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Standard Trading Terms and Conditions
1. INTERPRETATION In these Terms and Conditions, unless clearly inconsistent with or otherwise indicated by the context: "Agreement" shall mean the Order read with these Terms and Conditions; “Broker” means the professional marine insurance broker appointed by TO from time to time; Business day" means any day of the week excluding Saturdays, Sundays and/or public holidays in the Republic of South Africa; “Clearing and Forwarding fees” shall mean the fees charged by TO to the Customer for Clearing and Forwarding Services rendered by TO to the Customer; "Clearing and Forwarding Services" means such services as may from time to time be required by the Customer to be rendered by TO and shall include, without limitation, the undertaking or arranging the carriage of goods by air, sea, inland waterway, rail and/or road; and the Storage, loading, unloading, packing, unpacking, consolidation, de-consolidation, collection, delivery and/or other handling of goods; and performing all such other activities and duties in connection with the aforegoing functions as may be necessary; “Cargo supervision fee” means the service fee charged by TO to supervise cargo operations on behalf of the Customer; “Customer" means any person, whether as an agent or principal, at whose request or on whose behalf TO undertakes any business or provides any advice, information or service or who places an Order for the provision of Clearing and Forwarding Services by TO, irrespective of whether the Order is placed by the person for whom Clearing and Forwarding Services are to be rendered, or by such person's employees, servants or agents and includes the shipper, the charterer, the consignee and/or the owner of the goods; “Dangerous Goods” shall mean 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 by any entity or any code or regulations of, or published by any applicable authorities; “Delivery date” means the estimated date of delivery of the Goods; “Facility fee” means the fee charged to cover the costs of disbursing incurred by TO on behalf of the Customer; “FIATA” means the International Federation of Freight Forwarders Association; “Finance fee” means the fee charged to cover the costs of financing incurred by TO on behalf of the Customer "Goods" means any goods handled, transported or dealt with by or on behalf of or at the instance of TO or which comes under the control of TO 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, machinery or equipment and/or related accessories used in connection with or in relation to any such goods required for TO's performance of the Clearing and Forwarding Services; "Order" shall mean any order, whether verbal or in writing, received by TO from the Customer its agents, representatives, servants or employees, for the provision of Clearing and Forwarding Services, which order has been accepted by TO and which order is governed by these Terms and Conditions; “Owner” shall mean the owner of the Goods to which any business concluded under these Terms and Conditions relates to, any person acting on their behalf and any other person who is or may have or acquire any interest, financial or otherwise, therein; "Parties" means the Customer and TO and "Party" means either of them as the context indicates; "Prime Rate" shall mean the prime rate of interest quoted publicly by Standard Bank of South Africa Limited from time to time, which rate may be proved by a certificate signed by any officer of that bank, whose appointment and authority it shall not be necessary to prove, and which certificate shall constitute prima facie proof of the contents thereof; “Statutory Authority” means any entity, body or organisation set up by law which is authorised to enact legislation on behalf of the relevant country; “Standard tariff” means TO’s predetermined fees applicable to all services rendered by it, as revised annually and/or amended from time to time; "Supplier" shall mean any person with whom TO transacts any business for purposes of rendering the Clearing and Forwarding Services to the Customer, and shall include, but not be limited to: ship chandlers, vendors of all types of Goods, repairers, suppliers of Goods and services of whatsoever nature, other ships' agents or brokers, importers and exporters, and port and other authorities in the Republic of South Africa; "Terms and Conditions" shall mean the terms and conditions recorded herein; "TO" shall mean Trade Ocean Shipping Services (Proprietary) Limited (registration number 2006/023770/07) a private company with limited liability, duly incorporated in accordance with the company laws of the Republic of South Africa; Where applicable, the provisions of 1.1 shall impose substantive obligations on the Parties as provided in the provision concerned. In these Terms and Conditions words and expressions importing the masculine gender shall include the feminine and neuter genders and visa versa; the singular shall include the plural and visa versa, and natural persons shall include artificial persons and visa versa. The clause headings in these Terms and Conditions have been inserted for convenience only and shall not be taken into account in its interpretation. