STANDARD TRADING TERMS AND CONDITIONS. 1.1 In these conditions the following words shall have the following meanings:

Transcription

1 STANDARD TRADING TERMS AND CONDITIONS 1. DEFINITIONS 1.1 In these conditions the following words shall have the following meanings: Abnormal Goods goods which by reason for their nature, weight (mass), dimensions or otherwise require special preparations to be made or unusual or special care, treatment or precautions to be taken for the storage, transport or movement thereof or such goods which the Company in its sole discretion regards as abnormal; Additional Services any services rendered by the Company to the Customer, over and above the Services, or any action taken by the Company in the circumstances described in clause 7.1; Company in respect of Transport Services, SEWCO TRADING CC trading as Freight24 Reg. No. Ck 2007/034951/23 or in respect of Warehousing Services, CORAL REEF CHARTERS CC, Reg. No. Ck 1990/035324/23 or otherwise either of the aforementioned Companies or any business or firm controlled or owned by either of the aforementioned Companies; these Conditions these Standard Trading Terms and Conditions, including the Customer Application and any Suretyship attached hereto; Consignee the consignee or any party to which the Goods are delivered in terms of the Instructions; Consignor the consignor or any party from which Goods are collected in terms of the Instructions; Contract of Carriage any contract for the carriage or transportation of the Goods, whether evidenced by bills of lading, way bills or otherwise; Container any container, transportable tank, flat or pallet used to consolidate goods and constructed to ISO standards or recommendations or those of a similar recognised classification society; Customer the party listed in the Customer Application or any person at whose request or on whose behalf the Company undertakes any Services, including that person s principal, servants or agents; Customer Application the Customer Application completed by the Customer and submitted to the Company and to which these Terms and Conditions may be attached;

2 Dangerous Goods hazardous goods and goods which, in the opinion of the Company are likely to cause any injury or damage whatsoever to persons or property, including without limitation goods susceptible to vermin or pests; Delivery Note a delivery note, issued by the Company, setting out the details of the delivery, including without limitation, the Consignor s and Consignee s address (being the collection and delivery addresses), the time of dispatch and delivery, the quantity and condition of the Goods received, Container details, vehicle and trailer details and any other specific details required by the Company; the Warehouse means the warehouse owned by the Company [ CORAL REEF CHARTERS CC], situated at No. 2 Grunter Gully, Bayhead, Durban Goods any goods stored or transported hereunder or otherwise coming under the control of the Company, on behalf of the Customer and shall include Containers in which the Goods are packed, packaging, other coverings and equipment not supplied by the Company; Goods Received Note the written notification signed by or on behalf of the Customer and the Company on delivery to it of any Goods for Warehousing Services, in a form acceptable to the Company which shall set out the following information; the Customer details, the rates and charges, the Customer reference, the vessel details, description of the type, quality and condition of the Goods and any shortages or damage to the Goods; Instructions the written instructions given to the Company by the Customer, setting out the details of the Services required including without limitation, those set out in the Delivery Note, as described in clause 4; Legal Requirements all laws (whether national, local or municipal), bylaws, regulations, policies, procedures or requirements of any license, permit, convention for any applicable authority; the Services the Transport and/or Warehousing Services rendered by the Company to the Customer in terms of these Conditions and the written instructions, accepted by the Company in terms of clause 4.1; Sub-contractor any person with whom the Company contracts, whether as agent of the Customer or as principal, to render any Service, and including the Sub-contractor's servants and agents; Transport Services the Services that relate exclusively to transporting the Goods;

