GLOBAL LINK SOLUTIONS TERMS & CONDITIONS

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION
   • The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have a corresponding meaning namely:
     • “Authorities” shall mean any duly constituted legal or administrative person charged with the administration of any law;
     • “Conditions” means these standard trading conditions;
     • “Company’’ shall mean Global Link Solutions, a private company incorporated in accordance with relevant laws of the Republic of South Africa, bearing registration number 2024/582056/07, with registered address being No. 2 Carlow Road, Bonella, Durban, KwaZulu-Natal, 4091;
     • “Customer’’ means any person, whether an agent or a principal, at whose request or on whose behalf the company undertakes any business or provides any advice, information or service;
     • “Data Subject” has the meaning ascribed to it in Chapter 1 of POPI;
     • “Dangerous Goods” means goods, including without limitation radio-active materials, which are or may 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, or any goods defined as hazardous and/or dangerous in the Tariff or rules for carriage of Transnet Limited, the National Road Traffic Act, 93 of 1996 and/or SANS 10228, or classified as such in the IMDG Code or any other code or regulations of, or published by any Authorities;
     • “Effective Date” means the last date of signature of these Conditions;
     • “Force Majeure” means any circumstance which is beyond the reasonable control of a Party which is not caused by any default or act of commission or omission of such Party and is not avoidable by the exercise of reasonable effort or foresight by such Party which causes a delay or failure in the performance or observance of any obligation of such Party herein (excluding payment obligations). A Force Majeure Event shall include, without limiting the generality of the foregoing, strikes or labour or industrial disturbances, pandemics and epidemics, civil disturbances, acts orders, legislation, regulations or directives of any governmental or other public authorities, acts or public enemies, war, riots, sabotage, blockades, embargoes, lightning, earthquakes, fire, storms, hurricanes, floods, wash-outs, explosions, pandemics, epidemics, acts of God); 
     • “Goods’’ means any goods handled, transported, warehoused 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.

 

 

• “Insolvency Event” means the happening of any of the following events:
  • an order is made, or petition is presented for a Party to be wound up; or
  • a petition has been presented for an administration order in respect of a Party; or
  • an order is made appointing a liquidator or provisional liquidator in respect of a Party, or one of them is appointed, whether or not under an order; or
  • except to reconstruct or amalgamate while solvent, a Party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement, or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them; or
  • a Party resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent or is otherwise wound up or dissolved; or
  • a Party is insolvent or unable to pay its debts, or states that it is insolvent; or
  • a Party takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to a Party; or
  • a receiver, receiver and manager, business rescue practitioner, administrative receiver, administrator or a controller is appointed in respect of any part of the property of a Party
• “Law” means the common law, legislative enactments, regulations, international conventions and the directions or directives of any relevant body or Authority;
• “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;
• “Parties” shall mean the Company and the Customer collectively, and “Party” shall mean either one of them;
• Personal Information” has the meaning given to it in Chapter 1 of POPI;
• “POPI” means the Protection of Personal Information Act 4 of 2013, as amended from time to time, including any regulations and/or code of conduct made under the Act;
• “Privacy and Data Protection Conditions” means the 8 (eight) statutory prescribed conditions for the lawful Processing of Personal Information which is entered into a Record and such conditions are listed in Section 4(1) of POPI and are dealt with in detail in Part A of Chapter 3 of POPI;
• “Processing” has the meaning ascribed to it in Chapter 1 of POPI;
• “Record” has the meaning ascribed to it in Chapter 1 of POPI;
• “Responsible Party” has the meaning ascribed to it in Chapter 1 of POPI;
• “Services” shall mean the services provided or to be provided by the Company to the Customer, which services may include, but not be limited to, forwarding, clearing, consulting, information services, warehousing and/or the transport and distribution of Goods and any services allied thereto.

