THE SOUTH AFRICAN FREIGHT AND LOGISTICS ASSOCIATION
STANDARD TRADING TERMS AND CONDITIONS
1. INTERPRETATION
In these STC’s:
1.1 the headings of clauses are for reference purposes only and shall not aid in the interpretation of the clauses to which they relate;
1.2 the following terms shall have the meanings assigned to them hereunder, namely:
1.2.1 Claim means any Claim made by any person, arising from any cause of action (including breach of contract, delict, strict or statutory liability) and for any amount including for loss, damages, fines, penalties, interest, forfeiture, shortages, and in the case of the Company, includes but is not limited delay in providing the Services or failing to provide the Services at all;
1.2.2 Company means ________________, registration number ______________, or its successors or assigns;
1.2.3 Customer means any person at whose request or on whose behalf the company undertakes any business or provides any advice, information or service;
1.2.4 Customs Act means the Customs and Excise Act no 91 of 1964; and Customs means the Customs and Excise Division of the South African Revenue Service;
1.2.5 Goods means any Goods in respect of which services are rendered, or are handled, transported or dealt with by or on behalf of or at the instance of the Company or which comes under the control of the Company or its agents, servants or nominees on the instructions of the Customer, and includes any container, transportable tank, flat pallet, package or any other form of covering, packaging, container or equipment used in connection with or in relation to such Goods;
1.2.6 Group means the Company and any company which is a holding company or subsidiary of the Company from time to time which may render services to the Customer;
1.2.7 Law includes the common law, legislative enactments, regulations, international conventions to which South Africa is a signatory, and the directions, directives, guidelines or policies of any government authority;
1.2.8 Owner means the owner of the Goods to which any business concluded under these trading terms and conditions relates and any other person who is or may have or acquire any interest, financial or otherwise, therein;
1.2.9 Party/ies means the Company and the Customer or either one of them as the context dictates;
1.2.10 Quotation means a written quotation, if any, provided by the Company to the Customer detailing the scope of the Services and the Fee;
1.2.11 Services means the freight forwarding and clearing services, and services relating to the handling, packing, unpacking, loading, palleting, sorting, warehousing, placing and transporting of Goods, to be performed by the Company to the Customer;
1.2.12 STC’s means these trading terms & conditions;
1.2.13 Taxes includes, without limitation, any duty, tax, levy, railage, wharfage, freight, cartage or any other import or charge levied by or payable to any authorities, intermediaries or other Parties;
1.2.14 Transport Unit means any container, trailer, flat, tilt, railway wagon, tank, igloo or any other unit load device specifically constructed for the cartage of Goods by land, sea or air.
2. APPOINTMENT AND APPLICATION OF STC’s
2.1 The Customer appoints the Company to provide it with the Services.
2.2 All and any business undertaken or advice, information or service provided by the Company, whether gratuitous or not, is undertaken or provided on these STC’s.
2.3 The Company deals with Goods only on the basis that it is neither a common carrier nor a public carrier
3. OWNER’S RISK
All handling, packing, loading, unloading, warehousing and transporting of goods by or on behalf of or at the request of the company are effected at the sole risk of the Customer and/or the Owner, and the Customer indemnifies the Company accordingly.
4. COMPANY’S OBLIGATIONS
4.1 Company must:
4.1.1 provide the Services to standards consistent with good industry practice;
4.1.2 comply with the Customer’s reasonable written requirements pertaining to the Goods;
4.1.3 comply with all applicable laws, including the Customs Act, the Occupational Health & Safety Act, Compensation for Occupational Injuries and Diseases Act, other employment and health and safety laws, road transport and traffic laws and environmental laws.
4.2 Unless expressly agreed otherwise in writing, time is not of the essence in providing the Services and the Company is not liable to the Customer if it fails to provide the Services by any deadline requested by the Customer.
5. CUSTOMER’S OBLIGATIONS AND WARRANTIES
5.1 The Customer must:
5.1.1 provide all documentation reasonably requested by Company to perform the Services;
5.1.2 provide Company with such instructions, guidelines and assistance as required by Company from time to time, as soon as reasonably possible;
5.1.3 ensure that any instructions to the Company are precise, clear and comprehensive and in writing and in particular, shall cover any valuation or determination issued by the Customs in respect of any Goods to be dealt with by or on behalf of or at the request of the Company;
5.1.4 comply with all applicable laws, including the Customs Act, all import or export related laws, the Occupational Health & Safety Act, Compensation for Occupational Injuries and Diseases Act, other employment and health and safety laws, road transport and traffic laws and environmental laws.
