.8 In all cases where there is a choice of tariff rates or premiums offered by any carrier, warehouseman, underwriter, or other person depending upon the declared value of the relevant goods or the extent of the liability assumed by the carrier, warehouseman, underwriter or other person, it shall be in the discretion of the COMPANY as to what declaration, if any, shall be made, and what liability, if any, shall be imposed on the carrier, warehouseman, underwriter or other person.
29.9 The COMPANY shall be entitled to issue in respect of the whole or part of any contract for the movement of goods, a transport document, including but not limited to a bill of lading (a combined transport, groupage, received for shipment or despatch bill of lading), a warehouse and/or forwarding receipt, an air or sea waybill, a consignment or delivery note, a container movement or transport order, in a form that shall be within the COMPANY’S discretion, provided that where a transport document is issued these trading terms and conditions shall continue to apply except insofar as they conflict with the terms and conditions applicable to the transport document. The issuance of a transport document by the COMPANY shall entitle it to raise an additional charge determined by the COMPANY, to cover its additional obligations arising under the transport document.
29.10 Pending forwarding and/or delivery by or on behalf of the COMPANY, goods may be warehoused or otherwise held at any place as determined by the COMPANY in its absolute discretion, at the CUSTOMER’S expense.
29.11 The COMPANY shall have an absolute discretion to determine the means, route and procedure to be followed in the performance of all or any service provided in the course of business undertaken subject to these conditions.
29.12 Unless specific written instructions are timeously given to and accepted by the COMPANY, the COMPANY shall not be obliged to make any declaration for the purpose of any statute, convention, or contract, as to the nature or value of any goods or as to any special interest in delivery. In particular, the COMPANY shall be under no obligation to make any declaration or to seek any special protection or cover from any carrier in respect of any goods which are, or fall within the definition ascribed thereto by that body of dangerous goods or other goods which require special conditions of handling or storage; arrange for any particular goods to be carried, stored or handled separately from other goods.
29.13 The COMPANY shall have no obligation to take any action in respect of any goods which may be recognisable as belonging to the CUSTOMER unless and until it receives suitable instructions relating to those goods together with all necessary documents.
29.14 If events or circumstances come to the attention of the COMPANY, its agents, servants, or sub-contractors which, in the opinion of the COMPANY, make it in whole or in part, impossible or impracticable for the COMPANY to comply with a CUSTOMER’S instructions the COMPANY shall take reasonable steps to inform such CUSTOMER of such events or circumstances and to seek further instructions. If such further instructions are not timeously received by the COMPANY in writing, the COMPANY shall, at its sole discretion, be entitled to detain, return, store, sell, abandon, or destroy all or part of the goods concerned at the risk and expense of the CUSTOMER.
29.15 Except under special arrangements previously made in writing, the COMPANY will not accept or deal with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock or plants. Should the CUSTOMER nevertheless deliver such goods to the COMPANY or cause the COMPANY to handle or deal with any such goods otherwise than under special arrangements previously made in writing the COMPANY shall incur no liability whatsoever in respect of such goods, and in particular, shall incur no liability in respect of its negligent acts or omissions in respect of such goods.
29.16 Except under special arrangements previously made in writing any instructions relating to the delivery or release of the goods in specified circumstances, such as but not limited to, against payment or surrender of a particular document, are accepted by the COMPANY, where the COMPANY has to engage third parties to effect compliance with the instructions, shall do so only as agents for the CUSTOMER.
29.17 Despite the acceptance by the COMPANY of instructions from the CUSTOMER to collect freight, duties, charges, dues, or other expenses from the consignee, or any other person, on receipt of evidence of proper demand by the COMPANY, and in the absence of evidence of payment, for whatever reason, by such consignee, or other person, the CUSTOMER shall remain responsible for such freight, duties, charges, dues, or other expenses.
29.18 The COMPANY will not effect any insurance in respect of the goods except upon the timeous express written instructions of the CUSTOMER in which event the COMPANY shall endeavour to procure such insurance acting always as agent only for and on behalf of the CUSTOMER. All insurances effected by the COMPANY are subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk. Unless otherwise agreed in writing, the COMPANY shall not be under any obligation to effect a separate insurance on the goods, but may declare it on any open or general policy held by the COMPANY from time to time.
29.19 Insofar as the COMPANY agrees to effect insurance, the COMPANY acts solely as agent for the CUSTOMER. Should any insurer dispute its liability in respect of any goods, the CUSTOMER concerned shall have recourse against such insurer only and the COMPANY shall have no responsibility or liability whatsoever in relation thereto notwithstanding that the premium paid on such policy may differ from the amount paid by the CUSTOMER to the COMPANY in respect thereof.
