Standard Trading Conditions
PART A : DEFINITIONS, SCOPE AND CAPACITY
In these Trading Terms and Conditions: -
The headings to the Clauses are for reference purposes only and shall not aid in the interpretation of the Clauses to which they relate;
Unless the context clearly indicates a contrary intention, words importing any one gender include the other two genders, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporated) and vice versa;
1.1 “the Company” means Cosren Shipping Agency (Pty) Ltd, or any of its holding, subsidiary, associated or affiliate companies, their successors in title and assigns, who act as agents for and on behalf of “Cosco Container Lines Co Ltd” (“COSCON”); “Cosco Shipping Co Ltd” (“COSCOL”) and Cosco Bulk Shipping (Group) Co Ltd (“COSCO Bulk”);
1.2 “the Carrier” means COSCON, COSCOL or COSCO Bulk, as the case may be;
1.3 “the Customer” means the consignee, shipper, “Owner”, “Merchant” or holder as defined in the “Sea Transport Document”, or any ship owner, shipping line, firm, company, close corporation, partnership or any other legal entity, their successors in title and assigns, and/ or any agent of the aforesaid, at whose request, instruction or on whose behalf the Company undertakes any business or provides any advice, information and/ or services to, including any persons who instruct the Company to perform services, accepts the Company’s quotation and who contracts with the Company either directly or through the services of an agent;
1.4 “the Customers Shipping instruction” means all information which the Customer furnishes to the Company in order to enable the Company to adequately prepare bills of lading or any other Sea Transport Document, and any other documents or information with which the Company may be furnished with in respect of the shipment of the Customer’s Goods;
1.5 “Goods” means any goods handled, moved, transported, stored or otherwise dealt with by or on behalf of, or at the instance or instruction of the Company, or which may come under the control of the Company’s agents, servants or sub-contractors on the instruction of the Customer or the Customer’s Principal, and includes any flat pallet, container, transportable tank, package and/ or any other form of covering, packaging, container or equipment or transport device used in connection with or in relation to such Goods;
1.6 “Merchant” includes the shipper, consignee, receiver of the Goods and the holder of the “Sea Transport Document”, the notify party on the “Sea Transport Document”, and any person owing or entitled to the possession of the Goods pursuant to the “Sea Transport Document”, including anyone acting on behalf or under the instructions of such persons;
1.7 “the Owner” means the owner of the “Goods” in relation to any business which is concluded under these “Trading Terms and Conditions and any other person who has or may have acquired any interest therein, whether financial or otherwise;
1.8 “Sea Transport Document” means any bill of lading, and includes any through bill of lading, combined transport bill of lading, sea waybill or any other consignment note, combined transport document or other similar document relating to the carriage of goods either wholly or partly by sea, irrespective of whether it is transferable or negotiable, which is issued by or on behalf of “COSCON”, “COSCOL” or “COSCO Bulk” (together “the Carrier”) and incorporates the aforementioned terms and conditions of carriage;
1.9 “the Services” includes but is not limited to, any services rendered by the Company, whether gratuitously or not, including services as a liner agent, port agent, charterer’s agent, cargo broking agent, transport or forwarding agent, including all services in respect of any Vessel, the provision of all information to or on behalf of Principals and Customers, the solicitation of cargo, canvassing of cargo, issuing of freight quotations, forwarding of Goods, landside services including loading, unloading, stowage, discharge, transport, distributing, warehousing and storage of Goods and any other operations and services performed or to be performed by the Company or any other person for or on behalf of the Customer and any advice given in respect thereof;
1.10 “State Authority” includes, but it not necessarily limited to, the South African Revenue Services, the South African Police, the South African Border Police and Customs Officers, or any other authorised South African Government authority having jurisdiction over a container, as the circumstances allow;
1.11 “Tariff” means the most recent published tariff of applicable charges at any given time in respect of any service provided by “the Company” to “the Customer” relating to the “Goods”. Copies of the “Tariff” are available from the Company on request;
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1 All, and any business undertaken or advice, information or services provided by the Company, whether gratuitous or not, is undertaken or provided subject to (1) the Sea Transport Document, including the Carrier’s terms and conditions contained on the back of the Sea Transport Document, (2) these Trading Terms and Conditions, read together with the applicable (3) Arrival Notification and/ or (4) Booking Confirmation;
2.2 Where (1) the Sea Transport Document, including the Carrier’s terms and conditions contained on the back of the Sea Transport Document and (2) these Trading Terms and Conditions apply, and their provisions are in conflict with one another or differ, the Carrier’s terms and conditions contained on the back of the Sea Transport Document, as the case may be, will prevail;
2.3 Where the provisions of (1) these Trading Terms and Conditions and (2) an Arrival Notification and/ or Booking Confirmation both apply, these Trading Terms and Conditions will prevail;
2.4 These Trading Terms and Conditions shall prevail over those of any Customer or other party with whom the Company contracts, even if any applicable terms and conditions belonging to the aforesaid contain a clause similar in meaning and intention to the ones contained in these Trading Terms and Conditions.
3. APPLICABLE LEGISLATION
3.1 If any of the terms contained in these Trading Terms and Conditions is repugnant to or in conflict with the any common law, legislative enactment, regulation, notice or permit of any nature whatsoever (the “Law”) , then in such event the conflicting term embodied herein shall be deemed to be amended and/or altered to conform to that Law, and such amendment and/or alteration shall not in any way affect the validity and enforcement of the remaining provisions of these Trading Terms and Conditions;
3.2 If the Company is obliged, in the execution of any of its duties, obligations and/or responsibilities to comply with any Law, then the Company by complying therewith, shall not be deemed to waive nor abandon any of its rights in terms of these Trading Terms and Conditions;
3.3 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.
4. THE COMPANY’S CAPACITY, SUBCONTRACTING AND THIRD PARTIES
4.1 Any services performed by the Company in terms of the Sea Transport Document are performed by the Company in its capacity as agent for and on behalf of the Carrier. Any stipulations relating to any benefits or limitations of liability contained herein, are accepted by the Company;
4.2 Any services which are requested by the Company to be provided and which are not expressly provided for in the Sea Transport Document, are provided for by the Company to the Customer as the Carrier’s agents only.