3 Warehousing Services the Services that relate exclusively to warehousing the Goods. 1.2 Headings of clauses are inserted for the purpose of convenience only and shall be ignored in the interpretation of these Conditions. 1.3 Unless inconsistent with the context, words signifying any one gender shall include the other words signifying the singular shall include the plural and vice versa and words signifying natural persons shall include artificial persons and vice versa. 2. APPLICATION 2.1 All business undertaken or advice, information or Services rendered by the Company, whether gratuitous or not, is undertaken subject to these Conditions. 2.2 No other standard terms or conditions, whether contained in the Customer ' s documentation or otherwise, shall be binding on the Company. 2.3 No variation of any of these Conditions, including this clause, shall be binding upon the Company unless it is specifically referred to in writing and signed by a director of the Company, duly authorised to do so. 3. DELIVERY AND RISK 3.1 The Goods shall be deemed to have been received by the Company for Transport Services where the Goods have been packed, secured and loaded onto the Company s vehicle or that of its agent, at the collection point designated in the Instructions, and the Delivery Notice has been signed by both the Consignor and the Company. 3.2 The Goods shall be deemed to have been received by the Company for Warehousing Services when the Goods have passed through the entrance of the Warehouse and a Goods Received Note has been signed by the Company and the Party delivering the Goods on behalf of the Customer. 3.3 An acknowledgment of receipt of the Goods by the Company shall not constitute an acknowledgment or admission in regard to the state, condition or quality of the Goods, nor as to the correctness of any statement on the relevant Goods Receipt Note or Delivery Note or any information received in respect of the Goods. 3.4 In the case of Transport Services, the Goods shall be deemed to have been received by the Customer/Consignee when: the Goods pass through the entrance of the premises of the Consignee listed in the Instructions; or a Delivery Note has been signed by a representative of the

4 Customer/Consignee; whichever is the earlier. 3.5 In the case of Warehousing Services, the Goods shall be deemed to have been received by the Customer/Consignee when: the Goods are made available for collection by the Company, on the date and at the time of collection set out in the Instructions; or a written dispatch note, in a form acceptable to the Company, has been signed by a representative of the Customer/Consignee; whichever is the earlier. 4. INSTRUCTIONS AND INFORMATION 4.1 The Customer shall timeously provide the Company with the Instructions, in a form acceptable to the Company, setting out the details of the Services required of the Company, including without limitation: the dates and times of collection and delivery, where applicable; the collection and delivery points; the names and other relevant details of the Consignee and Consignor; any information required in order to comply with clauses 12 and 13 (if any); a description of the Goods, including without limitation, weight, quality, dimensions, quantity and condition; any relevant Container details, including without limitation the Container and seal numbers; the details required by the Goods Received Note and Delivery Note; any other information relating to the Goods, which the Company will require in order to render the Services in terms of these Conditions, the Instructions and all Legal Requirements. 4.2 The Instructions in clause 4.1 shall only be binding on the Company, if accepted in writing by the Company, either by fax or to the contact details set out on the Customer Application. The Company shall be entitled to act on any verbal instructions received by the Company but not obliged to do so until such instructions have been confirmed in writing. 4.3 In all dealings with any Customer, the Customer warrants, and the Company

5 shall be entitled to rely upon the accuracy and completeness of any Instructions and other information given to it by the Customer, without further investigation. 4.4 The Company shall be entitled at any time, to require the Customer to furnish further information relating to the Goods or to any other subject matter of the business between them and shall be entitled to postpone performance of any obligation or Services in terms hereof, until such information is received in writing. 4.5 The Customer warrants the accuracy of all descriptions, values, weights, dimensions and other information given to the Company for customs, consular, haulage or any other purposes and indemnifies the Company against any cost, expense, loss, damage, fines, penalties or claims by any person arising out of or in connection with any inaccuracy in and/or non-disclosure of any such description, value, weights, dimensions or other information. 4.6 The Company shall not be liable for any claim, cost, expense, loss or damage suffered by the Customer or any third party as a result of the Company's implementation of any Instructions, whether written or otherwise. The Customer indemnifies the Company against any claim, cost, expense, loss or damage, including fines, taxes, penalties or claims by third parties, which the Company may suffer as a result of implementing those Instructions, and where such amounts indemnified against are paid by the Company, they shall be refunded to the Company by the Customer, immediately on demand, without prejudice to any claim for damages that the Company may have. 5. CARRIAGE 6. THE SERVICES If the Company carries any Goods (including Containers), it does so subject to these Conditions only and expressly not as a bailee, depositee or common or public carrier, whether for reward or gratuitously. 6.1 The Company shall not be obliged to provide any Service not specified in the Instructions accepted by it in terms of clause 4.2, provided that it shall be entitled (but not obliged) to perform any Additional Services. 6.2 In rendering the Services, the Company shall not be obliged to follow any Instructions unless those Instructions are given in writing and in time for the Company to have an adequate opportunity, in the Company's opinion, to execute them. 6.3 Unless otherwise agreed in writing by the Company, time is not of the essence. Nevertheless, the Company shall use all reasonable endeavors to ensure that such times and dates set out in the Instructions are adhered to, but cannot guarantee such performance.

