STANDARD TERMS AND CONDITIONS OF TRADING
OF
LASHRITE CC
(Reg No: 1994/011102/23)
(“the company”)
1. STANDARD TERMS AND CONDITIONS OF TRADING
These standard Terms and Conditions of Trading shall apply to all contracts entered into by the company on or after 1 January 2010 with any person hereinafter referred to as the customer and shall supersede all previous standard trading terms and conditions of the company. If there is any conflict between these terms and conditions and any terms and conditions of the customer these terms and conditions shall prevail.
2. SCOPE
The services to be rendered, the goods and equipment to be supplied and the time and manner in which such services, goods and equipment are to be provided shall be agreed between the parties and confirmed by fax or email and in the absence of such confirmation shall be so rendered and provided in accordance with the norm for the particular port, cargo type and berth. The time, unless otherwise stated as above, is to be Transnet Limited hours which are twenty-four hours per day, seven days per week, or as amended from time to time.
3. RATES AND CHARGES
3.1
All applicable rates shall be the rates agreed by the company with the customer orally and confirmed by the purchase order, fax or email. Should the rates not have been agreed between the parties then the applicable rates shall be those that have been quoted to the customer by the company. All rates quoted include lashing and material supply unless specifically requested to use customer’s own material.
3.2
The rates referred to in 3.1 are in respect of sound cargoes of an ordinary nature to be handled in such manner as is the standard practice at the applicable port under normal circumstances.
4. ADDITIONAL RATES
In addition to the rates referred to in paragraph 3 above the company shall charge the following additional rates:-
4.1
Should Cargo be lashed and secured by the company and then have to be repacked, extra charges will be applicable and rates can be verbally agreed by the company with the customer and then confirmed by fax or email. If it is shown that it is the fault of the company that the repacking must occur, the company shall be liable for the additional costs. However, if the repacking is ordered by the customer and there is no fault on the part of the company, the customer shall bear the additional costs.
4.2
Should Cargo require extra lashing by the company other than standard, extra charges will be applicable and rates can be verbally agreed by the company with the customer and then confirmed by fax, purchase order or email.
5. INCREASE IN RATES
The rates shall be increased proportionately if the services to be rendered, or the goods and equipment to be supplied, or the time when the manner by which such services, goods and equipment are to be provided, are varied in any way:
5.1
by any additional charges which the company agrees to incur and which are not quoted or agreed;
5.2
by any increases in rates which directly or indirectly affect the services, goods or equipment to be provided hereunder by reason of any general increase in the wages payable by the company (whether in terms of an agreement between the company and any trade union or not) or any factor beyond the control of the company including without limitation, alterations in working hours, statutory cost increases, value added tax or other overheads or charges. The rates shall as from the date of such increase be increased by an additional charge based on the ratio which such increases bear to the company’s total costs. A certificate by the auditors of the company (who shall act as experts and not arbitrators) stating only the reason for such increase in general terms and the amount of such additional charge shall be conclusive and binding upon the parties.
6. TRANSNET LIMITED CHARGES
6.1
All charges of Transnet Limited, if incurred in respect of crane hires, shore labour, overtime and standby charges and the like shall be an additional charge payable by the customer to the company, if the additional work extends beyond what is required in the ordinary course of carrying out the requested services.
6.2
All other costs, charges and disbursements not specifically stated to be borne by the company under these standard terms and conditions of trading and which are incurred in connection with the services, goods and equipment to be provided hereunder shall be for the account of the customer and shall be payable on demand, or as the parties may agree between them.
7. PAYMENT
7.1
The terms of payment are as per agreement between the company and customer – either COD, 7day after completion or 30 days after date of statement. In dealing with the customer, it is agreed that the policy of the Customer is 30 days from date of statement. In the event of a dispute regarding a tax invoice, the customer shall pay the undisputed portion in accordance with the provisions of this agreement. The parties shall use their best endeavours to resolve all payment disputes as soon as possible, but in no event later than 7 (seven) business days after the raising of such dispute.
8. GOODS AND EQUIPMENT
8.1
The company shall only supply such goods and equipment as are regularly used in accordance with standard practice under normal circumstances. In the event that additional or modified goods and equipment are required, adequate notice shall be given to the company and the company shall be reimbursed in terms of paragraph 5.1, for any additional expenses incurred. The company shall be notified timeously of the unusual nature of any cargo which requires special precautions.