• Headings of clauses shall be deemed to have been included for purposes of convenience only and shall not modify or affect the interpretation of these Conditions.
• Unless inconsistent with the context, words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating to natural persons shall include associations of persons having corporate status by statute or common law.
• If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of these Conditions.
• In so far as the provisions of any written agreement between the Parties are inconsistent with these Conditions, the provisions of these Conditions shall prevail. In particular it is recorded that these Conditions will take precedence over any terms contained in the Customer’s standard trading terms or purchase orders.
• The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Conditions shall not apply.
• The rule which serves to restrict the meaning of general words to things or matters of the same kind as the preceding particular words (eiusdem generis) shall not apply, and whenever a term is followed by the word “including” which is then followed by specific examples, such examples shall not be construed as to limit the meaning of that term.
• These Conditions shall be interpreted and applied in accordance with South African law
• The expiry or termination of this Conditions shall not affect those provisions of this Conditions which provide that they will operate after any expiry or termination, or which notwithstanding that they may not expressly provide therefor, are intended to operate after any expiry or termination of this Conditions for whatsoever reason.

2. TERM
   • These Conditions shall come into effect on the Effective Date, and shall continue until the Services have been completed by the Company on behalf of the Customer, unless terminated earlier in accordance with clause 3 or otherwise in accordance with the terms of this Conditions.
   • Either Party may terminate these Conditions by giving no less than 30 (thirty) calendar days’ written notice to the other Party.
3. TERMINATION
   • Each Party shall have the right, without prejudice to its other rights or remedies provided hereunder, to terminate these Conditions:
     • by giving not less than 30 (thirty) calendar days written notice to the other party, to terminate for convenience;
     • immediately by giving written notice to the other Party if an Insolvency Event occurs in relation to the other Party; or
     • subject to such breach continuing as at the date of termination, by giving not less than 14 (fourteen) days’ written notice to the other Party if the other Party is in material breach of any of its obligations under these Conditions and either that breach is incapable of remedy or the other Party shall have failed to remedy that breach, to the reasonable satisfaction of the non-breaching Party, within 30 (thirty) days after receiving written notice requiring it to remedy that breach.

 

 

 

4. APPLICATION OF TRADING TERMS AND CONDITIONS
   • 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.
5. OWNER’S RISK
   • All handling, packing, loading, unloading, warehousing and transporting of Goods by or on behalf of or at the request of the Customer are effected at the sole risk of the Customer and/or the Owner, and the Customer indemnifies the Company accordingly.
6. APPLICABLE LEGISLATION
   • If the Company is obliged, in the execution of any of its duties and/or responsibilities to comply with the 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.
   • In addition thereto, in complying with the law, the Company shall not be deemed to have assumed any onus, obligation, responsibility or liability in favor of the Customer.
   • 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.
7. 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 an FBL is issued these 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.

 

 

8. 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.

 

9. COMPANY’S DISCRETION IN THE ABSENCE OF INSTRUCTIONS

In the absence of specific instructions given timeously in writing by the Customer to the Company:

• 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.
• 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.
• 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.

10. COMPANY’S GENERAL DISCRETION
    • 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.
    • 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 Companying 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.
11. INSURANCE
    • Where the Company agrees to do so, it shall endeavor 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 Companying respect thereof.
    • Insofar as the Company agrees to arrange insurance the Company acts solely as agent for and on behalf of the Customer.
    • If the Goods are transported, or are to be transported, by rail, it shall be the obligation of the Customer to instruct the Company prior to receipt of the Goods into its or the rail carrier’s custody or control, as to whether the Company is to accept the rail carrier’s standard terms or any offer of insurance of the Goods, on behalf of the Customer. In any event the Customer acknowledges that it is aware of the terms and conditions under which the rail carrier (currently Transnet, but which includes any successor thereof, or that entity operating under a new name) undertakes the rail carriage of containerized Goods, the terms and conditions of the insurance cover offered by the rail carrier and their limitations of liability in the event of such insurance cover not being accepted and under no circumstances whatsoever shall the Company be liable for any loss suffered by the Customer and howsoever caused, while the Goods are in the custody of the rail carrier.
12. 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:
      • make any declaration for the purpose of any statute, convention, or contract, as to the nature or value of any Goods or as to any special interest in delivery. In particular, the Company shall be under no obligation to make any declaration or to seek any special protection or cover from any carrier in respect of any Goods which are, or fall within the definition ascribed thereto by that body of dangerous Goods or other Goods which require special conditions of handling or storage;
      • arrange for any particular Goods to be carried, stored or handled separately from other Goods.