5.2 Instructions given by the Customer shall be recognised by the Company as valid only if given in writing and timeously given specifically in relation to a particular matter in question but in any event not later than 2 business days prior to the expectation time for implementation. Oral instructions, standing or general instructions or instructions given late, even if received by the Company without comment, shall not in any way be binding upon the Company, but the Company may act thereupon in the exercise of its absolute discretion.
5.3 The Customer warrants that:
5.3.1 it is either the Owner of, or the authorised agent of the Owner of, any Goods in respect of which the Customer instructs the Company and that each such person is bound by these STC’s;
5.3.2 the Owner, sender or consignee is bound by these STC’s for itself and it accepts that the Company may enforce any liability of the Customer against them jointly and severally or recover from them any sums to be paid in by this Customer which upon proper demand have not been paid;
5.3.3 all information and instructions supplied and to be supplied by it to the Company is and shall be accurate, true and comprehensive, comply with any legislative requirements and indemnifies the Company against all Claims, losses, penalties, damages, expenses and fines arising as a result of a breach of the foregoing;
5.3.4 all Goods will be properly, adequately prepared and packed, stowed, labelled and marked, and are capable of withstanding the normal hazards inherent in the implementation of this contract;
5.3.5 if any Goods require special storage, packaging or labelling by reason of its nature or properties or in accordance with any regulation, convention or statute, that all such requirements shall be complied with and that notice of any special storage requirements of any Goods shall be given timeously to the Company in writing, prior to the delivery of the Goods to the Company, provided that the Company shall not be obliged to take delivery of any such Goods in the event of it being of the view that such Goods or the handling and storage thereof are for any reason whatsoever undesirable;
5.3.6 where Goods are carried in or on Transport Units, that –
5.3.6.1 the Transport Unit has been properly and competently loaded; and
5.3.6.2 the Goods involved are suitable for carriage in or on the Transport Unit; and
5.3.6.3 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;
5.3.7 all details of any nature, including weights, quantities, numbering and identifying marks, contents, values and descriptive materials given to the Company by it are, and at all times shall be, accurate and the Customer indemnifies the Company against Claim caused by the Customer’s breach of this obligation.
6. FEE AND PAYMENT
6.1 The Fee for the Services is as set out in the Quotation, provided that:
6.1.1 the Fee is based on the degree of difficulty and risk estimated by Company and if, upon commencing the Services, it appears that these are greater than estimated, Company may increase the Fee and will not proceed with any more of the Services until it obtains the Customer’s written consent to the increased Fee, failing receipt of same within 5 Business Days, it will invoice the Customer for the Services performed to date;
6.1.2 if the Customer requests a deviation from the scope of the Services set out in the Quotation, the Fee will be adjusted accordingly as determined by Company and such deviation will only be implemented once both Parties have signed a Variation form specifying the amended Fee;
6.1.3 if the Services are to be performed outside of usual business times for any reason beyond Company’s reasonable control, additional hourly fees at the Company’s prevailing rate will be charged for each additional hour spent.
6.2 The Customer must pay the costs of all disbursements reasonably incurred by Company in providing the Services.
6.3 All quotations are subject to revision by the Company without notice having regard to changes in currency exchange rates and upward movements in amount payable by or on behalf of the Company to third parties including, without limitation, freight, surcharges, insurance premiums, equipment rental and labour which charges and upward movements take place after quotation. Any revision of rates as aforesaid will be commensurate with the change in the currency exchange rate or the increase in such amounts payable. Any such increase shall, failing agreement between the Parties, be determined by the then auditors of the Company, who in such determination shall act as experts and not as arbitrators and whose decision shall be final and binding on the Parties.
6.4 The Fee excludes VAT, which the Customer must pay to Company at the applicable rate. The Customer accepts receipt of electronic format tax invoices, credit and debit notes, which will be transmitted via email.
6.5 The Customer must pay Company the Fee, the VAT and all disbursements:
6.5.1 Unless agreed otherwise by the Parties in writing, within 30 days from date of Company’s invoice therefore;
6.5.2 without deduction or set-off of any kind;
6.5.3 by electronic funds transfer into the bank account set out in Company’s invoice.