8.2
All derricks, winches, cranes and lighting (all in good order and condition with adequate power to operate same) shall be provided by the customer to the company free of charge for the purposes hereunder and, unless otherwise agreed in writing by the company, the company shall not be responsible for the rigging of any vessel’s appliance.
9. PERFORMANCE
9.1
The company or the customer shall be held liable under this Agreement in all circumstances where it has been negligent, reckless, and/or fraudulent or where it has exercised willful default in the performance of its obligations or rendering of its services.
Whilst the company shall only supply such goods to meet all times and dates for performance quoted by it, the company shall do so when it is ready and the company, its servants and representatives shall not be liable for any loss or damage of whatsoever nature and howsoever arising occasioned by delays in performance, to the extent that there is no negligence or wilful misconduct on the part of the company. The company shall not be liable for any loss or damage caused to vessels or cargoes when required by the Master of vessel or the customer or other person to work in adverse weather conditions or other similar unfavourable working conditions and shall be indemnified in respect of any such loss or damage as set out in paragraph 15. In the event of a possible delay, the company shall inform the customer thereof and obtain further instructions.
9.2
The customer warrants and undertakes that it is bound by all times and dates for performance and accordingly warrants and undertakes that all cargoes shall be ready for loading or unloading, all necessary documentation shall be correctly and timeously prepared, and safe and adequate access, loading and unloading facilities to cargoes and vessels shall be provided.
9.3
The parties shall ensure that all laws including but not limited to International Conventions relating to safety, security and the environment, the Merchant Shipping Act, 57 of 1951 as amended and its regulations and the Occupational Health and Safety Act, 85 of 1993 and its regulations and any other requirements which may be applicable to any vessel or cargo are complied with and the parties hereby indemnifies and holds the other party, its servants and representatives harmless against any liability of whatsoever nature and howsoever arising that they may suffer by reason of such non-compliance by the defaulting party.
10. FORCE MAJEURE
Performance by the company or the customer hereunder may be excused, suspended or delayed due to any cause of whatsoever nature which is beyond the control of the parties and which which precludes the effective performance by the party of any obligations they have in terms hereof and without derogating from the generality of the aforegoing including any act of god, vis major, causus fortuitus, damnum fatale, inherent defect (which inherent defect is not due to the fault of either party and falls beyond their control), strike, lock out, differences with workmen, act of government, war, riot civil disobedience, fire, flood and accident. The party who cannot perform based on the Force Majeuere event shall notify the customer in writing without delay of such occurrence as well as the cessation thereof. If any such occurrence continues for more than 15 (FIFTEEN) days, either party may cancel the balance of the contract or any part thereof by giving written notice to the other party.
11. THIRD PARTIES
11.1
The company reserves the right to use representatives such as sub-contractors and agents in connection with the provision of any service, goods and equipment hereunder. These terms and conditions shall apply, mutaais mutandis, to the services of such subcontractor. The Company shall inform the customer should it utilize third parties or subcontractors to carry out the services.
11.2
All indemnities, benefits, rights and limitations of liability (both as to cause and amount) which accrue to the company hereunder shall extend and apply to all employees, agent, sub-contractors or other representatives of the company which may be accepted by them.
12. AGENTS
12.1
Any agent entering into a contract with the company is deemed to have warranted and undertaken that it has the authority to act on behalf of the customer and to bind the customer hereunder.
12.2
Notwithstanding anything else contained in these terms and conditions or any obligation of any other party to the company which arises therefrom the parties are liable in respect of all the obligations incurred in terms of this contract.
13. RISK
13.1
Unless specific written instructions by the customer are received timeously by the company, the company may determine in its absolute discretion the manner of performance.
13.2
All services, goods and equipment are provided hereunder entirely at the customer’s risk. To the extent that there is no negligence or willful misconduct on the part of the company, the company, its servants and representatives shall not be liable for any loss, or damage of whatsoever nature and howsoever arising (including without limitation consequential or indirect loss or damage due to delays or destruction of goods or equipment or any other cause) which may be suffered by the customer or any third party in respect of such services, goods and equipment.
