Standard Trading Terms and Conditions
1. DEFINITIONS
For the purpose of these terms and conditions (“Terms and Conditions”), unless the context is inconsistent with this clause, the following words shall have the following meanings:
1.1. “FATS” means Forwarding African Transport Services (Pty) Ltd (Registration Number 2010/012157/07) trading as FATS;
1.2. “the Customer” means:
1.2.1. the Person who instructs FATS to perform the services in terms of these Terms and Conditions; or
1.2.2. the Person who accepts FATS’ quotation; or
1.2.3. any Person who contracts with FATS;
1.3. “Contract” means an agreement entered into in writing or orally between FATS and the Customer which is subject to these Terms and Conditions;
1.4. “Dangerous Goods” includes hazardous Goods and Goods which, in the opinion of FATS, are dangerous and includes anything likely to, or which does in fact, cause any damage to
persons and property;
1.5. “Freight” means the price payable by the Customer to FATS as consideration for the carriage of Goods under a Contract;
1.6. “Goods” means any goods which are transported under a Contract;
1.7. “Law” includes the common law, and any applicable legislation or international convention;
1.8. “Parties” means FATS and the Customer;
1.9. “Person” shall have its ordinary meaning and includes juristic and natural persons;
1.10. “the Principal” means any person with whom FATS contracts to carry out Transportation under a Contract for and on behalf of the Customer;
1.11. “Transportation” means, without limiting the generality of this term, loading, unloading, off-loading, conveyance, packing (where necessary), storing and or safekeeping of any Goods and the acquiring of permits, authority and the like;
1.12. The use of the singular includes the plural, and vice versa (the other way around), and the use of one gender includes the other genders.
2. CAPACITY OF FATS AND APPLICABILITY OF THESE CONDITIONS
2.1. Despite anything to the contrary in these Terms and Conditions, FATS acts as agent of the Customer and nothing in these Terms and Conditions will be interpreted as FATS acting as in any other capacity with the Customer, unless FATS has, in fact, contracted with the Customer as principal and informed the Customer that it is acting as principal.
2.2. Despite anything to the contrary in these Terms and Conditions, FATS shall have no responsibility or liability for any act or omission of the Principal.
2.3. FATS shall, if and when suitably indemnified by the Customer against all costs claimed, including attorney and own client costs (with security furnished to the satisfaction of FATS’ attorney), take action against the Principal as the Customer may direct.
3. WHOLE OF CONTRACT
3.1. These Terms and Conditions together with any addendum to these Terms and Conditions shall govern the relationship between FATS and the Customer in each and every Contract between them.
3.2. No provision in any other document or provision agreed to orally by or on behalf of the Customer and FATS shall be interpreted as a variation of these Terms and Conditions, unless the provision is in writing and signed by a duly authorized representative of FATS.
3.3. No warranty or representation other than as is expressed in writing shall be of any force and effect against FATS unless the warranty or representation is contained in writing and signed by a duly authorized representative of FATS.
3.4. No conduct other than what is agreed to in writing and signed by a duly authorized representative of FATS shall be interpreted as a variation or novation of these Terms and Conditions or a waiver of FATS’ rights under these Terms and Conditions.
3.5. No amendment, variation or consensual cancellation of any Contract shall be of any force and effect unless such amendment, variation and/or consensual cancellation is reduced to writing and signed by a duly authorized representative of FATS.
4. APPLICATION OF TERMS AND CONDITIONS
Subject to clause 5, all and any business undertaken or advice, information or services provided by FATS, whether for consideration or not, is undertaken or provided on these Terms and Conditions.
5. APPLICABLE LEGISLATION
5.1. If FATS is obliged, in the carrying out of any of its duties and/or responsibilities to comply with any Law, then FATS, by complying with such Law, shall not be deemed to have waived or abandoned any of its rights in terms of these Terms and Conditions.
5.2. In complying with any Law, FATS shall not be deemed to have assumed any onus, obligation, responsibility, penalty or liability in favor of the Customer.
5.3. If any of the provisions of these Terms and Conditions is repugnant to or in conflict with any Law, then the conflicting provision shall be deemed to be amended and/or altered to conform with such Law and such amendment and/or alteration shall not in any way affect the validity of the remaining provisions of these Terms and Conditions.
6. OWNER’S RISK
Unless it is prohibited by or contrary to any Law, all handling, packing, loading, warehousing and Transportation of Goods by, or on behalf of, or at the request of FATS are effected at the sole risk of the Customer and/or the owner and the Customer indemnifies FATS against any and all risks arising from such handling, packing, loading, warehousing and Transportation of Goods.