6.6 If the Customer fails to pay any amount due to Company by the due date, Company may, without prejudice to any of its rights in terms of the STC’s or law, charge the Customer interest on such amount at the rate of 1% per month; and withhold provision of the Services for so long as the Customer fails to pay any such amount.
6.7 If the Company grants credit terms to the Customer in writing, by implication or by established conduct and practice, which allow the Customer a deferred period of time to effect payment of any amount due to the Company, and in the event of the Customer being in default of payment of any one or more of such payments due and payable, or being in default with any other terms or conditions on which credit was granted, then notwithstanding any other term to the contrary, wheresoever contained, the Company shall be entitled to forthwith revoke such credit facilities and Claim immediate payment of all amounts which would be due to the Company by the Customer, was it not for the credit facilities granted.
6.8 The Company shall under no circumstances be precluded from raising a debit and obtaining payment in respect of any fee or disbursements due to it notwithstanding the fact that a previous debit or debits, whether excluding or partly excluding the items subsequently requiring to be charged or recovered, had been raised whether or not any notice had been given that further debits were to follow.
7. TRANSPORT DOCUMENTS
The Company may if required issue in respect of the whole or part of any contract for the movement of Goods, a combined transport document or bill of lading (CTBL) in a form that shall be within the Company’s discretion, including a FIATA combined transport of bill of lading, a warehouse and/or forwarding receipt, an air sea waybill, a consignment or delivery note, a container movement or transport order, or house bill for lading or a received for shipment or dispatch bill of lading, (any of which may reflect the Company or another and the carrier in terms thereof) provided that where a CTBL is issued these STC’s shall continue to apply as between the Company on the one part and the Customer and/or the Owner on the other part, (save with regard to the Owner, to the extent that they conflict with the terms and conditions applicable to the CTBL shall have precedence). The issue of the CTBL by the Company shall entitle it to raise an additional charge determined by the Company, to cover any additional obligations arising under the CTBL.
8. COMPANY DISCRETION
8.1 In the absence of specific instructions given timeously in writing by the Customer to the Company, the Company shall have an absolute discretion to determine the mean, route and procedure to be followed by it in performing all or any of the acts or Services it has agreed to perform and may 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 make 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.
8.2 Despite anything to the contrary herein contained, if at any time the Company should consider it to be in the Customer’s interests or for the public good to depart from any of the Customers instructions, the Company shall be entitled to do so and shall not incur any liability in consequence of doing so, provided it gives the Customer notice of such actions taken, as soon as reasonably possible.
8.3 If circumstances come to the attention of the Company which, in its opinion, 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 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 obtain, return, store, sell, abandon, or destroy all or part of the Goods concerned at the risk and expense of the Customer.
8.4 Despite anything to the contrary herein, it shall at all times remain within the sole discretion of the Company whether or not to accept and/or perform an instruction from the Customer or to provide a Service to the Customer.
8.5 In all cases where 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 assigned 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.
9. INSURANCE
9.1 The Company is not obliged to obtain any form of insurance cover on behalf of the Customer in respect of the Goods and will only endeavour to do so at the express request of the Customer.
9.2 Where the Company agrees to do so, it shall endeavour to effect any insurance the Customer timeously and in writing instructs it to effect. Such insurance will be subject to such exceptions and conditions as may be imposed by the insurance company or underwriter taking the risk and the company shall not be obliged to obtain separate cover for any risks so excluded. Unless otherwise agreed in writing the Company shall not be under any obligation to obtain separate insurance in respect of separate consignments but may insure all or any of such consignments under any open or general policy held by the company from time to time.
9.3 Should any insurer dispute its liability in terms of any insurance policy in respect of any goods, the Customer concerned shall have recourse against such insurer only and the Company shall not have any 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.
9.4 Insofar as the Company agrees to arrange insurance the company acts solely as agent for and on behalf of the Customer and unless expressly stated otherwise is not a financial services provider.
10. COMPANY ENTITLED TO ACT AS AGENT OR PRINCIPAL IN CONTRACTING
10.1 Unless otherwise agreed in writing by the Company, the Company may act either as an agent for and on behalf of the Customer or as principal, as it in its discretion deems fit.
10.2 The Customer acknowledges that when the Company, as agent for and on behalf of the Customer, concludes any contract with a third party, such agreement is concluded between the Customer and the third party, provided it has obtained the Customer’s prior written consent.