 

 

13. CUSTOMER’S UNDERTAKINGS
    • 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 Companying respect thereto, reasonable knowledge of all matters directly or indirectly relating thereto or arising therefrom, and the Customer undertakes to supply all pertinent information to the Company.
    • The Customer warrants that:
      • it is either the Owner or the authorized 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 Conditions;
      • in authorizing the Customer to enter into any contract with the Company and/or in accepting any document issued by the Companying 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 a foregoing, 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;
      • 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, without derogating from the generality of the aforegoing, any assessment or reassessment;
      • it will comply with such laws as may be applicable to it;
      • it is validated and accredited by the applicable civil aviation authority as a known consignor, unless it has informed the Company otherwise in writing;
      • all Goods will be properly, safely, 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 and dangers associated with the Goods involved and are capable of withstanding the normal hazards inherent in the implementation of such contract and will not cause the death of, or injury to, or illness of, any person, nor cause any loss of, or damage to, property;
      • save where the Company has been given and has accepted specific instructions to prepare and pack the Goods, it will ensure:
        • that the Goods have been prepared and packed in secure premises;
        • that the Goods have been handled by staff who have been subjected to background checks and have received job specific cargo security training as prescribed by law;
        • that the Goods have been protected from unlawful interference during preparation, storage and transportation;
        • that the Goods have been subjected to such security controls as may be prescribed by law; and
        • that the Goods have been sealed with seals of acceptable quality and of such type as may be prescribed by law.
      • 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;
        • that the Goods involved are suitable for carriage in or on the transport unit;
        • 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;
        • that it will provide the Companying writing with the verified gross mass of the transport unit, prior to it being loaded on board a ship.

 

14. 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 agreement in respect of particular Goods from the Customer, or if the Customer acts as an agent for a disclosed or undisclosed principal, as the Companying its absolute discretion deems fit.
15. COMPANYENTITLED TO ACT AS AGENT OR PRINCIPAL IN CONTRACTING
    • Unless otherwise agreed in writing, the Companying 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.
    • 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 or as a principal.
    • The Customer acknowledges that when the Company, as agent for and on behalf of the Customer, concludes any agreement with a third party, such agreement is concluded between the Customer and the third party.
    • 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:
      • carriage of Goods by any route or means or person;
      • storage, packing, transport, shipping, loading, unloading and/or handling of Goods by any person at any place whether on shore or afloat and for any length of time;
      • carriage or storage of Goods in break-bulk form in or on transport units as defined in clause 13 or with or without other Goods of whatsoever nature.

 

 

 

 

 

16. SUBCONTRACTING
    • 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.
    • 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 or awarded against the Company, take such action against the third party on the Customer’s behalf as the Customer may direct.
17. 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 Companion the terms and conditions, whether or not inconsistent with these 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.
18. GOODS REQUIRING SPECIAL ARRANGEMENTS
    • Except under special arrangements previously made in writing, the Company will not accept or deal with bullion, currency, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, plants or any Goods having special requirements as to storage, temperature, humidity or otherwise.
    • 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 Companying respect of the Goods referred to in this clause 18 shall be governed by the provisions of clauses 41 and 42.

 

19. GOODS REQUIRING PRIOR CONSENT OF THE COMPANY
    • The Customer shall obtain in advance the Company’s specific written consent to accept into its possession or control any Dangerous Goods.
    • The Customer warrants that such Dangerous 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 or of the Company and that the nature and characteristics of such Goods and all other data required by such laws, regulations or requirements will be prominently and clearly marked on the outside cover of such Goods.
    • If any such Dangerous Goods are delivered to the Company, such Dangerous Goods may for good reason as the Companying 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 the Dangerous Goods to the Company and/or out of the aforegoing.
    • The Customer furthermore warrants that any consignee in respect of Dangerous Goods will be authorized and/or qualified to uplift, receive and/or handle such Goods.
20. PERISHABLE GOODS
    • Without limiting or affecting any other terms of these 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:
      • such Goods have begun to deteriorate or are likely to deteriorate;
      • such Goods are insufficiently addressed or marked;
      • the Customer cannot be identified;
      • the Goods have not been collected or accepted by the Customer or any other person after the expiration of 14 (fourteen) calendar 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 Companying respect thereof shall be equivalent to delivery of such Goods.
    • Should any amount owing by the Customer to the Companying respect of any referred to in clause 20.1 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 (fourteen) calendar 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 Companying 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 Companying respect thereof, exceed the full amount of the Customer’s obligations to the Companying respect of such Goods, the Company shall be obliged to refund such excess to the Customer.
21. 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:
      • 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; and
      • The provisions of this clause 19 shall apply mutatis mutandis.

