Edgin Logistic Solutions (Pty)
Limited
Trading Terms and Conditions
1. INTERPRETATION
In these trading terms and conditions:- 1.1. the headings to the clauses are for reference purposes
only and shall not aid in the interpretation of the clauses to which
they relate; 1.2. 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 unincorporate) and vice
versa; 1.3. the following terms shall have the meanings assigned to
them hereunder and cognate expressions shall have a
corresponding meaning, namely - 1.3.1. "the company" means the company referred to
above, or if it exercises its right under clause 2 , the member
of the group
in respect of which it exercises its rights; 1.3.2. "customer" " means any person at whose
request or on whose behalf the company undertakes any business or provides
any advice, information or service; 1.3.3. "goods" means any goods handled, transported
or dealt with by or on behalf of or at the instance of the company or which
come 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; 1.3.4. "the 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 in terms of clause 2 ; 1.3.5. "the 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. 2. MEMBERS OF THE GROUP RENDERING SERVICES TO THE CUSTOMER
The company may at its election perform all or any business undertaken or provide
advice, information or services, whether
gratuitous or not, either itself or it may procure that any member of the group
undertakes such business or provides such
advice, information or services as principal upon and subject to the terms and
conditions contained herein which shall apply
mutatis mutandis to the customer and any such member of the group.
3. APPLICATION OF TRADING TERMS AND CONDITIONS
Subject to clause 5, all and any business undertaken or advice,
information or services provided by the company, whether
gratuitous or not, is undertaken or provided on these trading terms and conditions. 4. 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.
5 APPLICABLE LEGISLATION
5.1 If the company is obliged, in the execution of any of its duties
and/or responsibilities to comply with any common law or
legislative enactment ("the 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 trading terms and conditions. 5.2 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. 5.3 If any of the terms of these trading terms and conditions
is 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, and such amendment and/or alteration shall not in any way
affect the remaining provisions of these trading terms and conditions.
6. FIATA COMBINED TRANSPORT BILL OF LADING
The company shall be entitled to issue in respect of the whole or part of any
contract for the movement of goods a FIATA
combined transport bill of lading ("FBL") provided that where a FBL
is issued these trading terms and conditions shall continue
to apply except insofar as they conflict with the terms and conditions applicable
to the FBL. The issue of the FBL by the
company shall entitle it to raise an additional charge determined by the company,
to cover its additional obligations arising under
the FBL.
7. EXCLUSION OF OBLIGATIONS OF COMMON OR PUBLIC CARRIER
The company deals with goods only on the basis that it is neither a common carrier
nor a public carrier.
8 COMPANY'S DISCRETION IN THE ABSENCE OF INSTRUCTIONS
In the absence of specific instructions given timeously in writing by the customer
to the company - 8.1 it shall 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; 8.2 the company shall have an absolute
discretion to determine the means, route and procedure
to be followed by it in
performing all or any of the acts or services it has agreed to perform; 8.3 in all cases where there is a choice of tariff rates or
premiums offered by any carrier, warehouseman, underwriter, or other
person depending upon the declared value of the relevant goods or the extent
of the liability assumed by the carrier,
warehouseman, underwriter or other person, it shall be in the discretion of the
company as to what declaration, if any, shall be
made, and what liability, if any, shall be imposed on the carrier, warehouseman,
underwriter or other person.
9 COMPANY'S GENERAL DISCRETION
9.1 Notwithstanding 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 customer's
instructions, the company shall be entitled to do
so and shall not incur any liability in consequence of doing so.
9.2 If events or circumstances come to the attention of the
company, its agents, servants, or nominees which, in the opinion of
the company, make it in whole or in part, impossible or impracticable for the
company to comply with a customer's instructions
the company shall take reasonable steps to inform such customer of such events
or circumstances and to seek further
instructions. If such further instructions are not timeously received by the
company in writing, the company shall, at its sole
discretion, be entitled to detain, return, store, sell, abandon, or destroy all
or part of the goods concerned at the risk and
expense of the customer.