10.3 Unless otherwise agreed in writing, the Company, when acting as agent for and on behalf of the Customer, shall be entitled to enter into any contract it reasonably deems necessary or requisite for the fulfilment of the Customer’s instructions, including, without limitations, contracts for the cartage of Goods by any route or means or person; storage, packing, transport, shipping, loading, unloading and/or handling of Goods by any person at any place whether on shore or afloat and for any length of time; carriage of, storage of Goods in break-bulk from or in or on Transport Units.
11. GOODS REQUIRING SPECIAL ARRANGEMENTS
11.1 Unless otherwise agreed in writing by the Company, the Company will not accept or deal with bullion, coin, precious stones, jewellery, valuables, antiques, human remains, livestock or plants. If the Customer delivers 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. A Claim, if any, against the Company in respect of the Goods referred to in this clause 11 shall be governed by the provisions of clause 24.
11.2 Unless otherwise agreed in writing by the Company, the Company will not accept or deal with materials which may be or become dangerous, radio-active, inflammable or noxious, or which by their nature may injure, damage, taint or contaminate, or in any way whatsoever adversely affect any person, or property, including Goods likely to harbour or attract vermin or other pests. The Customer warrants that such Goods, and the package and covering of such Goods will comply with any applicable laws, regulations or requirements 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 Goods. If any such Goods are delivered to the Company, whether with the Company’s consent or not, such Goods may, in the Company’s sole discretion, 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 right 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 howsoever arising or caused to the Company as a result of the tender of Goods to the Company.
12. ACCEPTANCE OF DELIVERY
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 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.
13. WAREHOUSING
13.1 In providing the Services, the Goods may be warehoused or otherwise held at any place as determined by the Company in its absolute discretion, at the Customer’s risk and expense.
13.2 The Company is not obliged to store the Goods in its bonded store unless the Customer has requested such storage, in writing at least 5 business days before Goods are presented for receipt at the Company’s premises and the Customer has agreed, in writing, to pay the Company’s Prices for storing the Goods in its bonded store.
13.3 Where the Company acts in the capacity as warehouseman, as a principal, whether in respect of premises owned, leased or operated by it, all Goods are received, stacked, stored, moved, dispatched and otherwise handled, at the risk of the Customer, except to the extent that any damage or loss to them is caused by the gross negligence or wilful misconduct of the Company or its employees. All such activities shall be undertaken by the Company in terms of and subject to these STC’s and the Company shall not be liable of common law or otherwise, as a result.
13.4 If the Company agrees to pack the Goods into any container or package the Goods for any purpose, such packing shall be undertaken at the sole risk and expense of the Customer and it shall be the obligation of the Customer to provide the Company with full packing and labelling instructions and warnings in writing.
13.5 Notwithstanding anything else to the contrary herein contained, the Customer indemnifies the Company against any consequences howsoever resulting from the storage of any Goods tendered for transport or warehousing, except to the extent that any damage or loss to the Goods is caused by the gross negligence or wilful misconduct of the Company or its employees. A failure to provide all relevant information to the Company shall render the Customer liable in damages to the Company.
14. COLLECTION OF EXPENSES AND COD
14.1 When Goods are accepted or dealt with by the Company upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the Customer shall remain responsible therefore if they are not paid by such consignee or any other person immediately when due.
14.2 If accepted by the Company, instructions to collect payment on delivery shall be subject to the condition that the Company will be entitled to assume that the recipient will effect payment and in the matter of such collection will not be liable for any negotiable instrument which is not met on the date of payment.
15. EXAMINATION OF LANDED GOODS
15.1 Where it is necessary for an examination to be held or other action to be taken by the Company in respect of any discrepancy in the Goods which are landed or discharged from any vessel, aircraft, vehicle, or Transport unit, no responsibility shall attach to the Company for any failure to hold such examination or to take any other action unless the Company has been timeously advised by the landing or discharging agent that such Goods have been landed and that such discrepancy exists.
15.2 The Company will not be responsible for examining or counting any Goods received by it where such Goods are bundled, palletised or packed in any other manner such that their number cannot be quickly and easily counted. Should the Company undertake to count Goods so received, it shall incur no liability in respect of any error or inaccuracy in such counting, unless such error or inaccuracy is the result of gross negligence or wilful misconduct of the Company. The Company shall be entitled to levy a charge on the Customer for the counting of Goods in such circumstances.