7. CONDITIONS
FATS shall only be obliged to perform its obligations under these Terms and Conditions if:
7.1. FATS, in its sole discretion, has received sufficient notice of the Customer’s requirements to enable it to place the Transportation with the Principal to ensure that a suitable vehicle is available;
7.2. the necessary consent and statutory permits have been granted and remain in force; in the event where such consent or permits is refused or withdrawn for any reason, these Terms and Conditions shall terminate and no liability for damages or otherwise shall attach to FATS;
7.3. the Customer is not in breach of the Terms of Conditions or any other Contract;
7.4. FATS is satisfied as to the Customer’s solvency and ability to pay for the services to be rendered under these Terms and Conditions within the time and in the manner prescribed in these Terms and Conditions; and
7.5. at FATS’ sole discretion, it is not impossible, impractical or dangerous to continue to comply with its obligations by reason of riots, strikes, lockouts, labor disturbances or disputes, boycotts, economic sanctions, acts of state, industrial legislation, war, terrorism, civil commotion or disturbances, attacks upon its employees or vehicles, floods, rationing or non-availability of fuel, vehicle accident, breakdown in vehicle or equipment, commercial pressure, or any other cause beyond the reasonable control of the FATS.
8. SUSPENSION OF PERFORMANCE:
While any of the conditions referred to in clause 7 remain unfulfilled, FATS shall be entitled to refuse or suspend performance without being liable, and without prejudice to FATS’ rights to recover monies due to it in respect of services already performed by it and/or the Principal.
9. CUSTOMER’S UNDERTAKINGS
9.1. For all purposes of this clause 9 the Customer shall be deemed to have reasonable knowledge of all matters directly or indirectly relating to the Customer’s business, Goods and services to be rendered by FATS under any Contract, 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 FATS
9.2. The Customer warrants that it is:
9.2.1. either the owner; or
9.2.2. the authorized agent; or
9.2.3. the contractor of the owner;
With regard to any Goods in respect of which the Customer instructs FATS and that each such person is bound by these Terms and Conditions.
9.3. It is recorded that should the Customer perform any function as agent of the owner, sender or consignee, that person is bound by these Terms and Conditions for itself and its agents and for any parties on whose behalf it or its agents may act, and in particular, the owner, sender or consignee accepts that FATS shall have the right to enforce against them jointly and severally any liability of the Customer under these Terms and Conditions or to recover from them any sums to be paid by the Customer which upon proper demand have not been paid;
9.4. The Customer warrants that:
9.4.1. all information and instructions supplied or to be supplied by the Customer to FATS is and shall be accurate, true and correct, and in particular, the Customer shall be deemed to be bound by and warrants the accuracy of all descriptions, values and other particulars furnished to FATS for customs, consular and other purposes; and
9.4.2. the Customer will not withhold any necessary or relevant information and indemnifies FATS against all and any claims, losses, penalties, damages, expenses, including any assessment or reassessment of such descriptions and values and particulars furnished to FATS, and fines arising, as a result of a breach of clause 9.4.1 whether negligently or otherwise;
9.4.3. all Goods will be properly, adequately and appropriately prepared and packed, stowed, labelled and marked having regard, among other things, to the characteristics of Goods involved and are capable of withstanding the normal hazards inherent in the implementation of such Contract;
9.4.4. 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 (individually referred to as “the transport unit”), then except where FATS has been given and has accepted specific written instructions to load the transport unit:
9.4.4.1. that the transport unit has been properly and competently loaded; and
9.4.4.2. that Goods involved are suitable for carriage in or on the transport unit; and
9.4.4.3. that the transport unit is itself in a suitable condition to carry Goods loaded in the transport unit and complies with the requirements of all relevant transport authorities and carriers.
10. FATS ENTITLED TO ACT AS AGENT OR PRINCIPAL IN CONTRACTING
10.1. Unless otherwise agreed in writing, FATS in arranging the carriage, storage, packing or handling of Goods shall be entitled and is authorized to act either as agent for and on behalf of the Customer or as principal as FATS, in its absolute discretion, deems fit.
10.2. The offer and acceptance of a fixed price for the performance of any task shall not itself determine whether such task is to be arranged by FATS acting as agent for and on behalf of the Customer or as principal.
10.3. The Customer acknowledges that when FATS, 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.
10.4. Unless otherwise agreed in writing, FATS, when acting as agent for and on behalf of the Customer, shall be entitled to enter into any agreement it reasonably deems necessary for the fulfilment of the Customer’s instructions, including, without limitation, agreements for the:
10.4.1. carriage of Goods by any route or means or Person;
10.4.2. 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;
10.4.3. carriage or storage of Goods in break-bulk form or on a transport unit or with or without other Goods of any nature.