13.3
No responsibility or liability shall rest with the company or customer, as they case may be, to the other party, its servants or representatives if any services, goods or equipment are not in accordance with any law or regulation or in breach of third party rights and the parties warrant and undertake that the vessels and cargoes in respect of which such services, goods and equipment are to be provided do not violate, infringe or contravene any law or regulation or rights of third parties and the customer indemnifies and holds the company, its servants and representatives harmless against any loss or damage of whatsoever nature and howsoever arising that they may suffer by reason of any such violation, infringement, contravention or omission.
14. LIMITATION OF LIABILITY AND INDEMNITY
14.1
To the extent that there is no negligence, gross negligence or willful misconduct on the part of the company, the company, shall not be liable for any harm, loss, costs, expenses, damage, injury or claim of whatsoever nature which may be suffered by the customer in respect of the services, goods and the equipment to be provided hereunder by the company and arising out of any cause whatsoever (including without limitation the loading or discharge of cargo, the unseaworthiness or unfitness of any vessel, ship, craft, cargo, conveyance or place) and whether contractual, delictual or otherwise.
14.2
Any claim or demand that may be made against the company, its servants or representatives hereunder must be notified to the company in writing within the time periods set out in applicable prescription laws relating the type of claim.
14.3
Neither party shall under any circumstances whatsoever be liable for any consequential or indirect loss or damage (including without limitation demurrage or any other claim arising out of the delay of any vessel).
15. BREACH
In the event of either party committing a breach or failure by the company or the customer to comply with any of its obligations in terms of this Agreement (material or otherwise) shall entitle the aggrieved party to give written notice to the defaulting party specifying the nature of the breach..Such notice shall require the defaulting party to rectify the breach insofar as rectification is possible.
Failure to rectify a breach within 7 (seven) days from date of the notice pursuant to clause above shall entitle the aggrieved party without prejudice to any of its other rights in terms of this Agreement or in law:
to terminate this agreement forthwith upon written notice to the defaulting party and to recover such damages as it has or may have sustained; or
at its sole discretion engage a third party to perform the services at the cost of the company; or
compel performance by the defaulting party in terms of its obligations that it has defaulted on in terms of this agreement.
APPLICABLE LAW
This agreement shall be governed by and construed under the laws of the Republic of South Africa and any claim or dispute in terms of this agreement shall be determined by the courts of the Republic of South Africa to the exclusion of the courts of any other country.
16. NO WAIVER
16.1
No variation, modification or waiver of any provision hereof, or consent to any departure herefrom, shall in any way be of any force or effect unless confirmed in writing and signed by duly authorised representatives of each of the parties, and no person other than an executive director of the company shall be authorised by the company for any such purpose; and then any such variation, modification, waiver or consent shall be effective only in the specific instance and for the purpose and to the extent for which made or given.
16.2
The waiver (whether expressed or implied) by the company of any breach of the terms or conditions hereof by the customer shall not prejudice any remedy of the company in respect of any continuing or other breach of the terms and conditions hereof.
17. LEGAL PROCEEDINGS
Notwithstanding anything to the contrary herein contained, any claim against the company or the customer, or their servants or representatives for loss or damage to cargo shall become prescribed unless proceedings have been instituted in terms of the applicable prescription laws and regulations in force.
18. DOMICILIUM
18.1
The parties hereby choose the addresses as their domicilla citandi et executandi for all purposes of and in connection with this agreement at their principal places of businesses or registered offices. Where the customer is represented by an agent the customer chooses as its domicillium citandi et executandi for all purposes of and in connection with this agreement the principal place of businesses or registered office of the customer or its agent.
18.2
All notices, demands or communications intended for a party shall be made or given at such parties domicillium for the time being, provided that the company shall be entitled to use any one of the addresses chosen as the customers domicillium in terms of paragraph 19.1.
18.3
In notice sent by either party to the other party shall, unless proven to the contrary, be deemed to be received:
18.3.1
on the same day if delivered by hand;
18.3.2
on the same day if sent by telefax or e-mail;
18.3.3
on the seventh day after posting if sent by prepaid registered mail or airmail as the case may be.
18.4
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 domicillium citandi et executandi.
19. SEVERABILITY
If any clause on these terms and conditions should be invalid, unenforceable or illegal, then the remaining terms and provisions of this agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these terms and conditions.