16. DUTIES, TAXES, IMPORTS, LEVIES AND DEPOSITS
16.1 The Customer, whether or not the cause of payment was due to an act, instruction or omission of the sender, owner and/or consignee and their agents, if any, shall be liable for any Taxes for or in connection with the Goods and whether at the time of entry and/or at any subsequent time, and for any payments, fines, penalties, expenses, loss or damage or whatsoever incurred by the Company in connection therewith and whether at the time of providing the Services or in the future.
16.2 The Company shall bear no liability for any additional Taxes being levied as a result of the Company selecting a particular route, time or course of action in performing the Services and the Customer waives any Claim it may have against the Company in this regard.
16.3 Where as a result of any or omission by the Company, any Taxes have been paid or levied in an incorrect amount, then any liability to the Customer which the Company may otherwise have, will cease if the Customer does not within a reasonable time, having regard to all the circumstances, advise the Company in writing that an incorrect amount has been paid or levied.
17. BENEFIT OF DISCOUNTS
The Company is entitled to the benefits of any discounts obtained and to retain and be paid all brokerages, commissions, allowances and other remunerations of whatsoever nature and kind and shall not be obliged to disclose or account to the customer, or principal for any such amounts received or receivable by it.
18. LIEN
All Goods and documents relating to Goods, as well as all refunds, repayments, Claims and other recoveries, shall be subject to a special and general lien and pledge either for moneys due in respect of the Services rendered or any other amounts due by the Customer to the Company.
If any amounts due by the Customer to the Company are not paid within 7 days after notice has been given, such Goods may be sold at auction or otherwise or in some other way disposed of for value at the sole discretion of the Company and at the expense of the Customer, and the nett proceeds applied towards satisfaction of the indebtedness.
19. CONFIDENTIALITY
19.1 Each Party undertakes, in favour of the other, to:
19.1.1 keep confidential all information, whether written or oral, concerning the business and affairs of each other whether obtained from that Party or any third party, including without limitation;
19.1.2 not disclose such information to any person other than its employees, agents and/or consultants involved in the implementation of the STC’s, without that Party’s prior written consent;
19.1.3 use such information solely in connection with the implementation of the STC’s and not for its own benefit or that of any third party; and
19.1.4 keep confidential these STC’s and the Quotation and all documents and reports provided by Company to the Customer.
19.2 The provisions of this clause do not apply to any information which is either independently developed by the recipient; publicly available without breach of the STC’s; or released for disclosure by the disclosing Party with its written consent.
20. SUB-CONTRACTING
20.1 Company may cede or assign any of its rights or obligations in terms of the STC’s or sub-contract any of its obligations in terms of the STC’s without requiring the consent of the Customer.
20.2 The Customer may not cede or assign any of its rights or obligations in terms of the STC’s without Company’s prior written consent.
21. FORCE MAJEURE
21.1 Neither Party is liable for any failure to meet any of its obligations in terms of the STC’s, or any delay in meeting them, to the extent to which the failure or delay is caused by force majeure.
21.2 Force Majeure means any exceptional event or circumstance which is beyond a Party’s reasonable control; which such Party could not reasonably have provided against before entering into the agreement; and which, having arisen, could not reasonably have been avoided or overcome by such Party. Examples include acts of terrorism; any riot, civil commotion, disorder; any labour dispute, strike or lock-out involving a Party’s employees; and natural catastrophes.
21.3 If a Force Majeure prevents or delays a Party from performing any of its obligations in terms of the STC’s:
21.3.1 that Party must give notice to the other Party immediately upon the occurrence of an event of Force Majeure and must resume performance of its obligations as soon as the Force Majeure has ceased;
21.3.2 each Party must take all reasonable and necessary steps at its own expense to mitigate the consequences of any Force Majeure which affects the performance of its own obligations;
21.3.3 that Party shall not be in breach of the STC’s unless its performance is prevented or delayed by the Force Majeure event for a period of 30 Days or more, in which event, the other Party may cancel the STC’s by written notice.
22. COMPLIANCE WITH LAW
22.1 If the Company is obliged, in performing the Services, to comply with any law of any nature whatsoever, then the Company by complying therewith, shall not be deemed to waive nor abandon any of its rights in terms of these STC’s.
22.2 In addition thereto, in complying with the law, the Company shall not be deemed to have assumed any onus, obligation, responsibility or liability in favour of the Customer.