11. TERMS AND CONDITIONS OF AGENTS AND SUBCONTRACTORS
11.1. Despite anything to the contrary in these Terms and Conditions the Customer agrees that all Goods shall be dealt with by FATS on the terms and conditions stipulated by the carriers, warehousemen, government departments, and all other parties (whether or not acting as agents or subcontractors to FATS) into whose possession or custody Goods may pass, or subject to whose authority they may at any time be whether or not inconsistent with these Terms and Conditions.
11.2. FATS is entitled to contract with other parties, whether as agent or principal, at rates different to those it charges the Customer and shall not be obliged to account for such differential to the Customer who accepts and consents to this.
12. GOODS REQUIRING PRIOR CONSENT OF FATS
12.1. The Customer shall obtain in advance FATS’ written consent to accept into its possession or Control or into the possession or control of any of its agents or employees any Goods, including radioactive materials, which may be or may become dangerous, toxic, inflammable or noxious or which by their nature may injure, damage, taint or contaminate, or in any way adversely affect any Person, Goods or property, including Goods likely to harbor or attract vermin or other pests.
12.2. The Customer warrants that Goods referred to in clause 12.1 above, or the case, crate, box, drum canister, tank, flat, pallet, package or other holder or covering of such Goods will comply with any applicable laws, regulations or requirement of any authority or carrier and that the nature and characteristics of such Goods and all other data required by such laws, regulations or requirements will be prominently and clearly marked on the outside cover of such Goods in the prescribed manner.
12.3. If any Goods are delivered to FATS, whether or not in breach of the provisions of this clause 12, such Goods may for good reason, as FATS in its sole discretion deems necessary, including, 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 FATS being liable for any compensation to the Customer or any other party, and without prejudice to (affecting) FATS’ rights to recover its charges and/or fees including the costs of such destruction, disposal, abandonment or rendering harmless or other dealing with such Goods.
12.4. The Customer indemnifies FATS against all loss, liability or damage caused to FATS as a result of the delivery of Goods to FATS and/or out of losses incurred by FATS under this clause 12.
13. 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 FATS shall be entitled to store Goods or any part of Goods at no risk to FATS and at the expense of the Customer;
14. WAREHOUSING
Pending forwarding and/or delivery by or on behalf of FATS, Goods may be warehoused or otherwise held at any place as determined by FATS in its sole discretion, including FATS’ own warehouse or yard, at the Customer’s expense.
15. EXAMINATION OF LANDED GOODS
15.1. Where it is necessary for an examination to be held or other action to be taken by FATS in respect of any discrepancy in Goods which are landed or discharged from any vessel, aircraft, vehicle, or transport unit, no responsibility shall attach to FATS for any failure:
15.1.1. to hold such examination; or
15.1.2. to take any other action;
unless FATS has been timeously advised by the landing or discharge agent that such Goods have been landed and that such a discrepancy exists.
15.2. FATS will not be responsible for the examination or counting of any Goods received by FATS where such Goods are bundled, palletized or packed in any manner such that their number cannot be quickly and easily counted (“bundled Goods”).
15.3. Should FATS undertake to count bundled Goods, FATS shall incur no liability in respect of any error or inaccuracy as a result of ordinary negligence on the part of FATS or otherwise.
15.4. FATS shall be entitled to levy a charge on the Customer for the counting of bundled Goods.
16. DUTIES, TAXES, IMPORTS, LEVIES AND DEPOSITS
16.1. 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:
16.1.1. any duties, taxes, imposts (compulsory payments), levies, deposits or out-lays levied by or payable to the authorities, intermediaries or other parties at any port or place for or in connection with Goods and whether at the time of entry and/or at any subsequent time (“port charges”); and
16.1.2. for any payments, fines, penalties, expenses, loss or damage incurred or sustained by FATS, or the Customer or owner of Goods, in connection with the port charges.
16.2. The Customer shall timeously advise FATS, in writing, of any tariff headings required for clearing Goods through customs, failing which the Customer
undertakes to indemnify FATS and hold it harmless where costs are incurred because FATS chose an incorrect tariff heading on the Customer’s behalf.
16.3. FATS shall incur no liability if there is a change in the rate of duty, cargo duties, Freight, railage or cartage or any other tariff, before or after the performance by FATS, or 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.
17. PRESCRIPTION OF CLAIMS
Without limitation and prejudice to FATS, the Customer shall notify FATS of any loss, damage, complaint or claim within 24 (twenty four) hours from the time of off-loading or, in the case of late delivery or non-delivery of Goods, within 24 (twenty four) hours from the scheduled time of off-loading and shall confirm such notification in writing to be received by FATS within 72 (seventy two) hours of such off-loading or scheduled time of off-loading as the case may be, failing which, any claim arising from such failure shall lapse and be unenforceable.
