In these trading terms and conditions which are based on the South African Association of Freight Forwarders’ 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 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:
1.3 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 C4 Logistics and its subsidiaries and affiliates and successors in title and assigns, 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 which is a holding company or subsidiary of the company from the time which may render a service 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.
1.3.6 “mutatis mutandis” means the necessary changes having been made.
1.3.7 “inter alia” means “among other things”
The company may at its election perform all or any business undertaken or provide advice, information or service, 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 service as principal upon and subject to the terms and conditions contained herein which shall apply mutatis mutandis to the customer, the owner and any such member of the group. Without detracting from the afore going, if the company elects to procure that a member of the group undertakes such business or provides such advice, information or services as principal, these terms and conditions constitute a stipulation for the benefit of that member of the group, which benefit that member will be entitled to accept without having to give notice to that effect to the customer or owner.
Subject to clause 5, all and any business undertaken of advice, information of services provided by the company whether gratuitous or not, is undertaken or provided on these trading terms and conditions.
All handling, packing, loading, unloading, palletising, de-palletising, warehousing, storage 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 and the owner. The customer indemnifies the company accordingly and the customer waives any claims which it may have against the company in respect of or pursuant all or any of these services or any matter relating thereto.
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 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.
The company shall be entitled to issue in respect of the whole or part of any contract for the movement of goods, a combined transport document or bill of lading (“CBL”) which may be, without limitation, a FIATA combined transport bill of lading, a warehouse receipt, a forwarders receipt, a sea waybill, an air waybill, a consignment note, a delivery note, a container movement order, a transport order, a groupage bill of lading, a house bill of lading, a “received for shipment” bill of lading or a dispatch bill of lading (whether reflecting the company or another as the relevant carrier) provided that where a CBL is issued these trading terms and conditions shall continue to apply as between the company and the customer except insofar as they conflict with the terms and conditions applicable to the CBL, which CBL provisions will then prevail. The issue of the CBL by the company shall entitle it to raise an additional charge determined by the company, to cover its additional obligations arising under the CBL.
The company deals with goods only on the basis that it is neither a common carrier nor a public carrier.
In the absence of specific, instructions given timeously in writing by the customer to the company-
8.1 It shall be in 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 any other person.
8.4 C4 Logistics shall not incur any liability as a result of reasonably exercising its discretion in the absence of timeous instructions.
9.1 Notwithstanding anything in the contrary herein contained, if at any time the company should consider it to be in the customer’s interest 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 comes to the attention of the company, its agents, servant, 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, all or part of the goods concerned at the risk and expense of the customer.
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 behalf of the customer.
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.
12.1.1 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 respect thereto, reasonable knowledge of all matters directly or indirectly relating thereto or arising therefrom including, without limitation, terms of sale and purchase and all matters relating thereto and the customer undertakes to supply all pertinent information to the company.
12.1.2 The customer warrants that-
12.1.3 It is either the owner or the authorised agent or 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;
12.1.4 In authorizing 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 an parties on whose behalf it or its agents may act, and in particular, but without prejudice to the generality of the afore going, 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;
12.1.5 All information and instructions supplied or to be applied by it to the company is and shall be accurate, true and comprehensive, and in particular, without derogating from the generality of the afore going, 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 and howsoever arising as a result of a breach of the afore going whether negligently or otherwise, without derogating from the generality of the afore going, any assessment or reassessment;
12.1.6 All goods will be properly, adequately and appropriately prepared and packed, stowed, labelled and marked, having regarding inter alia to the implementation by or on behalf of the company or at its instance of the contract involved and are capable of withstanding the normal hazards inherent in the implementation of such contract;
12.1.7 Where goods are carried in or on containers, trailers, flats, tilts, railway wagons, tanks igloos or any other unit load devices specifically contracted for the carriage of goods by land, sea or air (each such device here in after 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 –
18.104.22.168 that the transport unit has been properly and competently loaded; and
22.214.171.124 that the goods involved are suitable for carriage in or on the transport unit; and
126.96.36.199 that the transport unit in itself in a suitable condition to carry the goods loaded therein and complies with the requirements of all relevant transport authorities and carriers.
13.1 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 an agent for a disclosed or undisclosed principal as the company in its absolute discretion deems fit
13.2 If the company or any member of the group institutes legal or similar proceedings against the customer or the owner under these terms and conditions and is successful in those proceedings (whether as a result of any order, ruling, agreement or otherwise howsoever), the customer shall be liable for all costs and expenses reasonably incurred by the company or member in that regard (including, without limitation, all legal costs on the scale of attorney and own client, all collection commission and all tracing agents’ fees). The customer indemnifies and holds harmless the company or that member, as the case may be.
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 or 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 or as principal.
14.3 The customer acknowledge that when the company, as agent for and 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 instruction, 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 in or on transport units as defined in clause 12.2.5 or with or without other goods whatsoever nature.