29.20 If delivery of any goods is not accepted by the CUSTOMER, consignee or party nominated by the CUSTOMER at the appropriate time and place then: –
126.96.36.199 the COMPANY shall be entitled to store the goods or any part thereof at no risk to the COMPANY and at the expense of the CUSTOMER.
29.21 Without limiting or affecting any other terms of these trading terms and conditions, goods, whether perishable or otherwise, in the care, custody or control of the COMPANY may at the CUSTOMER’S expense be sold or disposed of by the COMPANY without notice to the CUSTOMER, sender, owner or consignee, if –
188.8.131.52 such goods have begun to deteriorate or are likely to deteriorate;
184.108.40.206 such goods are insufficiently addressed or marked;
220.127.116.11 the CUSTOMER cannot be identified;
18.104.22.168 the goods have not been collected or accepted by the CUSTOMER or any other person after the expiration of 21 days from the COMPANY notifying the CUSTOMER in writing to collect or accept such goods, provided that if the COMPANY has no address for the CUSTOMER such notice period shall not be necessary, and payment or tender of the net proceeds, if any, of the sale thereof after deduction of those charges and expenses incurred by the COMPANY in respect thereof shall be equivalent to delivery of such goods.
29.22 Notwithstanding the provisions of clause 22.21 above, when the goods are liable to perish or deteriorate, the COMPANY’S rights to sell or dispose of or deal with the goods shall arise immediately upon any sum becoming due to the COMPANY, subject only to the COMPANY taking reasonable steps to bring to the CUSTOMER’S attention its intention to sell or dispose of the goods before doing so.
29.23 For all purposes hereunder the CUSTOMER shall be deemed to have in relation to the CUSTOMER’S business the goods, and the services to be rendered by the COMPANY in regard thereto, reasonable knowledge of all matters directly or indirectly relating thereto or arising therefrom including, without limitation, the terms of sale and purchase and all matters relating thereto, and the CUSTOMER undertakes to supply all pertinent information to the COMPANY.
29.24 The CUSTOMER warrants that –
it is either the owner or the authorised agent of the owner of any goods in respect of which the CUSTOMER instructs the COMPANY and that
it is accepting these conditions not only for itself, but also as agent for and on behalf of the owner.
29.25 In authorising the CUSTOMER to enter into any contract with the COMPANY and/or in accepting any document issued by the COMPANY in connection with such contract, the owner, sender or consignee is bound by these trading terms and conditions for itself/himself and its agents and for any parties on whose behalf it or its agents may act, and in particular, but without prejudice to the generality of the aforegoing, it accepts that the COMPANY shall have the right to enforce against them jointly and severally any liability of the CUSTOMER under these trading terms and conditions or to recover from them any sums to be paid by the CUSTOMER which upon proper demand has not been paid.
29.26 All information and instructions supplied or to be supplied by it to the COMPANY is and shall be accurate, true and comprehensive, and in particular, without derogating from the generality of the aforegoing, the CUSTOMER shall be deemed to be bound by and warrants the accuracy of all descriptions, values and other particulars furnished to the COMPANY for customs, consular and other purposes, and the CUSTOMER warrants that it will not withhold any necessary or pertinent information, and indemnifies the COMPANY against all claims, losses penalties, damages, expenses and fines whatsoever, whensoever and howsoever arising as a result of a breach of the aforegoing whether negligently or otherwise including, without derogating from the generality of the aforegoing, any assessment or reassessment.
29.27 All goods will be properly, adequately and appropriately prepared and packed, stowed, labelled and marked, having regard inter alia to the implementation by or on behalf of the COMPANY or at its instance of the contract involved, and the characteristics of the goods involved and that are capable of withstanding the normal hazards inherent in the implementation of such contract.
29.28 Where goods are carried in or on containers, trailers, flats, tilts, railway wagons, tanks, igloos or any other unit load devices specifically constructed for the carriage of goods by land, sea or air, (each such device hereinafter individually referred to as “the transport unit”) then save where the COMPANY has been given and has accepted specific written instructions to load the transport unit, the COMPANY will only carry the risk where –
29.28.1 that the transport unit has been properly and competently loaded; and
29.28.2 that the goods involved are suitable for carriage in or on the transport unit; and
29.28.3 that the transport unit is itself in a suitable condition to carry the goods loaded therein and complies with the requirements of all relevant transport authorities and carriers.