22. 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 Companying its absolute discretion, at the Customer’s expense
23. COLLECTION OF EXPENSES
    • 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.
    • 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.
24. 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 recognizable as belonging to the Customer unless and until it receives suitable instructions relating to those Goods together with all necessary documents.
25. EXAMINATION OF LANDED GOODS
    • Where it is necessary for an examination to be held or other action to be taken by the Companying 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.
    • 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.
    • The Company shall have the right, but shall not be obliged, to examine or cause to be examined any Goods, and to enquire into the correctness or sufficiency of information or documentation submitted in respect of such Goods and the Customer shall co-operate promptly and fully with any such examination or enquiry.
26. DUTIES, TAXES, IMPOSTS, LEVIES AND DEPOSITS
    • 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 or paid by the Companying connection therewith or arising thereout.
    • 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 favorable 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.
27. 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:
      • 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
      • 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 a reasonable time is for the purpose of clause 28.1. 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 28.1 and 28.2.
28. PAYMENT BY THE CUSTOMER
    • Unless otherwise specifically agreed by the Companying writing the Customer shall pay to the Companying 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.
    • All and any moneys received by the Company from the Customer shall be appropriated by the Companying 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.
    • Should any sum not be paid by the Customer to the Company when due, all other sums owed by the Customer to the Company shall immediately become due and payable.
29. 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.
30. RISK OF POSTED OR ELECTRONIC ITEMS
    • Notwithstanding any prior dealings between the Company and the Customer all documents, cash, cheques, bank drafts, transfers, payments or other remittances, sent to the Company through the post or made electronically shall be deemed not to have been received by the Company unless and until they are actually received by the company.
31. QUOTATIONS
    • 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.
    • 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 labor 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.
    • Where a fee is based on the weight of the Goods, the fee may be calculated, at the sole discretion of the company, according to the higher of actual or volumetric weight. The Company shall have the right to re-weigh and to re- measure any Goods and to correct any under-declaration of weight.
32. NO CLAIMS AGAINST COMPANYDIRECTORS AND EMPLOYEES
    • 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.

 

33. CUSTOMER’S 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 recognized by the Company as valid only if timeously given specifically in relation to a particular mater 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.
    • Notwithstanding any law to the contrary, the Company shall only be deemed to have received electronic data or messages to the extent that they been retrieved, processed and read by the addressee of the Company.
34. 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 authorized 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.
35. 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.
36. BENEFIT OF DISCOUNTS
    • The Company is entitled to the benefits of any discounts or preferential tariffs 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 or benefits received or receivable by it.
37. 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 (fourteen) calendar 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 net proceeds applied in or towards satisfaction of the indebtedness.
38. 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 Companying relation to any Goods and in particular, but without limitation of the aforegoing, in respect of any liability whatsoever which may be incurred:
      • 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
      • 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
      • to any carrier of the Goods if the Company is the consignor or consignee of the Goods; and/or
      • in respect of any Goods referred to in clause 19; and/or
      • in terms of any applicable law, as a result of the Company acting on behalf of the Customer; and/or
      • as a result of a breach of any warranty referred to in clause 13.