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 charge. The company shall, if it has, in its reasonable discretion, been suitably indemnified against all costs (including attorney and client costs) which may be incurred or awarded against the company and has been provide with adequate security in that regard, take such action against the third party on the customer’s behalf as the customer may request, alternatively may cede to the customer any claim or right or cause of action which the company may have against the third party in that regard.
16.1 Notwithstanding anything to the contrary contained herein but subject to 16.2, the customer agrees that all goods shall be dealt with by the company on the terms and condition, whether or not inconsistent with these terms and condition, stipulated by the carrier, 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.
16.2 Notwithstanding 16.1, if the terms and conditions stipulated by the carrier, warehousemen, government departments or other party impose any obligation, liability or duty on the company and that obligation, liability or duty is more onerous on the company that the correlating obligation, liability or duty imposed on the company under these terms and conditions, these terms and conditions shall apply as between the company and the customer or owner to the exclusion of the terms and conditions stipulated by the carrier, warehousemen, government department or other party.
Except under special arrangements previously made in writing the company will not accept or deal with bullion, coin, special 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 clause 40 and 41.
18.1 The customer shall obtain in advance the company’s specific written consent to accept into this 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 requirements of any authority or carrier and that the nature and characteristics of such goods and all other data required by such laws, regulations or requirements will be prominently and clearly marked on the outside cover of 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 t 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, liabilities or damage caused to the company as a result of the tender of goods to the company and/or out of the foregoing.
19.1.1 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.
9.2 Should any amount owing by the customer to the company in respect of any matter referred to in clause 19.1 become due and payable and remain unpaid, the company shall be entitled and the customer hereby authorizes 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 there from all costs, charges and expenses incurred by the company, shall be applied in reduction or discharge, as the case may be, or the customer’s obligations to the company in respect of such goods with 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 there from all costs, charges and expenses incurred by the company in respect thereof, exceed the full amount of the customer’s obligations to the company shall be obliged to refund such excess to the customer.
20.1 If, at the time that the goods are delivered by or on behalf of the company to the customer or its agent, there are any signs of external damage or pilferage to any packages and/or to the exterior of FCL containers or tempering to FCL container seals, that damage or pilferage or tampering must be noted on the delivery note at the time of delivery, falling which the company shall have no liability in respect of that damage or pilferage or any resulting matter.
20.2 The company will have no obligation or responsibility to check or count the quantity of goods contained in any package or FCL containers however packaged and will not be liable for any shortages of any goods in any packages or FCL containers delivered to the customer or its agent.
20.3 The customer is responsible for reporting all damages and shortages of or to the goods delivered to the customer or its agent, if any, to its insurer.
20.4 Unless otherwise specifically agreed by the company in writing, the customer will be responsible, at its own cost and risk, for off-loading all goods delivered to the customer or on behalf of the company, its sub-contractor or agent.
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:-
21.1 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,
21.2 The provisions of clause 19.2 shall apply mutatis mutandis.
22.1 Pending forwarding and/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 risk and expense.
22.2 If the goods are so warehoused or stored, the customer shall bear the entire risk thereof and the company shall not be liable for any damage to or loss of all or any of the goods so warehoused, or stored. The company will only endeavour to have the goods so warehoused or stored to be insured if the customer expressly instructs the company to do so, in which case the cost of the insurance will be borne by the instructing customer.
23.1 When the 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.
23.2 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.
The company shall have no obligation to take any action in respect of any goods which may be recognizable as belonging to the customer unless and until it receives suitable instructions relating to those goods with all necessary documents and it has, in its reasonable discretion, been provided with an appropriate indemnity and security in that regard.
25.1 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 discharge agent that such goods have been landed and that such a discrepancy exists.
25.2 The company will not be responsible for examining or counting any goods received by it where such goods are bundled, palletized 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.
26.1 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 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 there out.
26.2 The company shall bear no liability in consequence of the fact that there may be a change 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 affected in some other way had any act been performed at a different time.
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, cargo dues, 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-
27.1 with 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
27.2 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 27.1. 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 clause 27.1 and 27.2.
28.1 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.
28.2 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 to so made to any particular debt or portion of a debt.
29.1 The company shall under no circumstances be precluded from raising a debit and obtaining payment in respect of any fee or disbursement due to it notwithstanding the fact that a previous debit or debit, 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.
29.2 The customer acknowledges and accepts that due to the fact that services are being rendered to it by the company, and monies are being disbursed by the company on the customer’s behalf over an extended period, the rendering of an invoice by the company will not necessarily coincide with the month in which the customer takes delivery of the goods or alternatively the month in which the customer’s trading partner takes delivery of the goods. The customer will not be entitled to defer payment of any invoice by reason of the foregoing.
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.
31.1 The company shall be entitled at any time by notice to the customer to cancel 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 executor agreement.
31.2 Without in any way limiting the provisions of clause 31.1 all quotations and agreements are subject to revision 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.
The customer undertakes that no claims 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 waive all and any such claims.
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 the Customs in respect of any goods to be dealt with b or on behalf of or at the request of the company. Instruction given by the customer shall be recognized 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.