10. INSURANCE
The company 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. 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. Insofar as the company agrees to arrange insurance the company
acts solely as agent for and on behalf of the
customer.
11 COMPANY'S OBLIGATIONS IN THE ABSENCE OF INSTRUCTIONS
Unless specific written instructions are timeously given to and accepted by the
company, the company shall not be obliged to - 11.1 make any declaration for the purpose
of any statute, convention, or contract, as to the nature
or value of any goods or as
to any special interest in delivery. In particular, the company shall be under
no obligation to make any declaration or to seek any
special protection or cover from any carrier in respect of any goods which are,
or fall within the definition ascribed thereto by
that body of dangerous goods or other goods which require special conditions
of handling or storage; 11.2 arrange for any particular goods
to be carried, stored or handled separately from other
goods.
12 CUSTOMER'S UNDERTAKINGS
12.1 For all purposes hereunder the customer shall be deemed to have
in relation to the customer's business, the goods and
the services to be rendered by the company in regard thereto, reasonable knowledge
of all matters directly or indirectly relating
thereto or arising therefrom including, without limitation, terms of sale and
purchase and all matter relating thereto and the
customer undertakes to supply all pertinent information to the company. 12.2 The customer warrants that - 12.2.1 it is either the owner or the authorised agent of the
owner of any goods in respect of which the customer instructs the
company and that each such person is bound by these trading terms and conditions; 12.2.2 in authorising the customer to
enter into any contract with the company and/or in accepting
any document issued by the
company in connection with such contract, the owner, sender or consignee is bound
by these trading terms and conditions for
itself and its agents and for any parties on whose behalf it or its agents may
act, and in particular, but without prejudice to the
generality of the aforegoing, it accepts that the company shall have the right
to enforce against them jointly and severally any
liability of the customer under these trading terms and conditions or to recover
from them any sums to be paid by the customer
which upon proper demand have not been paid; 12.2.3 all information and instructions supplied or to be supplied
by it to the company is and shall be accurate, true and
comprehensive, and in particular, without derogating from the generality of the
aforegoing, the customer shall be deemed to be
bound by and warrants the accuracy of all descriptions, values and other particulars
furnished to the company for customs,
consular and other purposes, and the customer warrants that it will not withhold
any necessary or pertinent information, and
indemnifies the company against all claims, losses penalties, damages, expenses
and fines whatsoever, whensoever and
howsoever arising as a result of a breach of the aforegoing whether negligently
or otherwise including, without derogating from
the generality of the aforegoing, any assessment or reassessment; 12.2.4 all goods will be properly, adequately and appropriately
prepared and packed, stowed, labelled and marked, having
regard inter alia to the implementation by or on behalf of the company or at
its instance of the contract involved, and the
characteristics of the goods involved and are capable of withstanding the normal
hazards inherent in the implementation of
such contract; 12.2.5 where goods are carried in or on containers, trailers,
flats, tilts, railway wagons, tanks, igloos or any other unit load
devices specifically constructed for the carriage of goods by land, sea or air,
(each such device hereinafter individually referred
to as "the transport unit") then save where the company has been given
and has accepted specific written instructions to load
the transport unit -
that the transport unit has been properly and competently loaded;
and 12.2.5.2 that the goods involved are
suitable for carriage in or on the transport unit; and 12.2.5.3 that the transport unit is
itself in a suitable condition to carry the goods loaded
therein and complies with the
requirements of all relevant transport authorities and carriers.
13. RECOVERY OF DEBTS DUE TO THE COMPANY
The company shall be entitled to recover any amounts due to it by the customer
in respect of instructions relating to or in terms
of any contract in respect of particular goods from the customer, or if the customer
acts as agent for a disclosed or undisclosed
principal from the customer or the principal, as the company in its absolute
discretion deems fit.