4.3 The Customer acknowledges further that any business entrusted by the Customer to the Company, may in the absolute discretion of the Company, be fulfilled by the Company itself, its own servants performing part or all of the relevant services, or by the Company employing or entrusting the Goods or services to third parties on such conditions as may be stipulated by, or negotiated with, such third parties in any contract or agreement for the purposes of such services, or such part thereof as they may be employed to carry out;
4.4 Where the Company employs third parties to perform all or part of any of the functions which it has agreed to perform for and on behalf of the Customer, the Customer agrees that the Company shall have no responsibility or liability to the Customer for any negligence, act or omission of such third party, even though the Company’s servants or agents supervise the third party’s performance of its obligations and even where the Company may be responsible for the payment of such third party charges; but the Company may, if suitably indemnified against all costs (including attorney and own 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;
4.5 Notwithstanding the clauses above and unless otherwise agreed to in writing, the Customer acknowledges that the Company shall carry out the services of procuring the carriage, storage, packing or handling of Goods, as either a principal or as agent for and on behalf of the Customer, as it in its absolute discretion deems fit.
4.6 The offer and acceptance of a fixed price for the performance of any Services shall not itself determine whether such Services are to be arranged by the Company acting as agent for and on behalf of the Customer or as a principal;
4.7 Notwithstanding anything to the contrary contained herein, the Customer agrees that all Goods shall be dealt with by the Company on the terms and conditions, whether or not inconsistent with these trading terms and conditions, stipulated by the carriers, warehousemen, government departments, and all other parties (whether acting as agents or subcontractors to the Company or not) into whose possession or custody the Goods may pass, or subject to whose authority they may at any time be.
PART B: TRANSPORT DOCUMENTS, INFORMATION AND INSTRUCTIONS
5. SEA TRANSPORT DOCUMENTS
5.1 All goods shipped under a Sea Transport Document are subject to the terms and conditions contained on the revere side of the Sea Transport Document.
5.2 All Sea Transport Documents prepared by the Company in respect of the Customer’s Goods will be based solely on the information contained in the Customer’s Shipping Instructions as provided by the Customer to the Company. The Company will not be liable for any errors, discrepancies or omissions contained on the Sea Transport Document.
5.3 The Company will issue the Sea Transport Document as soon as reasonably possible after the vessel’s departure.
6. CUSTOMERS INSTRUCTIONS
6.1 Instructions given to the Company must be in writing and must be precise, clear and comprehensive and in particular, but without limitation, must 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;
6.2 All instructions, correspondence and other documents provided to the Company by the Customer shall be in English, or if in another language, then it must be accompanied by a translation into English;
6.3 Instructions given to the Company by the Customer will be recognised as valid only if timeously given, specifically in relation to the particular matter in question and if in compliance with 6.2 above;
6.4 Oral instructions, standing instructions, general instructions or late instructions, even if received by the company without comment, shall not in any way be nding on the Company, but the Company may act thereon in the exercise of its absolute discretion;
6.5 Without prejudice to any other provisions contained in these trading terms and conditions, neither the Company nor COSCON shall be liable for any inaccurate or incorrect information or instruction, whether material or otherwise, nor will they be liable for any claim which may arise from or relate to such incorrect or inaccurate information or instruction, which is provided by the Customer to the Company;
6.6 To the extent that any inaccurate or incorrect information or instruction provided to the Company by the Customer directly or indirectly results in loss or damage to the Company and/ or the Carrier, whether physical or financial, the Customer agrees to fully indemnify the Company and the Carrier against such loss or damage pursuant to clause 24 hereof.
7. DISCRETION OF THE COMPANY IN THE ABSENCE OF INSTRUCTIONS
7.1 In the absence of specific instructions given timeously in writing by the Customer to the Company:
7.1.1 It will be in the reasonable discretion of the Company to decide at what time to perform or to procure the performance of any or all of the acts which may be necessary or requisite for the discharge of its obligations to the Customer;
7.1.2 The Company will have an absolute discretion to determine the means, route and procedure to be followed by it in performing all or any part of the acts or services it has agreed to perform.
8. COMPANY’S OBLIGATIONS IN THE ABSENCE OF INSTRUCTIONS
8.1 Unless specific written instructions are timeously given to, and accepted by the Company, in respect of any issue whatsoever relating to the Goods, in particular but without limiting the generality thereof, to Dangerous Goods and the pecuniary value of any Goods, the Company will not be obliged to:
8.1.1 make any declaration for the purpose of any statute, convention or contract, as to the nature or value of such Goods or as to any special interest in delivery. In particular, the Company will 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;
8.1.2 arrange for any particular Goods to be carried, stored or handled separately from other Goods.
8.2 In the absence of instructions contemplated in clause 8.1 above, the Customer agrees to fully indemnify the Company and the Carrier pursuant to clause 24 hereof.
9. GENERAL DISCRETION
9.1 If events or circumstances come to the attention of the Company, its agents, servants or sub-contractors which, in the opinion of the Company in its sole discretion, make it wholly or partially impossible or impractical for the Company to comply with instructions previously given, the Company will take reasonable steps to inform the party which gave the instructions 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.
9.2 Notwithstanding anything to the contrary contained herein, 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 Customer's instructions, the Company shall be entitled to do so and shall not incur any liability in consequence of doing so.
10. TALLYING AND EXAMINATION OF GOODS AND SEALS
10.1 The Company is not obliged to count, inspect or examine any Goods in relation to any service which it renders to the Customer, but should the Company undertake to do so for any such goods so received, it shall incur no liability for any error or inaccuracy in such counting, whether such error or inaccuracy is the result of negligence on the part of the Company or any subcontractor or third party instructed by the Company.
The Company is entitled to levy a charge on the Customer for the counting of Goods in such circumstances.
10.2 All Goods will be deemed to have been received in good order and condition unless the Customer, within 15 consecutive calendar days of receipt of such goods, notifies the Company in writing to the contrary;
10.3 The Customer shall be responsible for ensuring that the seal(s) on any container:
10.3.1 Remains unbroken and intact until the point of delivery in the terminal; and
10.3.2 is consistently identified in any booking form and shipping instruction or other document submitted to the Company
10.4 Upon delivery of the Container, if the Customer alleges interference with the shipping container seals, the Customer shall bear the onus of proof of such interference and the Customer shall immediately notify the Company upon delivery. The Company shall have the right to nominate a representative to be present when the shipping container is opened and in such circumstances the Customer shall under no circumstances open the Container without the Company’s nominated representative being present;
10.5 Neither the Company nor the Carrier will be liable for any loss or damage of Goods in circumstances where a seal has been interfered with at any time prior to delivery of a Container to the terminal;
10.6 The Company will implement a shipping seal amendment charge in accordance with its Tarrif for each shipping container seal in circumstances where the seal number declared by the Customer to the Company or on NAVIS is different from the number of the seal on any container shipped or for shipment, and/ or the Shipping Instruction;
10.7 Without prejudice to any other provisions in the Trading Terms and Conditions, the Company or the Carrier will not be liable for any theft or pilferage of Goods from the Container whatsoever if the Company fails to comply with any of the procedures set out in this clause.