18. PAYMENT BY THE CUSTOMER
18.1. Unless otherwise specifically agreed by FATS in writing, the Customer shall pay to FATS in cash immediately upon presentation of an account all sums due to FATS and payments shall not be withheld or deferred on account of any claim or counterclaim which the Customer may allege exists between the Customer and FATS.
18.2. All and any monies received by FATS from the Customer shall be appropriated by FATS in its sole and absolute discretion in respect of any undisputed indebtedness owing by the Customer to FATS, despite that the Customer might, when making payment, seek to appropriate the payment so made to any particular debt or portion of a debt.
19. ABNORMAL LOADS
Where in FATS’ sole discretion the carrying of Goods by the Principal on behalf of the Customer constitute an abnormal load, the carrying of such Goods shall be subject to the following terms and conditions:
19.1. Adequate notice shall be given to FATS to enable it to prepare drawings of such loads and route surveys for local authorities (and, where applicable, to Eskom and post office authorities) (“relevant authorities”) for their respective consent.
19.2. The Customer shall bear the cost of:
19.2.1. obtaining the consent from the relevant authorities;
19.2.2. removing and replacing any obstacles during loading, off- loading or in route;
19.2.3. raising and reinstating overhead wires;
19.2.4. switching the electric power off and on;
19.2.5. traffic escorts required;
19.2.6. pavement and obstruction fees levied by the authorities concerned; and
19.2.7. any other additional service incidental to and necessary for the carriage of such loads;
where such costs have not been included in the Freight quote by the Principal.
19.3. It is recorded that the hours and speed of such Transportation are subject to regulation by the authorities concerned.
19.4. FATS shall not (without limiting the generality of the provisions of clauses 6 and 7) be liable for any damage to property caused by the passage of such loads and/or the Principal’s vehicle over or through such property and the Customer indemnifies FATS against all liability and claims by any Person arising from such damage.
19.5. Any liability for damage to property under this clause 19 and any consequential loss or damage arising from such damage shall be borne by the Customer.
19.6. All legal costs incurred by FATS in resisting any claims under this clause 19, on the scale as between attorney and own client, shall be borne by the Customer.
20. STIPULATION FOR THE BENEFIT OF THE BROKER AND EMPLOYEES AND AGENTS
The stipulations contained in clauses 6, 7 and 19.4 are for the benefit of FATS and or any Person for whose acts and/or omissions FATS is liable and of any Person who shall be entitled at any time before judgment be given against them to accept the benefit of any such stipulations.
21. QUOTATIONS
21.1. FATS shall be entitled at any time by notice to the Customer to cancel or resile from any quotation or Contract in circumstances where it becomes impracticable or uneconomical for FATS to carry out the Contract at the quoted rate in FATS’ sole discretion and the Customer shall have no claim against FATS for any loss that the Customer might incur as a result of FATS cancelling or resiling from the quotation or Contract.
21.2. Without in any way limiting the provisions of clause 21.1, all quotations and Contracts 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 FATS to third parties including, without limitation, Freight, surcharges, insurance premiums, equipment rental and labour costs.
21.3. Any revision of rates as specified under clause 21.2 will be proportionate to the change in the currency exchange rate or the increase in such amounts payable. Any such increase shall, be determined by the auditors of FATS or any other auditors nominated by FATS, who, in making such determination, shall act as experts and not as arbitrators and whose decision shall be final and binding on the Parties.
21.4. Subject to clauses 19, 21.2, 21.3, 22 and 24.2, quotations by FATS shall remain valid for the period as prescribed by the quotation under the heading “validity”, if not accepted in writing during such period, the quotation shall automatically lapse.
22. QUOTATION DATA
22.1. Quotations are based, among other things, on quantities, densities, dimensions, mass, properties, other technical data, available loading and off-loading hours and other information supplied by the Customer and accepted by FATS.
22.2. Any variance in the factors on which a quotation is based shall entitle FATS to:
22.2.1. require the Freight quote to be adjusted to take into account such variance; or
22.2.2. to suspend performance; or
22.2.3. cancel the Contract;
without incurring any liability and in the event of any such cancellation reserving to itself the right to claim from the Customer such damages as FATS may have suffered.