14 COMPANY ENTITLED TO ACT AS AGENT OR PRINCIPAL
IN CONTRACTING
14.1 Unless otherwise agreed in writing, the company in procuring the
carriage, storage, packing or handling of goods shall be
entitled to act either as an agent for and on behalf of the customer or as a
principal, as it in its absolute discretion deems fit. 14.2 The offer and acceptance of a fixed
price for the accomplishment of any task shall not itself
determine whether such task
is to be arranged by the company acting as agent for and on behalf of the customer
or as a principal. 14.3 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. 14.4 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 limitation, contracts for the - 14.4.1 carriage of goods by any route or means or person; 14.4.2 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. 14.4.3 carriage or storage of goods in break-bulk form or in
or on transport units as defined in clause 12.2.5 or with or
without
other goods of whatsoever nature.
15 SUBCONTRACTING
15.1 Any business entrusted by the customer to the company may, in the
absolute discretion of the company, be fulfilled by the
company itself, by its own servants performing part or all of the relevant services,
or by the company employing, or entrusting
the goods or services to third parties on such conditions as may be stipulated
by, or negotiated with, such third parties for the
purposes of such services, or such part thereof as they may be employed to carry
out. 15.2 Where the company employs third
parties to perform all or any of the functions which
it has agreed to perform, the
customer agrees that the company shall have no responsibility or liability to
its customer for any act or omission of such third
party, even though the company may be responsible for the payment of such third
party's charges; but the company shall, if
suitably indemnified against all costs, (including attorney and client costs)
which may be incurred by or awarded against the
company, take such action against the third party on the customer's behalf as
the customer may direct.
16. TERMS AND CONDITIONS OF AGENTS AND SUBCONTRACTORS
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.
17. GOODS REQUIRING SPECIAL ARRANGEMENTS
Except under special arrangements previously made in writing the company will
not accept or deal with bullion, coin, precious
stones, jewellery, valuables, antiques, pictures, human remains, livestock or
plants. Should the customer nevertheless deliver
such goods to the company or cause the company to handle or deal with any such
goods otherwise than under special
arrangements previously made in writing the company shall incur no liability
whatsoever in respect of such goods, and in
particular, shall incur no liability in respect of its negligent acts or omissions
in respect of such goods. A claim, if any, against the
company in respect of the goods referred to in this clause 17 shall be governed
by the provisions of clauses 40 and 41.
18 GOODS REQUIRING PRIOR CONSENT OF THE COMPANY
18.1 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 or employees any goods,
including radio-active materials, which may be
or become dangerous, inflammable or noxious, or which by their nature may injure,
damage, taint or contaminate, or in any way
whatsoever adversely affect any person, goods or property, including goods likely
to harbour or attract vermin or other pests.
The customer warrants that such goods, or the case, crate, box, drum canister,
tank, flat, pallet, package or other holder or
covering of such goods will comply with any applicable laws, regulations or requirement
of any authority or carrier and that the
nature and characteristics of such goods and all other data required by such
laws, regulations or requirements will be
prominently and clearly marked on the outside cover of such goods. 18.2 If any such goods are delivered to the company, whether
or not in breach of the provisions of clause 18.1, such goods may
for good reason as the company in its discretion deems fit including, without
limitation, the risk to other goods, property, life or
health be destroyed, disposed of, abandoned or rendered harmless or otherwise
dealt with at the risk and expense of the
customer and without the company being liable for any compensation to the customer
or any other party, and without prejudice
to the company's rights to recover its charges and/or fees including the costs
of such destruction, disposal, abandonment or
rendering harmless or other dealing with the goods. The customer indemnifies
the company against all loss, liability or damage
caused to the company as a result of the tender of goods to the company and/or
out of the aforegoing.