29.29 The CUSTOMER shall obtain in advance the COMPANY’S specific written consent to accept into its possession or control or into the possession or control of any of its servants, agents, employees or sub-contractors, any goods, including radio-active materials, which may be or become dangerous, inflammable or noxious, or which by their nature may injure, damage, taint or contaminate, or in any way whatsoever adversely affect any person, goods or property, including goods likely to harbour or attract vermin or other pests. The CUSTOMER warrants that such goods, or the case, crate, box, drum canister, tank, flat, pallet, package or other holder or covering of such goods will comply with any applicable laws, regulations or requirement of any authority or carrier and that the nature and characteristics of such goods and all other data required by such laws, regulations or requirements will be prominently and clearly marked on the outside cover of such goods.
If any such goods are delivered to the COMPANY, its servants, agents, employees or sub-contractors, whether or not in breach of the provisions of this clause, such goods may for good reason as the COMPANY in its discretion deems fit including, without limitation, the risk to other goods, property, life or health, be destroyed, disposed of, abandoned or rendered harmless or otherwise dealt with at the risk and expense of the CUSTOMER and without the COMPANY being liable for any compensation to the CUSTOMER or any other party, and without prejudice to the COMPANY’S rights to recover its charges and/or fees including the costs of such destruction, disposal, abandonment or rendering harmless or other dealing with the goods. The CUSTOMER indemnifies the COMPANY against all loss, liability or damage caused to the COMPANY as a result of the tender of such goods to the COMPANY and/or out of the aforegoing.
29.30 The CUSTOMER shall and keep the Company indemnified from and against all liability, loss, damage costs and expenses whatsoever, including without prejudice to the generality of the aforegoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relations to the goods, arising out of the COMPANY acting in;
29.31 accordance with the CUSTOMER’S instructions, or arising from any breach by the CUSTOMER of any warranty contained in these conditions, or from the negligence of the CUSTOMER, and
29.32 without derogation from sub-clause 29.31 above, any liability assumed, or incurred by the COMPANY when, by reason of carrying out the CUSTOMER’S instructions, the COMPANY has become liable to any other party, and
29.33 all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the COMPANY under the terms of these conditions, regardless of whether such claims, costs, and/or demands arise from, or in connection with, the breach of contract, negligence or breach of duty of the COMPANY its servants, sub-contractors or agents, and
29.34 any claims of a general average nature which may be made on the COMPANY by any third part.
29.35 The CUSTOMER undertakes that no claim shall be made against any director, servant or employee of the COMPANY which imposes or attempts to impose upon him any liability in connection with the rendering of any services, which are the subject of these trading terms and conditions, and hereby waives all and any such claims and/or rights entirely.
29.36 Where as a result of any act or omission by or on behalf or at the instance of the COMPANY and whether or not such act or omission was negligent, any duty, tax, levy, railage, wharfage, freight, cartage or any other impost or charge has been paid or levied in an incorrect amount, then any responsibility or liability to the CUSTOMER which the Company may otherwise have will cease and fall away if the CUSTOMER does not –
29.37 within a reasonable time having regard to all the circumstances, and in particular to the time allowed for the recovery from the payee of the amount overpaid, advise the COMPANY that an incorrect amount has been paid or levied, and
29.38 does all such acts as are necessary to enable the COMPANY to effect recovery of the amount incorrectly paid.
The fact that the CUSTOMER may not be aware that any such incorrect payment has been made shall not constitute a circumstance to be taken into account in calculating what is a reasonable time. Should any act or omission by the CUSTOMER, whether or not such act or omission was due to ignorance on the part of the CUSTOMER, and whether or not such ignorance was reasonable or justified in the circumstances, prejudice the COMPANY’S right of recovery, the CUSTOMER shall be deemed not to have complied with the provisions of clauses 29.35,6,7.
30. JURISDICTION AND APPLICABLE LAW
30.1 THE STANDARD TRADING CONDITIONS and any other terms and/or conditions agreed between the PARTIES and the determination of any other dispute between the PARTIES arising out of the alleged improper performance or non-performance thereof based on any cause of action whatsoever shall be subject to the exclusive jurisdiction of the High Court of South Africa, Cape Town High Court division to which jurisdiction the CUSTOMER consents to.
30.2 The CUSTOMER hereby consents to the jurisdiction of the Magistrate’s court having jurisdiction over it in terms of Section 25 of the magistrates Court act, No 32 of 1944 in respect of any proceedings arising out of the construction, validity and performance of the STANDARD TRADING CONDITIONS and any other terms and/or condition agreed between the PARTIES and the determination of any other dispute between the PARTIES arising out of the alleged improper performance or non-performance thereof based on any cause of action whatsoever even if the amount in issue would otherwise exceed the jurisdiction of such court.
30.3 This consent shall not, however, prejudice the COMPANY in respect of its right to proceed through any other court in the Republic of South Africa of competent jurisdiction.
30.4 This agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.