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause. No provision of these Terms and Conditions shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having, or being deemed to have, structured or drafted such provision. The eiusdem generis rule shall not apply and whenever the term “including” is used followed by specific examples, such examples shall not be construed so as to limit the meaning of that term. When these Terms and Conditions prescribe any number of days, such days must be reckoned exclusively of the first and inclusively of the last day. If the last day falls on a day that is not a business day, it will be deemed to fall on the next business day. These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa and the Customer consents to the jurisdiction of the High Court. APPOINTMENT The Customer hereby appoints TO to act as its agent in the Republic of South Africa for purposes of performing the Clearing and Forwarding Services, and TO hereby accepts such appointment, on the Terms and Conditions contained herein. The Order and these Terms and Conditions constitute a binding agreement between the Customer and TO, and this Agreement shall terminate upon both parties having discharged all their obligations in terms of this Agreement, unless otherwise provided for in terms hereof. The Customer accepts and agrees to be bound by these Terms and Conditions on placing an Order with TO for the Clearing and Forwarding Services. SCOPE OF TO’s AUTHORITY TO shall provide such Clearing and Forwarding Services as are required by the Customer in terms of the Order and TO may provide such additional Clearing and Forwarding Services as TO in its sole and absolute discretion deems necessary, expedient and in the interests of the Customer. All Clearing and Forwarding Services provided by TO as contemplated by 3.1, and the terms and conditions upon which such Clearing and Forwarding Services are provided, shall, at all times, be deemed to have been specifically authorised and approved by the Customer. The Customer's instructions to TO shall be precise, unambiguous and comprehensive in all respects. Instructions given by the Customer to TO shall be recognised by TO as valid only if given timeously and in writing. Oral, standing and general instructions and instructions which are not given timeously, even if such instructions are received by TO without comment, shall not, in any way, be binding upon TO, provided that TO may act on such instructions as TO, in its sole and absolute discretion, deems fit. Notwithstanding anything to the contrary contained in these Terms and Conditions, if at any time TO considers it to be in the Customer's interests, or in the public interest, to depart from any of the Customer's instructions (or any part thereof), TO shall be entitled, insofar as such departure is reasonable, to depart therefrom and shall not incur any liability in consequence of doing so. TO shall be entitled to engage the services of a Supplier to perform the Clearing and Forwarding Services (or any part thereof) and any such Supplier shall be deemed to be an independent contractor appointed by the Customer, and not a servant of TO. DURATION The agreement recorded in these Terms and Conditions shall commence on the date of acceptance of the Order by TO and shall, unless terminated earlier in accordance with the provisions of 2.2, 40 or 42, endure indefinitely. REMUNERATION OF TO Fees The Customer shall pay to TO the Clearing and Forwarding fees (and/or Facility fees and/or Finance fees and/or Cargo Supervision fees, whichever is applicable) as set out in TO’s Standard Tariff (as amended from time to time) or otherwise agreed between TO and the Customer, for the Clearing and Forwarding Services rendered by TO. In the event of there being no written confirmation as to the Clearing and Forwarding fees to be charged by TO, or in the event of a particular Clearing and Forwarding Service not being provided for in these Terms and Conditions or otherwise, the Customer shall pay to TO the fees contained in TO’s Standard Tariff, as amended from time to time. The Customer shall be liable for, and shall pay to TO, all costs and expenses incurred by TO, including the fees referred to in 5.1.1, in providing the Clearing and Forwarding Services at the request or on the instruction of the Customer itself, the office of the Customer or its agents, nominees, representatives or servants, howsoever communicated to TO and notwithstanding the fact that any such persons may have exceeded their authority in requesting or instructing the provision of the Clearing and Forwarding Services. The Customer shall reimburse TO for all costs and expenses incurred by TO in respect of the receipt of currency from the Customer, or the remittance of currency to, or on behalf of, the Customer. TO shall be entitled to withhold performance of the Clearing and Forwarding Services for as long as the Customer is in default of the provisions of these Terms and Conditions. Disbursements TO shall not be obliged to make any disbursement whatsoever on behalf of the Customer until such time as TO has been paid all amounts then due by the Customer to TO in respect of the provision of the Clearing and Forwarding Services by TO; and TO has received sufficient funds for purposes of paying the particular disbursement, and shall not be in default of its obligations by failing to make such payment.