22.3. Quotations are subject to:
22.3.1. work being carried out by the methods and the route to be decided by FATS without interruption, hindrance or postponement;
22.3.2. the availability of the Principal’s vehicles and/or staff on the dates required;
22.3.3. all part loads being conveyed and delivered at FATS’ and the Principal’s convenience;
22.3.4. any increase in FATS’ and the Principal’s costs coming into force after the date of the quotation over which FATS has no control will be for the Customer’s account;
22.3.5. any delay due to interruption, hindrance of whatsoever nature, local traffic, municipal regulation or non-production over which FATS has no control will be charged to the Customer;
22.3.6. additional charges will be levied where the volumes increase and the Customer will be charged for such additional charges on a proportional basis;
22.3.7. any charge increases should there be a change of route due to reasons beyond FATS and/or the Principal’s control;
22.3.8. any postponement or cancellation by the Customer which will entitle FATS to make a charge to cover the losses and/or expenses incurred by FATS arising from such postponement or cancellation; and
22.3.9. Where stoppages or delays are caused by circumstances beyond the control of FATS and/or the Principal or are such that FATS or the Principal could not reasonably foresee or prevent the cause of such stoppage or delay, FATS shall have the right to increase the charge specified.
23. FREIGHT
23.1. The Freight payable to FATS by the Customer for the Transportation of Goods by the Principal shall be the Freight agreed between the Parties or shall be calculated on the rate agreed between the Parties, as the case may be.
23.2. The Freight shall be subject to variation (change) as provided in clauses 19, 21, 22, 24 and 24.2.
24. ESCALATION
24.1. Subject to clause 22 and provided FATS performs within the validity date of the quotation, the Freight quoted in such quotation shall remain fixed.
24.2. If, however, FATS perform after such validity period, the Freight initially quoted shall be subject to escalation based on variations (changes) in costs, including the cost of shipping lines, rate of exchange, fuel price index, toll fees and over-border permits.
25. ADDITIONAL CHARGES
Subject to clause 22 above and in addition to the Freight, FATS shall be entitled to levy an additional charge at its usual rate, alternatively a reasonable rate in the event of:
25.1. the circumstances envisaged in clauses 31, 32 ,33, 37 38, 39 and 40 occurring; or
25.2. the time taken to load or off-load a vehicle exceeding the maximum time allowed in terms of clauses 32 and 33; or
25.3. FATS being obliged, due to circumstances beyond FATS’ control, to use routes different from those it intended to use at the time of entering into the Contract.
26. PAYMENT
26.1. Payment shall be received in full, free of any commission, exchange, brokerage or deduction within 7 (seven) days from proof of delivery by FATS, which may appropriate all monies paid entirely within its sole and unfettered discretion to any outstanding and unpaid amounts.
26.2. The Customer shall not be entitled to deduct from or set-off against such payments any claims which the Customer may have against FATS arising from any cause.
26.3. Despite that FATS may agree to collect and/or receive payment from a third party, the Customer is personally bound by the provisions of the Contract, and the Customer guarantees payment of the Freight and other charges by such third party to FATS.
26.4. There will be no valid discharge of the obligation to pay FATS by the Customer unless and until payment in full has been made to FATS.
26.5. FATS is entitled to levy an interest charge against the Customer at a rate of 3.5% (three point five per cent) per month on all amounts which are outstanding and are unpaid by the Customer.
27. LOADING AND OFF-LOADING
Where the Customer is not the consignor and/or consignee, the Customer’s employees and agents shall be deemed to be agents of the Customer and to be authorized to act on the Customer’s behalf in the situations completed in clauses 29 to 37 inclusive.
28. CONDITION OF GOODS
28.1. The onus of establishing the condition of Goods at the time of delivery to FATS and/or the Principal shall at all times be on the Customer.
28.2. No delivery note, receipt or the document given at such time by FATS and/or the Principal to the consignor shall constitute proof of the condition of Goods, except to the extent that any specific record in relation to such condition has been recorded on such document by FATS and/or the Principal.
29. RESPONSIBILITY FOR LOADING AND OFF-LOADING
29.1. The Customer shall deliver Goods onto the vehicle nominated by FATS and shall take delivery of Goods from such vehicle, and shall be fully responsible for the loading and off-loading of such Goods onto or from the vehicle.
29.2. FATS’ employees may assist with the loading and off-loading of such Goods onto or from the vehicle in so far as such assistance is customary and practicable, but such assistance shall be rendered at the sole risk of the Customer without any liability for any loss or damage arising from loading and off-loading of such Goods onto or from the vehicle attaching to FATS.
30. LOADING AND OFF-LOADING
FACILITIES The Customer warrants that:
30.1. it will provide or procure the provision of safe and adequate labour and equipment for loading and off-loading, and safe, convenient and adequate loading and off-loading points and access to or from any such loading and off- loading points;
30.2. it will ensure that loading and off-loading will be possible at the agreed points during such hours and days as the Parties have agreed; and
30.3. if any Goods require special appliances for loading or unloading, those appliances will be available at the point of collection and place of delivery of the consignment.