22.3 If any of the terms of these STC’s repugnant to or in conflict with the law, then and in such event the conflicting term embodied herein shall be deemed to be amended and/or altered to conform therewith.
23. WAIVER, INDEMNITY AND LIMIT OF LIABILITY
23.1 The Company will not be, in any circumstances, liable to the Customer for any indirect, consequential or special damages, including without limitation, loss of profits, loss of product, loss of use, loss of revenue, arising from the provision of the Services.
23.2 Subject to the provisions above and clause 24, the Company is not liable for, and the Customer hereby waives its own Claims and indemnifies the Company against third party Claims, arising from or in connection with:
23.2.1 any haulier, carrier, warehouseman or other person whatsoever at any time involved with such goods arising out of any claim made directly or indirectly against any such person by the Customer or by any consignor, consignee or Owner of such goods or by any person having an interest in such goods or by any other person whatsoever; and/or
23.2.2 any Owner or consignee of such goods who is not the customer of the Company where the Company performs the service of a deconsolidation agent, or any other service; and/or
23.2.3 any carrier of the goods if the Company is the consignor or consignee of the goods; and/or
23.2.4 any applicable law, as a result of the Company acting on behalf of the customer; and/or
23.2.5 as a result of a breach of any warranty referred to herein.
23.2.6 the Customer’s express or implied instructions or their implementation by or on behalf of or at the instance of the Company in relation to any Goods;
23.2.7 any act or omission of the Customer or agent of the Customer with whom Company deals; and/or
23.2.8 any loss, damage or expense arising from or in any way connected with the marking, labelling, numbering, non-delivery or mis-delivery of any Goods; and/or
23.2.9 any loss, damage or expense arising from or in any way connected with the weight, measurements, contents, quality, inherent vice, defect of description of any Goods; and/or
23.2.10 any loss, damage or expense arising from or in any way connected with any circumstance, cause or event beyond the reasonable control of the Company, including but without limiting the generality of the aforesaid, strike, lock-out, stoppage of labour; and/or
23.2.11 loss or non-delivery of any separate package forming part of a consignment or for loss from a package or an unpacked consignment or for damage or mis-delivery; and/or
23.2.12 arising out of any cause whatsoever as a result of the Company’s execution or attempted execution of the Services;
Unless:
23.2.12.1 such Claim arises from the wilful intent and/or from a grossly negligent act, or omission on the part of the Company or its employees; and
23.2.12.2 such Claim arises at a time when the Goods in question are in the actual custody of the Company and under its actual control.
24. MONETARY LIMITATION OF LIABILITY OF THE COMPANY
24.1 In those cases where the Company is liable to the Customer in terms of 23.3, in no such case whatsoever shall any liability of the company, howsoever arising, exceed whichever is the least of the following respective amounts:
24.1.1 the value of the Goods evidenced by the relevant documentation or declared by the Customer for customs purposes on for any purpose connected with their transportation;
24.1.2 the value of the Goods declared for insurance purposes;
24.1.3 double the amount of the fees raised by the Company for the services in connection with the Services, but excluding any amounts payable to sub-contractors, agents and third parties.
25. TIME BAR
25.1 No Claim of any nature whatsoever and howsoever arising in respect of any loss or damage to goods, mis-delivery of Goods, delay in the delivery of any Goods, or in respect of any other damages, loss or cause of action, may be brought against the Company (subject in any event to the provisions of clauses 23 and 24) any of its Directors or Employees, unless it has received written notice of the Claim from the Customer specifying all details of the Claim, within 5 days from the end of any transit or of the cause of the Claim coming to the Customer’s knowledge, or the date when such cause should reasonably have come to their knowledge (whichever shall, as applicable, be the sooner) nor may any such Claim be brought after the expiry of the period of 9 months calculated from the date of the cause of the Claim coming to the Customer’s knowledge, or the date when such cause should reasonably have come to their knowledge, or the date of delivery of the Goods or, in the event that Goods have been delivered, the date upon which the Goods should have been delivered in the ordinary course of business (whichever shall, as applicable, be the sooner).
25.2 In addition to clause 25.1, it is recorded that the Company is indemnified from all Claims howsoever arising, unless summons or other process initializing legal proceedings is issued and served on the Company within 9 months after the cause of action in respect of any such alleged Claim arose and immediate notice is given in writing to the Company of such action having been brought.