11.1 the customer acknowledges that:
11.1.1 Transnet Port Terminals (“TPT”) use a computerised data system called NAVIS for the control and tracking of the handling of containers at all South African Container Terminals (“the Terminals”);
11.1.2 NAVIS requires detailed advice (“pre-advice”) from shippers setting out export information (“export data”) in relation to export containers to be shipped through the Terminals;
11.1.3 TPT requires all pre-advice to be submitted by users of NAVIS who have been jointly authorised thereto by the shipping lines/ carriers or their agents;
11.1.4 Containers are not permitted into any Terminal without the pre-advice being populated on NAVIS;
11.1.5 The Company, on behalf of the carrier, authorises the Customer or its nominee to access and populate NAVIS with relevant export data in respect of each container, subject to the Customer providing the Company with a suitable indemnity against losses arising from NAVIS being populated with incorrect export data;
11.1.6 the Company has signed a proxy form with TPT and it can instruct TPT to provide it with a username and password (“access details”) for NAVIS to third parties;
11.1.7 Where the Customer has been provided access to NAVIS, the Company will not be responsible for providing any pre-advice export data to TPT or for populating NAVIS therewith and the Customer shall take sole responsibility for populating NAVIS with pre-advice export data for all containers;
11.1.8 The Customer fully indemnifies the Company and holds it completely harmless in terms of this clause, against any claims brought and/ or penalties or fines levied against the Company and/ or the Carrier, and/ or for any other losses whatsoever, arising out of or in any way related to incorrect pre-advice export data with which NAVIS may be populated by or on behalf of the Customer’s nominees.
PART C: IMPORT AND EXPORT CONTAINERS
12. IMPORT CONTAINERS
12.1 Unless otherwise agreed to in writing, the Customer must return all empty import containers in a good, clean, undamaged and odour free condition to the depot nominated by the Company and in accordance with either the Company’s Tariff or the Carrier’s Tariff, whichever is applicable. The Customer will be liable for any damage to and/ or loss or abuse to the Import and Export Containers whilst under the Customer’s custody and/ or control, or that of the Customer’s agents, principals or subcontractors.
12.2 Import Containers must be returned by the Customer to the depot nominated by the Company in a clean, undamaged and odour free condition, with all labels affixed to the Import Container, removal of any IMCO seals/ labels, and with the Customer’s Goods having been removed. The Customer will be liable to repair, clean or deodorise the Container where necessary at the discretion of the Company, and will be carried out by the Customer according to the IICL Standards (Institute of International Container Lessors) and to the Company’s satisfaction, and at the Customer’s expense. The Company will be entitled to carry the work out at the expense of the Customer, should the Customer fail to do so and where the Company or Carrier pays for any such repair, cleaning or deodorising costs, such costs shall be refunded to the Company by the Customer on demand;
12.3 The Customer must obtain written authorisation and approval from the Company if it seeks to return any empty container to an alternative depot or destination for redelivery not nominated by the Company. The Company retains its sole and unfettered discretion in deciding whether or not to grant such authorisation or approval, and before any redelivery can take place such written authorisation or approval must be sought from the Company. Payment of the applicable “drop off” charge, as amended from time to time, must be made by the Customer. The Company’s written proof of authorisation or approval must be tendered by the Customer when redelivering the Containers at the agreed alternative destination;
13. REEFER CONTAINERS
13.1 Where Reefer Containers are uplifted from the Container Terminal/Depot, into the Customer's care, the transporter and/ or the Customer must ensure that any variation of the set temperature by more than 2 (two) degrees is reported to the Container Terminal operator/Depot Operator where the Reefer Container is being stored as well as to COSCON and the Company, prior to taking delivery of the Reefer Container.
13.2 Upon receipt of such notification, the Company shall take such steps as are necessary for the Reefer Container to be repaired as soon as reasonably possible.
13.3 In the event that the Reefer Container is removed from the Container Terminal/Container Depot without the above being followed, then the Customer shall be deemed to have accepted the Reefer Container into its care without any exceptions and in good order, in which event the Customer shall indemnify COSCON and the Company against any loss/damages to the Goods of whatsoever nature in terms of these Terms and Conditions.
13.4 Notwithstanding the above, the Company may despatch a reefer technician in order to repair the Reefer Container within a radius of not more than 50 kilometres from the Container Terminal. During this time the Company shall remain indemnified by the Customer against any loss or damage to the Goods, whilst the Reefer Container is being attended to. In the event of a Reefer Container being in a place exceeding a radius of 50 kilometres from the Container Terminal or Container Depot from which it originated, then at the discretion of the Company a reefer technician may attend to the repair of the Reefer Container, provided that the Customer has indemnified the Carrier and the Company against any loss or damage to any Goods whilst the Reefer Container is in the Customers custody, possession and/ or care.
13.5 All call-outs and repair costs are for the Customer's account. As soon as the Customer becomes aware of any temperature discrepancy it should also take all necessary steps as a matter of urgency to have the Goods unpacked as quickly as possible in order to avoid possible damage to Goods.
14. EXPORT CONTAINERS
14.1 The Customer is responsible for:
(1) collecting Export Containers required to transport the Goods;
(2) packing the Goods into those containers;
(3) carrying out all export requirements relating to those Goods and/or Export Containers; and
(4) sealing and delivering the Export Containers to the relevant terminal stack at the port of export;
14.2 The Customer shall timeously redeliver to the depot nominated by the Company, any Export Container collected, unless the container is utilised for export packing, but subject to clause 14.3, and in accordance with the time periods and stipulations prescribed either in the Company's Tariff or Carrier’s Tariff, whichever is applicable, as amended from time to time, a copy of which is available upon request.
14.3 The Company reserves the right to release the Export Containers to the Customer at any time prior to the opening of stacks. The Customer undertakes to ensure that all Goods for export are delivered to the stack at the port of loading timeously and accompanied by all necessary documentation and information required for the Company to provide the services.
15. RETURN OF ALL CONTAINERS
15.1 Should the Customer fail to comply with the provisions of clauses 12, 13 and 14 above and/or not return any empty container in the condition in which it was received ("proper condition"), it will be liable for any terminal and storage charges as well as damages, costs or penalties relating to demurrage and detention, at the rate prescribed in the Company's Tariff, as amended from time to time, including costs and repairs required to restore the container to its proper condition.