39. LIMITATION OF COMPANY’S LIABILITY
    • Subject also to the provisions of clause 40, 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, unless:
      • such claim arises from a grossly negligent act or grossly negligent omission on the part of the Company or its servants; and
      • if the claim relates to the loss of, damage to or delay in the handling of Goods, such claim in addition arises at a time when the Goods in question are in the actual custody of the Company and under its actual control.
    • 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 or advice by the Company, its agents, servants or nominees, whether negligent or otherwise.
40. MONETARY LIMITATION OF LIABILITY OF THE COMPANY
    • In those cases where the Company is liable to the Customer in terms of clause 39.1, or for any other reason, in no such case whatsoever shall any liability of the company, howsoever arising, exceed whichever is the least of the following respective amounts:
      • if applicable, 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;
      • if applicable, the value of the Goods declared for insurance purposes;
      • double the amount of the fees raised by the Company for its services in connection with the Goods, information, advice or other service provided by it, but excluding any amount payable to sub-contractors, agents and third parties.
    • If it is desired that the liability of the Company in those cases where it is liable to the Customer in terms of clause 39.1 should not be governed by the limits referred to in clause 39.1 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 40.1 shall apply.
    • If no fee is raised by the Company for the information, advice or service provided by it then, for the purposes of clause 40.1.3, the Company shall be deemed to have raised a fee equivalent to the fee that it would usually have raised for such information, advice or service or, failing this, an amount of R1 000.00 (one thousand Rand).
41. GENERAL AVERAGE
    • The Customer indemnifies and holds harmless the Companying 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 Companying this connection.
42. 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 authorized by written resolution of the board of directors of the Companying response to a written enquiry specifying accurately and in complete detail what information is required.
43. DISPUTES
    • If any dispute arises between the Company and Customer in relation to any matter pertaining to, or arising out of these Conditions, or arising out of the termination thereof, then such dispute shall, at the instance of any Party, be referred to arbitration by a single arbitrator, in accordance with the provisions of this clause 43.
      • The arbitration shall be held:
      • at Durban;
      • subject to the provisions of this clause 16, in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) rules relating to expedited arbitrations (“Rules”); and
      • as soon as is reasonably practicable in the circumstances and with a view to it being completed as soon as possible.
    • The arbitrator shall, be appointed by the President for the time being of AFSA or its successor.
    • The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than one is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
    • Subject to each Party’s rights of appeal in accordance with the Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any court of competent jurisdiction.
    • The provisions of this clause 43:
      • constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
      • are severable from the rest of these Conditions and shall remain in effect despite the termination of or invalidity for any reason of these Conditions; and
      • shall not preclude any Party from obtaining interim relief on an urgent basis from any court of competent jurisdiction pending the decision of the arbitrator.
    • 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.
    • 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.

 

 

44. DEFAULT & DEBT COLLECTION
    • The Company may charge interest at the maximum rate allowed by law, calculated on daily balance and compounded monthly in arrears on any amount not paid to the Company by the Customer on the due date.
    • If the Company institutes legal proceedings against the Customer to recover amounts due to the Company, the Customer shall be liable for all legal costs incurred by the Company on the scale as between attorney and own client, as well as collection commission and tracing agent’s fees, if any.
45. TIME FOR PERFORMANCE BY THE CUSTOMER
    • Time is of the essence for the performance by the Customer of all obligations owed to the Companying terms of any agreement with it governed by these Conditions.
46. CLAIMS
    • Any claim against the Company must be notified to the Companying writing within 30 (thirty) calendar days of the event giving rise to the claim, failing which it shall be deemed to have been extinguished for all purposes.
    • Any claim against the Company shall be extinguished for all purposes 365 (three hundred and sixty five) days after the event giving rise to the claim, unless prior to the expiry of the period a summons or other process instituting legal action has been served on the company.
47. FORCE MAJEURE
    • Neither Party shall be liable to the other for any consequences of delay in or failure to fulfil or perform its obligations under these Conditions if and to the extent such delay or failure is caused by a Force Majeure Event. For the avoidance of doubt, a lack of funds will not constitute a force majeure event.
    • Should any Force majeure Event arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) Business Days of such notice to negotiate in good faith alternative methods of fulfilling its obligations in terms of these Conditions, if any.
    • If a Party cannot perform its obligations or that performance is delayed by a Force Majeure Event for more than 20 (twenty) consecutive calendar days then on expiry of that 20 (twenty) day period, the other Party may at in its sole discretion terminate these Conditions forthwith by written notice. Without prejudice to any accrued claims, neither Party will have any claims against the other Party arising from or in connection with such termination.