19 PERISHABLE GOODS
19.1 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, sender, owner or consignee, if - 19.1.1 such goods have begun to deteriorate or are likely to
deteriorate; 19.1.2 such goods are insufficiently
addressed or marked; 19.1.3 the customer cannot be identified; 19.1.4 the goods have not been collected
or accepted by the customer or any other person after
the expiration of 21 days from
the company notifying the customer in writing to collect or accept such goods,
provided that if the company has no address for
the customer such notice period shall not be necessary, and payment or tender
of the net proceeds, if any, of the sale thereof
after deduction of those charges and expenses incurred by the company in respect
thereof shall be equivalent to delivery of
such goods. 19.2 Should any amount owing by the customer to the company
in respect of any referred to in clause 19.1 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 days by
private treaty. 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.
20 THE 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: - 20.1 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. 20.2 The provisions of clause 19.2 shall apply
mutatis mutandis.
21 WAREHOUSING
Pending forwarding and/or delivery by or on behalf of the company, goods may
be warehoused or otherwise held at any place
as determined by the company in its absolute discretion, at the customer's expense.
22 COLLECTION OF EXPENSES AND C O D
22.1 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
therefor if they are not paid by such
consignee or any other person immediately when due. 22.2 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 due date for payment.
23 SUNDRY GOODS RECOGNISABLE AS THE CUSTOMER'S
The company shall have no obligation to take any action in respect of any goods
which may be recognisable as belonging to the
Customer unless and until it receives suitable instructions relating to those
goods together with all necessary documents.
24 EXAMINATION OF LANDED GOODS
24.1 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 a discrepancy exists. 24.2 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 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, whether
such error or inaccuracy is the result of negligence on the part of the company
or otherwise. The company shall be entitled to
levy a charge on the customer for the counting of goods in such circumstances.
25 DUTIES, TAXES, IMPOSTS, LEVIES AND DEPOSITS
25.1 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 duties, taxes, imposts,
levies, deposits or out-lays 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 and for
any payments, fines, penalties, expenses, loss or
damage or whatsoever incurred or sustained by the company in connection therewith
or arising thereout. 25.2 The company shall bear no liability
in consequence of the fact that there may be a change
in the rate of duty, wharfage,
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 in some other way had any act been
performed at a different time.
26 RECOVERY OF DUTIES INCORRECTLY PAID
Where as a result of any act or omission by or on behalf or at the instance of
the company and whether or not such act or
omission was negligent, any duty, tax, levy, railage, wharfage, freight, cartage
or any other impost or charge has been paid or
levied in an incorrect amount, then any responsibility or liability to the customer
which the company may otherwise have will
cease and fall away if the customer does not - 26.1 within a reasonable time having regard to all the circumstances,
and in particular to the time allowed for the recovery from
the payee of the amount overpaid, advise the company that an incorrect amount
has been paid or levied, and 26.2 do all such acts as are necessary
to enable the company to effect recovery of the amount
incorrectly paid.
The fact that the customer may not be aware that any such incorrect payment has
been made shall not constitute a
circumstance to be taken into account in calculating what is a reasonable time
for the purpose of clause 26.1. Should any act or
omission by the customer, whether or not such act or omission was due to ignorance
on the part of the customer, and whether
or not such ignorance was reasonable or justified in the circumstances, prejudice
the company's right of recovery, the customer
shall be deemed not to have complied with the provisions of clauses 26.1 and 26.2.
27 PAYMENT BY THE CUSTOMER 27.1 Unless otherwise specifically agreed by the company in
writing the customer shall pay to the company in cash immediately
upon presentation of account 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. 27.2 All and any moneys received by the company from the customer
shall be appropriated by the company in its sole and
absolute discretion in respect of any undisputed indebtedness owing by the customer
to the company, notwithstanding that the
customer might, when making payment, seek to appropriate the payment so made
to any particular debt or portion of a debt.
28. DEBITING FEES AND DISBURSEMENTS
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 and whether
or not any notice had been given that further
debits were to follow.