15.2 Notwithstanding that all containers are to be returned in a clean, undamaged and odour free condition, the Export Containers (whether or not yet packed) and Import Containers shall be redelivered within the timeframe agreed between the Company and the Customer, but not more than 6 (six) weeks after collection, failing which the Customer shall be liable for:
(1) the replacement value of the container; or
(2) any costs, penalties or damages relating to demurrage or detention until the container is returned, with the Company bearing no obligation to mitigate its loss until such time as it has been compensated for the loss of the container.
15.3 No container may be removed from the Republic of South Africa by the Customer without the express prior written consent of the Company. Consideration of a Customer's request to take a container over the South African border will only be made upon completion and signature of the Company's prescribed guarantee and indemnity form. Approval from the Company remains within the Company's sole and unfettered discretion and shall only be secured upon payment of a prescribed deposit, to cover any loss / damage or demurrage that may be incurred. This deposit shall be refundable on condition that containers are returned in the same condition in which it was delivered, in a clean, undamaged and odour free condition, within the timeframe agreed and to the depot specified by the Company.
16. STOP, DETENTION OR SEIZURE
16.1 Where the Company is instructed by the Customer or a State Authority to move the Goods to a Customs warehouse or any other premises as a result of Goods that are stopped, detained or seized by a State Authority ("seizure") at a port of discharge or loading, such instructions will be carried out by the Company in its capacity as agent for and on behalf of the Customer and at the sole risk and expense of the Customer.
16.2 The Customer shall be liable for any costs, damages and penalties relating to demurrage, detention, storage, destruction of the Goods, transport, loading and unloading, packing and unpacking, administration and labour as a result of the seizer of such Goods.
16.3 Should the State Authority require Goods that have been Custom Cleared to be removed from a Customs licensed depot as allocated by the Company to another place of storage for inspection ("the inspection depot") then:
(1) the Customer shall be responsible for the payment of any storage or other costs which may become payable to the inspection depot;
(2) the Company's responsibility to the Customer in relation to the Goods, shall cease upon receipt of the order by the said State Authority and the subsequent removal of the Goods to the inspection depot;
(3) the Company shall in no way be liable for payment of any transport or storage costs thereafter, unless the container was carried subject to Carrier Haulage, in which event the Company shall arrange for the transport of the container to the inspection depot at the Customer's expense and naming the Customer as principal both with regard to responsibility for transport costs and the costs of the inspection depot;
16.4 Should the State Authority require Goods that have not been Custom Cleared to be removed from any place to another inspection depot, then:
(1) the Company shall arrange for the transport of such Goods strictly on Carrier Haulage terms to the inspection depot, which must be a Customs licensed depot nominated by the Company, on the basis that the costs of such removal will be refundable to the Company from the Customer on demand.
17. RELEASE OF GOODS
17.1 After it becomes apparent to the Company that the import Cargo is unclaimed, the Customer must ensure that it:
(1) furnishes the Company with the necessary information and clearance documents timeously;
(2) pays all amounts, costs and penalties due in respect of the Goods;
(3) collects its Goods from the port of discharge or inland terminal before the deadline on the last day of free storage granted by the port of discharge or inland terminal or other deadlines; failing which, the Company may move the Goods into a Customs licensed depot at the sole risk and expense of the Customer. The Company records that, by law, it is required to remove the Goods from any terminal to a Customs licensed depot within 72 (seventy two) hours of the arrival of Goods in that terminal.
17.2 The deadlines referred to above are as follows at the date of publication hereof:
(1) Port of Durban: 10h30 on the last business day of free storage granted by the port of discharge;
(2) Port of Cape Town: 12h00 on the last business day of free storage granted by the port of discharge;
(3) Johannesburg terminal: 11h00 on the first business day of the container being available for Collection.
17.3 If the Customer fails to collect its Goods within 28 (twenty eight) days from, and including, the date when they are discharged from the vessel, or any other shorter period after which the Goods may be disposed of after the failure of the Customer or its agent to duly enter the Goods as prescribed by the laws of South Africa including the Customs and Excise Act No. 91 of 1964 and any directives from the South African Revenue Service, the Company may:
(1) continue to store the Goods, at the Customer's sole risk and expense; or
(2) at the Customer's sole risk and expense, the Company or State Authority may move the Customer's Good to a State's Warehouse, Virtual State Warehouse or Customs Licensed Depot and store them there; or
(3) consider the Customer's Goods to be abandoned goods and deal with them in accordance with clause 17 hereof.
17.4 As a matter of law, the Goods will be removed to a States Warehouse, alternatively a Virtual States Warehouse (“the removal") if the Goods have not been cleared or fail to meet the conditions for importation or exportation within 28 (twenty eight) calendar days of their arrival in the Republic or within 28 days of the date of a Customs examination or service of a stop note.
17.5 Notwithstanding the removal of the Goods:
(1) Customs may not be held liable for any charge relating to the stoppage of the Goods or their removal to a States Warehouse or Virtual States Warehouse;
(2) The Customer shall remain liable to the Company and/or the Carrier for all storage, demurrage and detention costs incurred in respect of the Goods immediately prior to the removal;
(3) To the extent that the Goods continue to attract storage, demurrage and/or detention costs after the removal, the Customer shall remain liable therefore to the Company and/or the Carrier;
(4) In the event that any State Authority or the Company sells the Goods following the removal, the Customer shall remain liable for any shortfall between the proceeds of the sale as are paid to the Company and the amounts actually due and still owing to the Company and/or the Carreir.
17.6 The Company will only release the Customer's Goods to the Customer when it receives in respect of those Goods:
(1) the original Sea Transport Document; and
(2) the Customs processed bill of entry; and
(3) proof of payment of all cargo dues and services rendered; and
(4) any other documentation required by law or which the Company notifies the Customer that it requires.
17.7 Unless otherwise agreed to in writing, all invoices issued by the Company to the Customer are due and payable upon presentation.
18 ABANDONED GOODS
18.1 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 may accept that the Customer has abandoned the Goods.
18.2 The Company may store any abandoned goods or any part thereof, at the Customer's sole risk and expense.
18.3 The Customer consents to the Company selling, or abandoning to Customs (and in that event, recovering from the Customer all related costs), all or any of, the abandoned goods and recovering all amounts which the Customer owes to the Company for the Services in accordance with the provisions of clause 21.2, if:
(1) the Customer fails to timeously pay any amounts which it owes to the Company for the Services provided in respect of the Abandoned Goods; or
(2) the Customer fails to collect or accept delivery of the Abandoned Goods at the place designated by the Company within 14 (fourteen) days from, and including, the date when the Goods are discharged from the vessel, or any other shorter period after which the Goods may be disposed of after the failure of the Customer, its agent or principal to duly enter the Goods as prescribed by the laws of South Africa including, but not limited to the Customs and Excise Act No. 91 of 1964 and any directives from the South African Revenue Service.