31. DELAYS AND DAMAGES
In the event of the vehicle being delayed or damaged due to the Customer’s failure to comply with the provisions of clauses 29 and 30, the Customer shall be liable for additional charges at the usual rate charged for the vehicle at the time, alternatively a reasonable rate, and/or such damages as the case may be.
32. LOADING TIME
32.1. The maximum loading time allowed to the Customer shall be that which is set out in FATS’ quotation unless otherwise agreed in writing between the Parties.
32.2. Loading time shall be deemed to commence at the time when the vehicle to be loaded arrives at the entrance to the property on which the loading point is suitable.
33. OFF-LOADING TIME
The provisions of clause 32 (loading time) shall apply equally to off-loading time.
34. DELIVERY DETAILS
After completion of loading the Customer shall verify the correctness of all the details contained in the Customer’s delivery documents.
35. DELIVERY AND OFF-LOADING INSTRUCTIONS
The Customer shall ensure:
35.1. prior to Goods being off-loaded, that Goods to be off-loaded are the precise Goods which should be off-loaded under the Contract;
35.2. that during off-loading, clear and precise off-loading and delivery instructions are given;
35.3. that Goods are off-loaded at the correct place and/or off-loading point; and
35.4. that immediately after off-loading, Goods off-loaded comprise the correct quantity and are in good order and condition.
36. COMPLETION OF OFF-LOADING
When off-loading is completed the Customer shall inspect the vehicle or vehicles, as the case may be, to verify that the complete consignment has been off-loaded.
37. FAILURE BY THE CUSTOMER TO TAKE DELIVERY
37.1. FATS shall be entitled to store or abandon Goods at its discretion if:
37.1.1. the Customer fails or is unable or refuses to take delivery of the whole or any part of Goods at the agreed off-loading point, or at the agreed off- loading time; or
37.1.2. it is not possible or practicable to off-load Goods within 12 (twelve) hours after arrival of such Goods at such off-loading point (through no fault of FATS); and
37.1.3. an acceptable alternative delivery instruction is not timeously received from the Customer.
37.2. In the events set out in clause 37.1 the Customer shall be liable to pay any additional charges incurred and shall have no claim against FATS for any act or omission arising from such additional charges or abandonment contemplated in clause 37.1.
38. DEMURRAGE (LAYTIME)
38.1. FATS and/or the Principal shall not be liable for demurrage or storage charges of any nature levied by third parties and where paid by FATS and/or the Principal such charges shall be refunded to FATS and/or the Principal by the Customer on demand.
38.2. The Customer appoints FATS and/or the Principal as its agent in its place and stead to contract for the storage of such Goods upon such terms and conditions as FATS and/or the Principal may, in its discretion, elect and without any liability attaching to FATS and/or the Principal to attend to such storage.
39. DANGEROUS GOODS
39.1. FATS is not obliged to contract for the carrying of Dangerous Goods on behalf of the Customer.
39.2. In the event of FATS agreeing in writing to place with the Principal the Customer’s Dangerous Goods, the Customer shall:
39.2.1. disclose fully the nature and properties of such Dangerous Goods to FATS;
39.2.2. prior to loading, give FATS special detailed instructions to enable FATS to place such Dangerous Goods for the proper safety and handling as per any applicable Law; and
39.2.3. comply with all regulations governing the loading, off-loading, storing and carriage of such Dangerous Goods.
39.3. FATS shall be entitled immediately and without prior notice to the Customer to discharge, or dispose of such Dangerous Goods, in any manner it sees fit if:
39.3.1. the Customer or consignor fails to disclose the dangerous nature of any Dangerous Goods; or
39.3.2. any Dangerous Goods become a danger to a Person or property, whether or not the dangerous nature of the Dangerous Goods has been disclosed.
39.4. FATS shall not be liable for any loss or damage arising from a discharge or disposal of Dangerous Goods as set out in clause 39.3.
39.5. FATS shall furthermore be entitled to recover from the Customer the Freight in respect of any such discharge or disposal of Dangerous Goods as set out in clause 39.3, despite the non-delivery of such Dangerous Goods together with any expenses incurred in discharging or disposing of the Dangerous Goods.
39.6. The Customer:
39.6.1. shall be liable for all loss and/or damage suffered by FATS or any other Person/s caused by Dangerous Goods whether or not the dangerous nature of the Dangerous Goods has been disclosed; and
39.6.2. indemnifies FATS against all liability and all claims by any Person/s arising from such loss and/or damage.