29. RISK OF POSTED ITEMS
Notwithstanding any prior dealings between the company and the customer, all
documents, cash, cheques, bank drafts or other
remittances, sent to the company through the post shall be deemed not to have
been received by the company unless and until
they are actually received by the company.
30 QUOTATIONS 30.1 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 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. 30.2 Without in any way limiting the
provisions of clause 30.1 all quotations
and agreements are subject to revision without
notice having regard to changes in currency exchange 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
of the company or any other 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.
31. NO CLAIMS AGAINST COMPANY DIRECTORS AND EMPLOYEES
The customer undertakes that no claim shall be made against any director, servant
or employee of the company which imposes
or attempts to impose upon him any liability in connection with the rendering
of any services, which are the subject of these
trading terms and conditions, and hereby waives all and any such claims.
32 CUSTOMER'S ORAL INSTRUCTIONS
The customer's instructions to the company shall be precise, clear and comprehensive
and in particular, but without limitation,
shall cover any valuation or determination issued by Customs in respect of any
goods to be dealt with by or on behalf of or at
the request of the company. Instructions given by the customer shall be recognised
by the company as valid only if timeously
given specifically in relation to a particular matter in question. 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.
33. VARIATION OF THESE TRADING TERMS AND CONDITIONS
No variation of these trading terms and conditions shall be binding on the company
unless embodied in a written document
signed by a duly authorised director of the company. 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 standard trading terms and conditions
by the customer.
34. NON WAIVER
No extension of time or waiver or relaxation of any of the 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.
35. GOVERNING LAW
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.
36. SUBMISSION TO JURISDICTION
The parties agree that any legal action or proceedings arising out of or in connection
with these trading terms and conditions
shall be brought in the division of the Supreme Court of South Africa where the
company's head office is situated at the
commencement of the proceedings, and the customer irrevocably submits to the
non-exclusive jurisdiction of such court.
37. 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.
38. LIEN
All goods and documents relating to goods including bills of lading 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 moneys due in respect of such
goods or for other moneys due to the company from the customer, sender, owner,
consignee, importer or the holder of the bill
of lading or their agents, if any. If any moneys due to the company are not paid
within 14 days after notice has been given to the
person from whom the moneys 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 nett proceeds applied in or towards satisfaction of such indebtedness.
39 INDEMNITY BY THE CUSTOMER
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 liabilities, damages,
costs and expenses whatsoever incurred or
suffered by the company arising directly or indirectly from or in connection
with 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 and in particular, but without
limitation of the aforegoing, in respect of any liability whatsoever which may
be incurred-
39.1 to 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 39.2 to 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 39.3 to any carrier of the goods if
the company is the consignor or consignee of the goods;
and/or 39.4 in respect of any goods referred
to in clause 18.
40 LIMITATION OF COMPANY'S LIABILITY 40.1 Subject to the provisions of clause 40.2 and
clause 41, 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 - 40.1.1 any negligent act or omission or statement by the company
or its servants, agents or nominees ; and/or 40.1.2 any act or omission of the customer
or agent of the customer with whom the company deals;
and/or 40.1.3 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 40.1.4 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 40.1.5 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 40.1.6 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 40.1.7 loss or non-delivery of any separate package forming
part of a consignment of for loss from a package or an unpacked
consignment or for damage or mis-delivery; and/or 40.1.8 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 or
mandate;
unless - a) such claim arises from a grossly negligent act or omission
on the part of the company or its servants; and b) such claim arises at a time when
the goods in question are in the actual custody of the
company and under its actual control;
and c) in the instance provided in clause 40.1.7 above,
the company receives a written notice within 5 days after the end of the
transit where the transit ends in the Republic of South Africa or within 14 days
after the end of the transit where the transit ends
at a place outside the Republic of South Africa. 40.2 Notwithstanding anything to the contrary contained in these
trading terms and conditions, the company shall not be liable
for any indirect and consequential loss arising from any act or omission or statement
by the company, its agents, servants or
nominees, whether negligent or otherwise.