19 FOREIGN COUNTRY AUTHORISATION
19.1 The Customer acknowledges that prior authorisation must be obtained from the relevant authorities in certain countries prior to the shipment of Goods. In the event that the Customer intends to ship Goods to any such Country, it must ensure that it duly furnishes the Company with all necessary documentation in order to enable the Company to ship the Goods.
19.2 If the Customer fails to provide the Company with any such documentation or authority timeously, alternatively, if the relevant Customs Authority refuses to grant authorisation in respect of the Customer's Goods, the Company shall not be obliged to ship such Goods onto the vessel. Furthermore, the Customer will be liable for all costs, damages (direct and indirect), expenses, penalties and disbursements resulting therefrom.
20 GOODS REQUIRING SPECIAL ARRANGEMENTS
20.1 Unless special arrangements and consent are provided by the Company in writing, the following Goods will not be dealt with or accepted by the Company and the Carrier:
(1) bullion, coins, banknotes, securities or other currency;
(2) precious stones, diamonds, jewellery, valuables, antiques, pictures, human remains, livestock or plants.
Should the Customer nevertheless deliver such Goods otherwise than under special arrangements previously made in writing, the Company, its agents, subcontractors and the Carrier, 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.
21 PROHIBITED GOODS
21.1 The Customer shall under no circumstances present any Goods to the Company which are considered to be Prohibited Goods by the Company, which include certain high value and dangerous Goods. A list of such Prohibited Goods is available from the Company and may be amended from time to time. The Customer will be liable for all costs, expenses, damages, penalties and disbursements resulting from its failure to comply with the said list of Prohibited Goods.
22 HAZARDOUS OR DANGEROUS GOODS
22.1 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, subcontractors or employees, any Goods or radioactive materials, which are or may become dangerous, inflammable, noxious, or which by their nature may injure, damage, endanger, taint, contaminate, imperil the ship, or adversely affect any other person, Goods or property, including Goods likely to harbour or attract vermin or other pests, including all such Goods that fall within the definition of "dangerous or hazardous goods" in the International Maritime Dangerous Goods Code, as amended from time to time.
22.2 The Customer warrants that such Goods, or the case, crate, box, drum canister, tank, flat-rack, 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 and information required by such laws, and regulations will be prominently and clearly marked on the outside cover of such Goods.
22.3 If any such Goods are delivered to the Company, whether or not in breach of the provisions of clause 21.1 and 21.2 above, and such Goods pose a risk or danger to other Goods, property, life or health or any person, the Company may in its discretion, destroy, dispose of, abandon or render harmless such Goods, at the risk and expense of the Customer and without the Company being liable for any compensation to the Customer or any other party. Without prejudice to the Company's rights to recover its costs, charges and/or fees in doing so, 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.
23 PERISHABLE AND UNCOLLECTED GOODS
23.1 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, shipper, Owner or consignee, if –
(1) such Goods have begun to deteriorate or are likely to deteriorate;
(2) such Goods are insufficiently addressed or marked;
(3) the Customer cannot be identified; or
(4) the Goods have not been collected or accepted by the Customer or any other person after the expiration of 28 (twenty eight) calendar days from the Company, after notifying the Customer in writing to collect or accept such Goods. 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.
23.2 Should any amount owing by the Customer to the Company become due and payable and remain unpaid, the Company shall be entitled and the Customer hereby authorises the Company and without first obtaining an order of court, to sell all or any of the Goods by public auction or on reasonable notice not exceeding 14 (fourteen) days by private treaty.
23.3 The net proceeds of any such sale, after deducting therefrom all costs, charges and expenses incurred by the Company, shall be applied in reduction or discharge as the case may be, of the Customer's obligations to the Company in respect of such Goods without prejudice to the Company's rights to recover from the Customer any balance which may remain owing to the Company after the exercise of such rights. Should the total amount collected by the Company, after deducting therefrom all costs, charges and expenses incurred by the Company in respect thereof, exceed the full amount of the Customer's obligations to the Company in respect of such Goods, the Company shall be obliged to refund such excess to the Customer.
PART D: WARRANTIES. INDEMNITIES AND LIABILITY
24 WARRANTIES BY THE CUSTOMER
24.1 The Customer warrants that:
(1) It is either the Owner of the Goods or the authorised agent of the Owner of any Goods in respect of which the Customer instructs the Company;
(2) It has read and understood the contents of this document and is duly authorised to agree to these Trading Terms and Conditions on behalf of any person or company that it represents and bind them to the terms thereof;
(3) All information and instructions provided to the Company or any other party in respect of the Goods, including weights, marks, measurements, numbers, brands, contents, quality, quantity, descriptions, dangerous Goods classifications (if any) will be provided timeously and is/ are accurate, correct, comprehensive, not misleading and no pertinent information has been withheld;
(4) That the Goods concerned are suitable for the type and mode of carriage contemplated in or on the transport device concerned, are or will be securely lashed, and the transport device is in a proper condition to carry the Goods safely and complies with the requirements of all relevant transport authorities and Carriers;
(5) The Goods are accompanied by all necessary completed documents, save to the extent that the Company has undertaken to prepare or procure this, failing which the Company shall be entitled to withhold shipping or delivery until these documents have been provided;
(6) The Customer warrants that its annual turnover exceeds the thresholds contained in the National Credit Act 34 of 2005, as amended from to time to time, and accepts that the provisions of this Act do not apply to any services rendered by the Company;
(7) The Customer warrants that it has the requisite international Maritime Dangerous Goods Code (IMDG) certification to handle hazardous or dangerous Goods where applicable.
25 GENERAL INDEMNITIES BY THE CUSTOMER
25.1 Without prejudice to any of the Company’s rights and securities under these Trading Terms and Conditions, the Customer indemnifies and holds harmless the Company against all claims, liability, loss, damage, costs (including all legal costs on an attorney and own client scale incurred by the Company in defending itself against any claim or pursuit of a recovery action) and expenses incurred or suffered directly or indirectly by the Company, including pure economic loss and whether arising in contract or delict, either directly or indirectly from any:
(1) breach of any warranty or failure to abide by any procedures contained in these Trading Terms and Conditions;
(2) express or implied instructions from the Customer to the Company, and the implementation thereof by or on behalf of or at the instance of the Company;
(3) negligent acts or omissions in relation to any Goods;
(4) claim or liability incurred to any haulier, carrier, warehouseman, shipowner, charterer or other person or third party, at any time involved with such Goods, 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;
(5) inaccurate, false or misleading information pertaining to the Goods;
(6) dangerous Goods shipped in any equipment provided by the Carrier.