 

48. JURISDICTION
    • Notwithstanding clause 43, the Parties agree that any urgent legal action or application proceedings arising out of or in connection with these Conditions may be brought in the KwaZulu-Natal High Court, Durban and irrevocably submit to the non-exclusive jurisdiction of such court. The Parties irrevocably waive any objection they may now or hereafter have that such action or proceeding has been brought in an inconvenient forum.
    • Nothing herein shall affect the right to serve process in any manner permitted by law. The submission to such jurisdiction shall not – and shall not be construed to – limit the right of the Company to take proceedings against the Customer in whatever other jurisdiction it shall consider appropriate nor shall the taking of proceedings in any one or more jurisdictions automatically preclude the taking of proceedings in any other jurisdiction whether concurrently or not.
    • These Conditions shall be governed by the laws of the Republic of South Africa without having regard to the rules of conflict of laws.
49. NOTICES
    • The Parties choose as their domicilia citandi et executandi for all purposes under these Conditions, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:

The Company:

Physical Address
Email Address
Contact Person

 

The Customer:

Physical Address
Email Address
Contact Person

 

• Any notice or communication required or permitted to be given in terms of these Conditions shall be valid and effective only if in writing, but it shall be competent to give notice by e-mail.
• Any Party may by notice to any other Party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that Party to another physical address where courier delivery occurs in the Republic of South Africa or its e-mail address, provided that the change shall become effective vis-à-vis that addressee on the 5^th (fifth) Business Day from the receipt of the notice by the addressee.
• Any notice to a Party:
  • delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the Business Day of delivery; or
  • sent by e-mail to its chosen e-mail address stipulated in clause 1, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
• Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

50. PROTECTION OF PERSONAL INFORMATION
    • The Parties shall fully comply with the statutory obligations contained in POPI, with which the Parties warrant that they are fully conversant with at the signature date, when Processing Personal Information obtained by the Responsible Party and such Personal Information is entered into a Record. Without limiting the generality of the aforesaid the Responsible Party shall ensure that the Privacy and Data Protection Conditions are strictly adhered to when Processing the Data Subject’s Personal Information.
    • The Parties hereby indemnify and hold each other harmless from any liability whatsoever arising from a Party’s failure to comply with its statutory obligations contained in POPI.

 

51. 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.
52. CO-OPERATION AND GOOD FAITH
    • The Parties shall co-operate with each other and do all such things as may be reasonably required of them in order to facilitate the implementation of these Conditions in accordance with its terms and objectives.
    • The Parties shall display good faith in their dealings with each other.
53. NATURE OF RELATIONSHIP
    • The Customer shall be an independent entity and these Conditions does not constitute the Parties as partners, joint venturers or, except as provided in these Conditions, agents of each other, and no Party may so represent itself in this manner.
    • Neither of the Parties shall have any authority whatsoever to make any statement, representation or commitment of any kind, or to take any action, that may be binding on the other Party, except as provided for in these Conditions or as authorised by the other Party.
54. THIRD-PARTY RIGHTS
    • No one other than a Party to these Conditions, their successors and permitted assignees, shall have any right to enforce any of its terms.
    • The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under these Conditions are not subject to the consent of any person that is not a party to these Conditions.
55. ASSIGNMENT AND NOVATION
    • Neither Party may assign and/or novate these Conditions, or any interest in these Conditions, in whole or in part, or any entitlement to monies under these Conditions without the prior written consent of the other Party.
56. WHOLE AGREEMENT, NO AMENDMENT
    • These Conditions constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
    • No amendment or consensual cancellation of this Conditions or any provision or term hereof or of this Conditions or other document issued or executed pursuant to or in terms of this Conditions and no settlement of any disputes arising under this Conditions and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Conditions or of any agreement or other document issued pursuant to or in terms of this Conditions shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation).  Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
    • No extension of time or waiver or relaxation of any of the provisions or terms of this Conditions, bill of exchange or other document issued or executed pursuant to or in terms of this Conditions, shall operate as an estoppel against any Party in respect of its rights under this Conditions, nor shall it operate so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Conditions.
    • To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
57. CO-OPERATION AND GOOD FAITH
    • The Parties shall co-operate with each other and do all such things as may be reasonably required of them in order to facilitate the implementation of this Conditions in accordance with its terms and objectives.
    • The Parties shall display good faith in their dealings with each oth