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.
No extension of time or waiver or relaxation of any of the trading terms and conditions shall operate as an estoppels 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. Any extension, waiver or relaxation shall apply only in the specific instance in which, and for the specific purpose for which, it is granted.
These trading terms and conditions and al 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.
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 High 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.
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 shall not be obliged to disclose or account to the customer or principal for any such amounts received or receivable by it.
39.1 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.
39.2 Notwithstanding anything to the contrary contained in these terms and conditions, delivery of the goods to the company or any of its agents is deemed to be delivery of those goods in pledge as security for all amounts payable from to time by the customer to the company from any cause whatsoever. If any agent or instructee of the company is in possession of the goods, that agent or instructee is deemed to possess the goods on behalf of the company for purposes of the company’s right of retention under that lien or pledge.
39.3 If any monies 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, after judgement and a court order authorising the sale has been obtained.
39.4 The customer shall not encumber, not allow the encumbrance of, the goods or any of it without the company’s prior consent.
39. The company’s lien and pledge shall be a first ranking encumbrance of and charge over the goods and no other security shall rank prior to the company’s pledge, lien or right of retention.
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 a foregoing, in respect of any liability whatsoever which may be incurred-
40.1 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, or owner of such goods by any person having an interest in such goods or by any other person whatsoever, and/or
40.2 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
40.3 to any carrier of the goods if the company is the consignor or consignee of the goods, and/or
40.4 in respect of any goods referred to in clause 18.
Notwithstanding any claim which the company may have against any party or participant, whether the instructing party, the customer, the owner or anyone else whomsoever for any amount due to the company under these terms and conditions, the customer shall also be liable to the company for the full payment of that amount.
41.1 Subject to the provisions of clause 41.2 and clause 42, 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-
41.1.1 any negligent act or omission or statement by the company or its servants, agents or nominees; and/or
41.1.2 any act or omission of the customer or agent of the customer with whom the company deals; and/or
41.1.3 any loss, damage or expense arising from or in any way connected with the marking, labelling, numbering, non-delivery or incorrect delivery of any goods; and/or
41.1.4 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
41.1.5 any loss, damage or expense arising from or in any way connected with any circumstance, cause or event beyond the reasonable control or the company, including but without limiting the generality of the aforesaid, strike, lock-out, stoppage or restraint of labour; and/or
41.1.6 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
41.1.7 loss or non-delivery of any separate package forming part of consignment or for loss from a package or and unpacked consignment or for damage or incorrect delivery; and/or
41.1.8 damage or injury suffered by the customer or any other person whatsoever arising out of any cause whatsoever as a result of the company’s execution or attempt execution or attempted execution of its obligations to the customer; and/or the customer’s requirements or mandate;
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 41.1.7 above, the company receives a written notice within 14 days after the end of the transit where the transit ends in the Republic of South Africa and within 21 days after the end of the transit where the transit ends at a place outside the Republic of South Africa.
41.2 Notwithstanding anything to the contrary contained in these trading terms and conditions, the company shall not be liable for any direct and consequential loss or damages arising from any act or omission or statement by the company, its agents, servants or nominees, whether negligent or otherwise.
42.1. In those cases where the company is liable to the customer in terms of clause 41.1, in no such case whatsoever shall any liability of the company, howsoever arising, exceed whichever is the least of the following respective amounts-
42.1.1 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;
42.1.2 the value of the goods declared for insurance purposes;
42.1.3 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.
42.2 If it is desired that the liability of the company in those cases where it is liable to the customer in terms of clause 41.1 should not be governed by the limits referred to in clause 41.1 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 42.1 shall apply.
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 its connection.
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 or written notice requiring it to do so then the customer shall be entitled to compel performance by the company or 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.
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 acknowledge 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.
46.1 Should there be any dispute of any nature whatsoever between the parties in regard to any aspect, matter of thing relating to these trading terms and conditions and whether or not the company has executed its obligation in terms of any agreement it has with the customer, then and in such event the customer shall nevertheless be obliged to perform its obligations in terms of any such agreement as though the company had performed properly and to the customer’s satisfaction.
46.2 The customer’s remedy, having performed its obligations as provided in clause 46.1 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.
46.3 Without affecting the generality of clause 46.2 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.
46.4 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.
Time is of the essence for the performance by the customer of all obligations owed to the company in terms of any agreement with it governed by these terms and conditions.
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 of full force and effect.
All notices under these terms and conditions must be given in writing and delivered by hand or sent by email of fax.
A certificate under the hand of any director or manager of the company (whose authorization and appointment as such need not be proved) to the customer or in respect of any fact, including but without limiting the generality of the afore going the fact that services were rendered and/or the goods delivered and/or the amount or rate of interest payable by the customer, shall be prima facie evidence of the customer’s indebtedness to the company and prima facie evidence of such fact, the rendering of such services, disbursement of-such monies or delivery of such goods or amount or rate of interest payable or accumulated.
(SEESA – CP – 2013)