40. CANCELLATION OF REQUEST FOR VEHICLE
The Customer shall be entitled to cancel a request for a vehicle to carry out a particular service in terms of a Contract provided that the Customer gives FATS no less than 48 (forty eight) hours’ notice of cancellation (Saturday, Sunday and Public Holidays excluded), prior to the time of dispatch of the vehicle and the service scheduled by FATS, failing which the Customer shall be liable to pay FATS’ usual, alternatively reasonable additional charges up to a maximum period of 48 (forty eight) hours
41. BREACH
If FATS breaches any of these Terms and Conditions or any Contract between FATS and the Customer and fails to remedy such breach within 30 (thirty) days of the date of receipt of written notice requiring FATS to do so then the Customer shall be entitled to compel performance by FATS of the obligations.
42. WARRANTIES AND REPRESENTATIONS MADE BY FATS
42.1. FATS makes no warranties and representations to the Customer except those which are specifically provided in these Terms and Conditions or in the Contract or as notified in writing by FATS to the Customer.
42.2. The Customer acknowledges that FATS 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 FATS, 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 FATS in response to a written enquiry specifying accurately and in complete detail what information is required.
43. DISPUTES
43.1. Should there be any dispute of any nature between the Parties in regard to any aspect, matter or thing relating to or arising from these Terms and Conditions and whether or not FATS has executed its obligations in terms of any Contract, then in such event the Customer shall nevertheless be obliged to perform its obligations in terms of any such Contract as though FATS has performed properly and to the Customer’s satisfaction.
43.2. The Customer’s remedy, having performed its obligations as provided in clause
43.1, shall be limited to an action against FATS for repayment of either the whole or portion of the amount which the Customer alleges constitutes an overpayment.
43.3. Without affecting the generality of clauses 43.1 and 43.2 the Customer shall not be entitled to withhold payment of any amount by reason of any dispute with FATS whether in relation to FATS’ performance in terms of any Contract, or lack of performance or otherwise, after which payment the Customer’s rights of action against FATS in terms of this clause 43 can be enforced.
43.4. Until the required 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 FATS which releases such rights and makes them available to the Customer in respect of any claim that it may have against FATS.
43.5. In any dispute between FATS and the Customer FATS shall be deemed to have performed its obligations in a proper and workmanlike manner and strictly in accordance with any Contract, until such time as the Customer proves the contrary.
44. LIEN
44.1. 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 monies due in respect of such Goods or for any other monies due to FATS from the Customer, sender, owner, consignee, importer or the holder of the bill of lading or their agents, if and whether or not relating to Goods over which the lien is exercised.
44.2. If any monies due to FATS are not paid within 14 (fourteen) days after the notice has been given to the Person from whom the monies are due, such Goods or documents being detained may be sold by auction or otherwise or in some other way be disposed of for value at the sole discretion of FATS and at the expense of such Person, and the net proceeds applied in or towards satisfaction of such indebtedness.
45. INDEMNITY BY THE CUSTOMER
Without prejudice to any of FATS’ rights and securities under these Terms and Conditions, the Customer indemnifies and holds FATS harmless against all liabilities, damages, costs and expenses incurred or suffered by FATS arising directly or indirectly by or on behalf of or at the instance of FATS in relation to any Goods and in particular, in respect of any liability which may be incurred:
45.1. to any hauler, carrier, warehouseman or other Person at any time involved with such Goods or 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; and/or
45.2. to any owner or consignee of such Goods who is not the Customer of FATS where FATS performs the service of a deconsolidation agent, or any other service; and/or
45.3. to any carrier of Goods if FATS is the consignor or consignee of Goods; and/or
45.4. in respect of any claims or losses beyond FATS’ control, incurred in relation to Goods referred to in clause 12.
46. LIMITATION OF FATS’ LIABILITY
46.1. Subject to the provisions of clause 46.3 and clause 47, FATS shall not be liable for any claim of any nature (whether in contract or in delict) and whether for damages or otherwise, however arising including:
46.2. any negligent act or omission or statement by FATS or its employees, agents or nominees, and/or
46.2.1. any act or omission of the Customer or agent of the Customer with whom FATS deals with; and/or
46.2.2. any loss, damage or expense arising from or in any way connected with the marking, labelling, numbering, or non-delivery of any Goods; and/or
46.2.3. 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
46.2.4. any loss, damage or expense arising from or any way connected with any circumstance, cause or event beyond the reasonable control of FATS, including, strike, lock-out, stoppage or restraint of labour; and/or
46.2.5. damages arising from loss of market or caused by a delay in forwarding or in transit or failure to carry out any instructions given to FATS; and/or
46.2.6. loss or non-delivery of any separate package forming part of a consignment or loss from a package or an unpacked consignment or for damage or incorrect delivery; and/or
46.2.7. damage or injury suffered by the Customer or any Person as a result of FATS’ execution or attempted execution of its obligations to the Customer and/or the Customer’s requirements or mandate; unless
46.2.7.1. such claim arises from a negligent act or omission on the part of FATS or its employees; and
46.2.7.2. such claim arises at a time when Goods in question are in the actual custody of FATS and under its actual control; and
46.2.7.3. in the instance provided in clause 46.2.6 above FATS receives a written notice within –
46.2.7.3.1. 5 (five) days after the end of the transit where the transit ends in the Republic of South Africa; or
46.2.7.3.2. 14 (fourteen) days after the end of the transit where the transit ends at a place outside the Republic of South Africa.