25.2 Without limiting the generality of the above clauses, the Customer's indemnity shall:
(1) not be limited by amount;
(2) include any claims by Transnet Port Terminals, the South African Revenue Services, or any other customs, excise or revenue collection service, for any amounts, including but not limited to VAT, duties, or penalties, which the Company may be liable to pay in respect of the Goods, arsing out of any cause whatsoever, including without limitation the failure or inability of the Customer, the Owner of the Goods, named importer or exporter, to acquit any Goods carried in bond or use of incorrect tariff headings
25.3 Notwithstanding that the Company may seek recovery of any amount due to it, from any person other than the Customer, the Customer shall remain liable to make payment of the said amount to the Company upon demand, at any stage.
26 DIRECTORS AND EMPLOYEES
26.1 The Customer undertakes that no claims shall be made against any director, servant or employee of the Company, in their respective personal capacities, 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, or any act or omission arising during the course and scope of their employment, and hereby waives all and any such claims.
27 GENERAL AVERAGE
27.1 The Customer indemnifies the Company and holds it harmless in respect of any claims arising under General Average against the Company, and the Customer undertakes to provide such security, documents and information timeously, as and when the Company, the Carrier or Average Adjusters, as the case may be, requests it to do so, in order for the speedy release of Goods which may be the subject of a General Average claim.
28 FORCE MAJEURE
28.1 The Company shall not under any circumstances be liable for a claim for any loss, damage or liability arising out of or caused directly or indirectly by or contributed by one or more of the following:
(2) A nuclear incident;
(3) Any cause or event which the Company could not avoid, prevent or foresee by the exercise of reasonable diligence;
(4) War (whether war be declared or not), hostilities, military or usurped power, acts of a foreign enemy or power, civil war, revolution, rebellion, insurrection, civil strife, riots, civil commotion, terrorist act (or act by any person acting from political motives);
(5) Piracy, capture, seizure, arrest, restraint or detainment or consequences arising therefrom;
(6) Confiscation, expropriation, nationalisation, requisition, destruction or damage caused by the order of any Government, public or local authority
(7) Mines, torpedoes, bombs, weapons of explosion or of war whether derelict or not;
(8) Strikes, lockouts, labour disturbances, labour disputes, stoppages, riots or civil commotions.
(9) Natural catastrophes such as earthquakes, hurricanes, floods, droughts or fire.
29 LIMITATION OF LIABILITY
29.1 All handling, packing, loading, unloading, warehousing and transporting of Goods by or on behalf of or at the request of the Company are affected at the sole risk of the Customer. The Customer indemnifies the Company accordingly, even if any resultant loss or damage was caused by breach of contract or negligence of the Company, its servants or agents or any other party for whose conduct the Company would otherwise in law be responsible.
29.2 Subject to the provisions of the remainder of this clause, the Company shall not be liable for any claim of whatsoever nature (whether in contract or in delict) and whether for damages or otherwise, howsoever arising including, but without limiting the generality of the aforesaid:
(1) any negligent or criminal act or omission of the Customer or any person acting on behalf of the Customer other than the Company, its servants, agents or sub-contractors; and/or
(2) any act or omission of the Customer or agent of the Customer with whom the Company deals; and/or
(3) 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
(4) any loss, damage or expense arising from or in any way connected with the weight, measurements, contents, quality, inherent vice, defect or description of any Goods; and/or
(5) 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 or restraint of labour; and/or
(6) any loss, damage or expense arising from inherent vice of the Goods, or the lack or insufficiency of or defective condition of packing in the case of Goods which, by their nature, are liable to wastage or to be damaged when not packed or when not properly packed; and/ or
(7) damages arising from loss of market or attributable to delay in forwarding or in transit or failure to carry out any instructions given to the Company; and/or
(8) 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
(9) damage or injury suffered by the Customer or any person whatsoever arising out of any cause whatsoever as a result of the Company’s execution or attempted execution of its obligations to the Customer and/or the Customer's requirements, instructions or mandate;
29.3 If, in spite of the exclusion of liability in these Trading Terms and Conditions, the Company is found to be liable, its liability shall not exceed whichever is the least of the following respective amounts:
(1) The value of the Goods evidenced by the relevant documentation or declared by the Customer for Customs purposes or for any purpose connected with their transportation, including the value of the Goods declared for insurance purposes;
(2) Double the amount of fees raised by the Company for its services in connection with the Goods, but excluding any amount payable to sub-contractors, agents and third parties;
(3) ZAR 10,000.00 for any one occurrence.
30 TIME BAR AND NOTICE
30.1 No claim of any nature whatsoever and howsoever arising in respect of the Services, any loss or damage to Goods, mis-delivery or non-delivery of Goods, delay in the delivery of any Goods or in respect of any other damages, loss or cause of action whatsoever (whether or not similar to, or in the nature of, the aforegoing),
may be brought against the Company or (subject in any event to the provisions of Clause 25 above) any of its Directors or Employees, unless the Customer;
(1) has given written notice of the claim to the Company, before or at the time of removal the Goods into the custody of the person entitled to take possession, or if the damage or loss is not apparent, then within 15 (fifteen) consecutive working days of delivery at the place or port of destination; and
(2) has provided the Company with a fully documented claim setting out the precise nature and quantum of the claim within 3 (three) months of the written notification required above.
30.2 In the absence of any written notification of damage or loss to the Company, the Goods shall be deemed prima facie to have been delivered in good order and condition.
30.3 Notwithstanding the above, the Company shall in any event be discharged from all liability whatsoever and howsoever arising in respect of, any Services provided to the Customer or which the Company has undertaken to provide, or damage to or loss of Goods, unless summons or other process initiating legal proceedings is issued and served on the Company within 12 (twelve) months after the cause of action in respect of any such alleged liability arose and immediate notice is given in writing to the Company of such suit having been brought.
30.4 The Carrier or the Company may, on written request to the Company and in its sole discretion, extend any period contemplated above, or any extension thereof, provided that such request must be made prior to the expiry of such period and will only be regarded as duly extended by the Company such extension is granted in writing.
31.1 The Customer is obliged to obtain its own insurance cover in respect of the Goods and the Company will, under no circumstances, be obliged to procure any insurance cover for and on behalf of the Customer
PART E: PAYMENT AND FINANCE
32.1 For purposes of this clause, any reference to sums of money due to the Company shall include, but not be limited to sums of money invoiced by the Company, but due to the Carrier as principal of the Company.