41 MONETARY LIMITATION OF LIABILITY OF THE COMPANY 41.1 In those cases where the company is liable to the customer
in terms of clause 40.1, in no such case whatsoever shall any
liability of the company, howsoever arising, exceed whichever is the least of
the following respective amounts: 41.1.1 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; 41.1.2 the value of the goods declared for insurance purposes; 41.1.3 double the amount of the 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. 41.2 If it is desired that the liability of the company in those
cases where it is liable to the customer in terms of clause 40.1
should not be governed by the limits referred to in clause 40.1 written notice thereof must be received by the company
before any goods or documents are entrusted to or delivered to or
into the control of the company (or its agents or sub-contractors), together
with a statement of the value of the goods. Upon
receipt of such notice the company may in the exercise of its absolute discretion
agree in writing to its liability being increased to
a maximum amount equivalent to the amount stated in the notice, in which case
it will be entitled to effect special insurance to
cover its maximum liability and the party giving the notice shall be deemed,
by so doing, to have agreed and undertaken to pay
the company the amount of the premium payable by the company for such insurance.
If the company does not so agree the
limits referred to in clause 41.1 shall apply.
42. GENERAL AVERAGE
The customer indemnifies and holds harmless the company in respect of any claims
of a general average nature which may be
made against the company and the customer shall provide such security as may
be required by the company in this connection.
43. BREACH
If the company breaches any of these trading terms and conditions or any agreement
between it and the customer and fails to
remedy such breach within 30 days of the date of receipt of written notice requiring
it to do so then the customer shall be
entitled to compel performance by the company of the obligations it has defaulted
in, but shall not be entitled to cancel these
trading terms and conditions and any agreement between the customer and the company.
44. WARRANTIES AND REPRESENTATIONS BY THE COMPANY
The company makes no warranties and representations to the customer save as may
be specifically provided herein or as
notified in writing by the company to the customer from time to time. The customer
acknowledges that the company is not in
any way bound by any oral statement, representation, guarantee, promise, undertaking,
inducement or otherwise which may
have been made at any time by any salesman, employee, representative or any person
acting or purporting to act for or on
behalf of the company, whether negligently or otherwise unless such statements,
representations, guarantees, promises,
undertakings, warranties or inducements are supplied or made in writing by an
employee duly authorised by written resolution of
the board of directors of the company in response to a written enquiry specifying
accurately and in complete detail what
information is required.
45. DISPUTES 45.1. Should there be any dispute of any nature whatsoever between
the parties in regard to any aspect, matter or thing relating
to these trading terms and conditions 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 thought the company had performed properly and to the customer's
satisfaction. 45.2. The customer's remedy, having
performed its obligations as provided in clause 45.1,
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. 45.3. Without affecting the generality of clauses 45.1 and 45.2 the
customer shall not be entitled to withhold payment of any
amounts, by reason of any dispute with the company, whether in relation to the
company's performance in terms of any
agreement, or lack of performance or otherwise, after which payment the customer's
rights of action against the company in
terms of this clause can be enforced. Until such payment is made, any rights
that the customer may have, shall be deemed not
yet to have arisen and it is only the payment to the company which releases such
rights and makes them available to the
customer in respect of any claim that he may have against the company. 45.4. In any dispute between the company and the customer the
company shall be deemed to have performed its obligations in
a proper and workmanlike manner and strictly in accordance with any agreement
between it and the customer, until such time
as the customer proves the contrary.
46. TIME FOR PERFORMANCE BY THE CUSTOMER
Time is of the essence for the performance by the customer of all obligations
owed to the company in terms of any agreement
which it governed by these terms and conditions.
47. SEVERABILITY
If any provision of these terms and conditions is unenforceable, then the company
shall be entitled to elect (which election may
be made at any time) that such provision shall be severed from the remaining
provisions of these terms and conditions which
shall not be affected and shall remain of full force and effect.
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