46.3. Despite anything to the contrary in these Terms and Conditions, FATS shall not be liable for any indirect and consequential loss arising from any act or omission or statement by FATS, its agents, employees or nominees, whether negligent or otherwise.
47. MONETARY LIMITATION OF LIABILITY OF FATS
47.1. In those cases where FATS is liable to the Customer in terms of clause 46.1, in no such case shall any liability of FATS, exceed whichever is the least of the following respective amounts:
47.1.1. the value of Goods evidenced by the relevant documentation or declared by the Customer for customs purposes or for any purpose connected with their Transportation;
47.1.2. the value of Goods declared for insurance purposes;
47.1.3. double the amount of the fees raised by FATS for its services in connection with Goods, but excluding any amount payable to sub- contractors, agents and third parties.
47.2. If it is desired that the liability of FATS in those cases where it is liable to the Customer under clause 46.1 should not be governed by the limits referred to in clause 46.1, written notice that the liability of FATS to the Customer should not be limited under clause 46.1 (“liability notice”) must be received by FATS before any Goods or documents are entrusted to, or delivered to, or handed into the control of FATS (or its agents or sub-contractors), together with a statement of the value of Goods.
47.3. Upon receipt of such liability notice, FATS 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 liability notice, in which case it will be entitled to effect (take out) special insurance to cover its maximum liability and the party giving the liability notice shall be deemed, by so doing, to have agreed and undertaken to pay FATS for such insurance. If FATS does not so agree, the limits referred to in clause 46.1 shall apply.
48. GENERAL CLAIMS
48.1. The Customer indemnifies and holds FATS harmless in respect of any claims of a general nature which may be made against FATS; and
48.2. The Customer shall provide such security as may be required by FATS in this connection within three (3) days of a written demand given to the Customer by FATS.
49. TIME FOR PERFORMANCE BY THE CUSTOMER
Time is of the essence for the performance by the Customer of all obligations owed to FATS in terms of any Contract or under these Terms and Conditions.
50. SEVERABILITY
If any provision of these Terms and Conditions is unenforceable, then FATS shall be entitled to elect (which election may be made at any time) that such provision shall be severed (removed) from the remaining provisions of these Terms and Conditions which shall not be affected and shall remain in full force and effect.
51. GENERAL
51.1. FATS may cede, transfer or assign any or all of its rights and/or obligations under a Contract and/or these Terms and Conditions.
51.2. The Principal may sub-contract without notice, but shall continue to remain liable for the due performance of its obligations under the Contract. These Terms and Conditions shall apply equally to any service rendered by the sub-contractor.
51.3. The Parties consent to the jurisdiction of any magistrate’s court having jurisdiction over the Customer should FATS in its sole and unfettered discretion elect to institute any action arising out of a Contract or under these Terms and Conditions against the Customer in such court, despite that FATS’ claim may exceed the ordinary jurisdiction of such court. FATS may in its discretion institute action in any other court of competent jurisdiction.
51.4. All Contracts shall be interpreted and governed by the laws of the Republic of South Africa in their entirety and shall be deemed to have been entered into in the Republic of South Africa.
51.5. The head notes to the various clauses in these Terms and Conditions are for reference purposes only and do not affect the interpretation of the individual clauses.
51.6. No act, omission, course of dealing, leniency, delay or indulgence by FATS in enforcing any of the provisions of these Terms and Conditions or any of its rights under these Terms and Conditions, shall prejudice or affect the rights and remedies of FATS under these Terms and Conditions and no such matter shall be treated as any evidence of a waiver of FATS’ rights under the Terms or Conditions.
51.7. FATS shall at all times and without notice be entitled to insist on the strict application of these Terms and Conditions, and on the strict enforcement of these Terms and Conditions against the Customer.
51.8. The Customer selects as its domicile citandi executandi (place of notice) for all purposes of these Terms and Conditions its principal place of business as reflected on its invoices, delivery notes and letter heads;
51.9. FATS selects as its domicilium citandi executandi (place of notice) for all purposes of these Terms and Conditions its principal place of business.