32.2 Unless otherwise specifically agreed by the Company in writing, the Customer shall pay to the Company in cash immediately upon presentation of an invoice, all sums due to the Company without deduction or set-off and payments shall not be withheld or deferred on account of any claim or counterclaim which the Customer may allege.
32.3 Containers and/or cargo shall not be released to the Customer unless payment of all amounts invoiced and due to the Company are paid in full and in terms of the requirements set out in these Trading Terms and Conditions.
32.4 Should any amount not be paid by the Customer on due date then the whole amount in respect of all services rendered by the Company to the Customer and monies disbursed by the Company on behalf of the Customer (whether or not related to the transaction in relation to which the Customer has defaulted), shall become immediately due, owing and payable and the Customer shall be liable to pay interest thereon, calculated daily and compounded monthly, in respect of all such amounts at a rate of 5 percentage points above the prime overdraft lending rate from time to time quoted by the Company's Bankers, from due date until date of payment.
32.5 Unless otherwise agreed to in writing, payments must comply with the following requirements:
32.5.1 Cheques for payments over R40 000 must be bank guaranteed;
32.5.2 If payment is made by electronic transfer, payment must reflect in the Company's bank account, as nominated by the Company, on due date, noting that three working days must be allowed for payments to clear and to be processed by the Company. Any changes in the Company’s banking details will immediately be notified in writing to the Customer;
32.5.3 All landside costs may only be paid in South African rands.
32.5.4 All cash payments shall be subject to a 1 % handling fee of the value of the cash payment.
32.5.5 The Customer consents to and agrees that the Company's Tariff or Carrier’s Tariff is subject to variation from time to time without prior notice, subject to clause 36 below.
32.5.6 In the event of the Customer breaching any of its obligations and/or failing to timeously make payment of any amount to the Company, the Customer agrees to pay, and shall be liable to pay, all legal costs on the attorney/own client basis including collection charges and tracing agent's fee incurred by the Company in recovering any such amount from the Customer.
32.5.7 The Company may in its sole discretion appropriate any payments made by the Customer to any principal debt owed by the Customer to the Company, irrespective of when it arose, or to interest only, or to legal or other costs, or to any such combination of principal, interest and costs as it may in its sole discretion determine, irrespective of any purported allocation or appropriation being made by the Customer at the time of payment or at any other time.
32.5.8 A certificate signed by any Accountant or Financial Officer of the Company stating the indebtedness of the Customer to the Company or certifying that specific services were rendered and/or monies disbursed and/or Goods delivered, shall be prima facie evidence of the Customer's indebtedness to the Company or of the rendering of such services, disbursement of such monies or delivery of such Goods.
32.5.9 The Company reserves the right to withdraw any credit facilities granted to the Customer, at any time without prior notice and the nature and extent of such facilities shall at all times be at the Company's sole discretion.
33 DEAD FREIGHT
33.1 The Customer shall be liable for the full cost of any services provided and/or disbursements, expenses, damages, fines or penalties incurred by the Company in respect of any dead freight as a result of:
(1) a booking cancelled by the Customer; or
(2) a booking cancelled by the Customer or Goods which are loaded on board a vessel, irrespective of whether the vessel sails or if the Goods are, or have to be, transhipped.
34 DUTIES, TAXES, IMPOSTS, LEVIES AND DEPOSITS
34.1 The Customer shall be liable for any duties, taxes, imposts, levies, deposits or outlays of whatsoever nature levied by or payable to the authorities, intermediaries or other parties at any port or place for or in connection with the Goods, and whether at the time of entry and/or at any subsequent time, for any payments, fines, damages (direct or indirect), penalties, expenses, or loss incurred or sustained by the Company in connection therewith.
34.2 The Company shall bear no liability for any increase in the rate of duty, cargo dues, freight, railage or cartage or any other tariff, before or after the performance by the Company of any act involving a less favourable rate or tariff, or by virtue of the fact that a saving might have been effected had any act been performed at a different time.
35 CHARGES INCORRECTLY PAID
35.1 Where as a result of any act or omission by or on behalf of or at the instance of the Company, and whether or not such act or omission was negligent, any duty, tax, levy, railage, cargo dues , freight, cartage or any other 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:
(1) Within 6 (six) months of making such a payment, advise the Company that an incorrect amount has been paid or levied; and
(2) Do all such acts as are necessary to enable the Company to effect recovery of the amounts incorrectly paid.
35.2 The fact that the Customer may not be aware that any such incorrect payment has been made shall not affect the time period stipulated above. 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 hereof.
36 LIEN AND PLEDGE
36.1 All Goods and documents relating to Goods, including Sea Transport Documents and import permits as well as all 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 from the Customer, sender, Owner, consignee, importer or the holder of the Sea Transport Document or their agents, if any.
36.2 If any monies due to the Company are not paid within 7 (seven) days in respect of non-perishable goods or 3 (three) days in respect of perishable goods after notice has been given to the person from whom the monies are due that such Goods or documents are being detained, they may be sold by auction 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 net proceeds applied in or towards the satisfaction of such indebtedness.
37 QUOTATIONS AND TARIFFS
37.1 The Tariff for landside costs is set by the Company on the 1sl day of April each year and is not subject to negotiation with Customers.
37.2 The Company shall be entitled at any time by notice to the Customer to cancel or resile from any quotation or executory agreement in circumstances where it becomes either impracticable or uneconomical for the Company to carry out the contract at the quoted rate and the Customer shall have no claim whatsoever against the Company for any loss that the Customer might incur as a result of the Company cancelling or resiling from the quotation or executory agreement.
37.3 Without in any way limiting the provisions above, all quotations, agreements and Tariffs are subject to revision without notice having regard to changes in currency rates and upward movements in amounts payable by or on behalf of or at the instance 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 nominated by 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
37.4 Notwithstanding that the Carrier determines the freight rate, for Customers paying freight in a currency other than the currency determined by the Carrier, the Company shall be entitled to determine and fix the freight rate equivalent in local currency in accordance with the prevailing rate of exchange applicable to the relevant currency, at any time it deems appropriate.
38 THIRD PARTY COSTS
38.1 All invoices from Third Parties, and in particular, invoices from the port and terminal authorities paid by the Company on behalf of the Customer are confidential and under no circumstances shall such invoices be disclosed to the Customer.
38.2 The Company is entitled to the benefits of any discounts obtained from any authority, public or private entity, and to retain and be paid all brokerages, commissions, allowances, rebates and other remunerations or fees of whatsoever nature and kind and shall not be obliged to disclose or account to the Customer for any such amounts received or receivable by it.