26. BREACH
26.1 Without prejudice to any other rights it may have, the Company may cease providing the Services to the Customer, and demand immediate payment of all amounts due to it if the Customer:
26.1.1 commits any breach of its obligations under the STC’s and fails to remedy that breach within 7 (seven) days of it being given written notice to do so;
26.1.2 commits any act of insolvency in terms of any applicable insolvency legislation;
26.1.3 deemed to be unable to pay its debts in terms of any deeming provision of any applicable legislation;
26.1.4 compromises or attempts to compromise with its creditors;
26.1.5 has any provisional or final order is granted for its sequestration, winding up, bankruptcy or judicial management, or any equivalent order is made in terms of any applicable law;
26.1.6 fails to satisfy any default or other judgment granted against it, within 10 (ten) days after the granting thereof; or
26.1.7 undergoes a change of its financial position or business.
27. DISPUTE
27.1 Should there be any dispute of any nature whatsoever between the Parties in regard to any aspect, matter or thing relating to these STC’s then such dispute shall be referred to two senior managers if each of the Parties for resolution by negotiation. Failure of such negotiation shall entitle either Party to take any other appropriate steps.
27.2 Should there be any dispute of any nature whatsoever between the Parties in regard to any aspect, matter or thing relating to these STC’s and whether or not the company has executed its obligations in terms of any agreement it has with the customer, then and in such event the customer shall nevertheless be obliged to perform its obligations in terms of any such agreement as though the company had performed properly and to the customer’s satisfaction.
27.3 The Customer’s remedy, having performed its obligations as provided in clause 27.1, shall be limited to an action against the Company for repayment of either the whole or portion of the amount which the Customer alleges, constitutes an overpayment.
27.4 Without affecting the generality of clauses 27.1 and 27.2 the Customer may not withhold payment of any amounts, by reason of any dispute with the Company.
27.5 In any dispute, the Company shall be deemed to have performed its obligations in a proper and workmanlike manner and strictly in accordance with this agreement, until such time as the Customer proves the contrary.
28. GENERAL PROVISIONS
28.1 No variation of these STC’s shall be binding on the Parties unless embodied in a written document signed by duly authorised signatories of the Parties. Any purported variation or alteration of these STC’s otherwise than as set out above shall be of no force and effect, whether such purported variation or alteration is written or oral, or takes place before or after receipt of these STC’s by the Customer.
28.2 No extension of time or waiver or relaxation of any of the STC’s shall operate as an estoppel against any Party in respect of its rights under these STC’s, nor shall it operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with these STC’s. Any waiver will be effective in a specific instance and for the purpose given only.
28.3 The Customer acknowledges that the Company is not in any way bound by any oral statement, representation, or otherwise which may have been made at any time by any of its employees or agents unless such representations, are included in these STC’s.
28.4 These STC’s and all agreements entered into between the Company and the Customer pursuant thereto are governed by and construed in accordance with the laws of the Republic of South Africa.
28.5 Unless the Parties agree to refer any dispute to mediation and/or arbitration, either Party may institute any proceedings against the other Party arising out of this contract in any Magistrates Court having jurisdiction over that other Party even if the cause of action in question exceeds the jurisdiction of that court provided that this condition shall not preclude a Party from instituting any proceedings against the other Party in any competent division of the High Court of South Africa.
28.6 If any one or more of the provisions of this Agreement should be held to be invalid, illegal or unenforceable by any competent authority, the validity and enforceability of all the other provision of this Agreement shall not be affected thereby. Without detracting from the generality of the aforegoing, the Parties agree to negotiate with each other in good faith to arrive at an amendment to this Agreement which would restore the Parties, as far as possible to the position contemplated by the Parties at the time this Agreement was entered into and which is legal and enforceable.
29. NOTICES
All notices in terms of these STC’s shall be given in writing and delivered by hand or sent by email to the appointed addresses. The Customer appoints as its domicilium citandi et executandi for all purposes under these STC’s as the physical address and email address stipulated under its signature. Any written notice or communication which has actually been received by a Party shall be regarded as sufficient notice even if it has not been sent in the manner or to the address/email provided.
30. CERTIFICATE OF BALANCE
The Customer hereby agrees that a Certificate signed by any director of the Company, or by its duly authorised representative, showing the amount owing by the Customer to the Company at that point in time, shall be prima facie proof of such amount.