PART F: GOVERNING LAW AND OTHER PROVISIONS
39 GOVERNING LAW AND JURISDICTION
39.1 These Trading Terms and Conditions and all agreements entered into between the Company and the Customer pursuant thereto and on the terms thereof shall be governed by and construed in accordance with the laws of the Republic of South Africa.
39.2 The Customer hereby consents for all purposes whatsoever in relation to its business relationship with the Company to the non-exclusive jurisdiction of the KwaZulu-Natal High Court, Durban, exercising either its admiralty or civil jurisdiction.
39.3 Notwithstanding the above, such consent to jurisdiction will not preclude the Company’s right to attach or arrest an asset belonging to such party in accordance with the Admiralty Jurisdiction Regulation Act 05 of 1983, whether to found or confirm jurisdiction, or to obtain security for its claim, or otherwise, whether the claim is to be prosecuted in the jurisdiction or elsewhere.
40 NON-VARIATION AND NON-WAIVER
40.1 No variation of these Trading Terms and Conditions, including this clause, shall be binding on the Company unless embodied in a written document signed by a duly authorised director of the Company.
40.2 Any purported variation or alteration of these Trading Terms and Conditions 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 trading terms and conditions by the Customer.
40.3 No extension of time, waiver or relaxation of any of these Trading Terms and Conditions shall operate as an estoppel against any party in respect of its rights under these trading terms and conditions, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with these Trading Terms and Conditions.
41 SPECIAL CONDITIONS RELATED TO ELECTRONIC DATA
41.1 Notwithstanding the provisions of any legislation or other law regulating electronic communications and transactions, the Company shall only be deemed to have received electronic data and/or messages when such electronic data and/or messages have been retrieved, processed and read by the addressee.
41.2 Under no circumstances whatsoever and howsoever arsing (including negligence on the part of the Company or its employees) shall the Company be liable for any loss or damage arising from or consequent upon the provision by the Company to the Customer in whatever manner and/or form, of incorrect information, including electronically communicated information or data, where such incorrect information or data has been generated by and provided to the Company by any person with whom the Company conducts business and/or any other third party.
41.3 The Company shall furthermore under no circumstances whatsoever be liable for any loss or damage arising from or consequent upon any failure and/or malfunction for whatever reason and regardless of negligence in whatever degree on the part of the Company or the Company’s computer systems and /or software programmes, provided and/or operated by the Company and/or by any person with the Company conducts business and/or third party, and which systems shall include the Company’s electronic automated information services provided to its Customers (if any).
42 DOMICILIUM ADDRESS AND NOTICES
42.1 The Customer's physical address as set out in the credit application form or, failing which, on the Customer's most recently reviewed letterhead, or failing which the Customer's registered or physical address, shall constitute the Customer's domicilium citandi et executandi for all purposes in connection with any agreement entered into by the Customer and the Company, unless the Customer provides an alternative domicilium by written notice to the Company.
42.2 The Company's physical address at 29th Floor, Old Mutual Building, 303 Dr Pixley Kaseme (West) Street, Durban, shall constitute the Company's domicilium citandi et executandi for all purposes in connection with any agreement entered into by the Customer and the Company.
42.3 Notices given to the above address or by facsimile or electronic mail to the Customer's current fax number or electronic mail address shall be deemed to have been duly given:
(1) 7 (seven) days after posting, if sent by registered post;
(2) on delivery, if delivered by hand;
(3) on dispatch, if sent by facsimile or electronic mail.
43 DISPUTE RESOLUTION
43.1 The dispute resolution procedure contained in this clause (“Dispute Resolution Procedure”) shall apply to any dispute, claim or difference between the Parties arising out of or relating to this Agreement (“a dispute”).
43.2 A dispute will not be deemed to be a dispute until one of the Parties has provided a written notice conveying the nature and scope of the dispute to the other Party.
43.3 In the even that a dispute is raised by either party, the parties agree to the following procedure to resolve the dispute:
43.4 Settlement and negotiations
43.4.1 The Parties shall first make every effort to resolve the dispute, through negotiations and discussions, amicably in good faith and based on principles and terms that are fair, equitable and are of mutual benefit to both parties, with the aim of preserving a positive business relationship between the parties.
43.4.2 If the dispute cannot be resolved between the parties, then the dispute shall be referred to mediation.
43.5.1 A dispute that cannot be resolved through settlement and negotiations, shall be referred to mediation with a mediation committee, consisting of the Contract Managers and/ or the directors or managers of the Parties, and a representative from both parties (“Mediation Committee”), for discussion and resolution.
43.5.2 If an agreement is reached by the Mediation Committee, it shall be reduced to writing, and shall be binding on both Parties.
43.5.3 If the Meditation Committee are unable to resolve the dispute within 14 (TEN) working days of referral to the Mediation Committee, either Party may refer the matter to Arbitration.
43.6.1 The arbitration shall be conducted in accordance with the provisions of the Arbitration Act, 1965 (Act No 42 of 1965, as amended from time to time), provided that –
(1) a single arbitrator shall be appointed, as agreed between the parties;
(2) the arbitrator shall be an independent practicing advocate or attorney of not less than 10 (TEN) years standing or experience, alternatively a suitably qualified independent third party, as mutually agreed between the parties, within 10 (TEN) days after the date on which the Arbitration is called for.
43.6.2 If the parties fail to reach agreement within 14 (TEN) days after arbitration has been called for on the appointment of the arbitrator, such arbitrator shall be appointed by the President for the time-being of the Law Society of KwaZulu Natal.
43.6.3 The arbitration proceedings shall be held informally and in a summary manner, and all procedural requirements and formalities shall be determined by the arbitrator. In determining such formalities and procedure, the arbitrator does not need to observe the normal strict rules of evidence or usual formalities of procedure.
43.6.4 The decision of the arbitrator shall be final and binding on the Parties. The arbitrator shall be allowed to impose a penalty on the guilty party which it may deem fit in the circumstances and after considering all the relevant factors of each dispute referred to him. The decisions of the arbitrator shall be final and binding on the Parties, and shall be carried out with immediate effect.
43.6.5 The cost of the arbitration proceedings shall be borne by the parties, as decided by the arbitrator.
43.6.6 This arbitration clause shall not prevent the Parties from access to an appropriate court of law for –
43.6.7 interim relief in the form of an interdict, mandamus or order for specific performance pending the outcome of an arbitration in terms hereof or in respect of such arbitration or expert determination, as the case may be; an order for the payment of a liquidated amount of money on the basis of facts which are not bona fide in dispute at the commencement of such proceedings.