6 6.4 Even if it has already accepted an Instruction to do so, the Company shall not be obliged to provide the Services in respect of any Goods which appear to have been damaged or to be unsafe for the Services. 6.5 Unless it is specifically agreed to in writing by the Company, the Company shall not be obliged to make any declaration for the purpose of any law, as to the nature of any Goods or the contents of any Container dealt with by the Company. Should the Company give such declaration, it does so on the basis of clause 4.5 and In respect of loading and unloading of the Goods: the Company shall only be obliged to: secure all Goods onto the vehicle once the Goods have been loaded onto the vehicle; unload any Container from the vehicle should it be required to in terms of the instructions; subject to clause 6.6.1, the Customer shall carry out all loading and unloading including without limitation: ensuring that all break bulk Goods are suitably packaged and loaded onto any vehicle; ensuring that any bulk Goods are loaded onto any vehicle; ensuring that all Containerized Goods are suitably packaged and secured into the Container and the Container is loaded onto any vehicle; unloading all bulk and break bulk Goods from any vehicle; and unpacking any Goods from any Container. 6.7 The Customer shall ensure that the Consignee's and the Consignor's premises are suitable for the handling of Containers and the Goods, that semi-trailers are parked on flat, hard surfaces and that the Company is sufficient written notice of any weight or height restrictions at those premises, in order to ensure that the Company is able to perform the Services in terms of the Instructions. 7. THE ADDITIONAL SERVICES 7.1 The Company may provide Additional Services, whether or not it has received Instructions to do so, in the following circumstances:

7 7.1.1 the Company believes that it is in the interest of the Customer or any other person to provide such Additional Services and if it is unable to timeously obtain Instructions in that regard; or the Company, in its sole discretion believes it is in the interests of preserving life or property or averting any danger to person or property; the Company is compelled to do so by a competent authority; it becomes necessary, pending Instructions from the Customer or in order for the Company to comply with its obligations in terms of these Conditions; any Services are rendered futile; there is any delay in the execution of the Instructions, for any reason, including without limitation as a result of any act or omission of the Customer; without limiting clause 7.1 and clause 3, the Customer, the Consignee or their agents do not take delivery of the Goods at the agreed delivery or collection time and/or place in terms of the Instructions; 7.2 In the event that the Company is entitled to perform the Additional Services in terms of clause 7.1, it shall be entitled to: store the Goods to which Additional Services relate at such place and on such terms as the Company deems fit, without notice to the Customer; where possible, deliver the Goods as per the original Instructions, which Goods shall be deemed delivered in terms of clause 3.3, in respect of Transport Services from the time they pass though the entrance of the premises of the Consignee or in respect of Warehousing Services, from the time that they are made available for collection by the Company; or sell or dispose of the Goods on 14 (fourteen) days written notice to the Customer that the Goods could not be delivered in terms of the Instructions or immediately without notice to any party should the Company believe, in its opinion, that the Goods will imminently perish, deteriorate or alter in any manner that may be reasonably expected to cause harm to any person or property; at the risk and expense of the Customer, which expenses shall include without limitation the expenses incurred by the Company in attempting to make delivery or any other costs incurred in the transport, warehousing and the handling of the Goods.

8 8. INSURANCE 8.1 The Company has no obligation to take out and maintain any insurance in relation to the Goods or the Services. 8.2 Notwithstanding clause 8.1, should the Company agree in writing to place any insurance cover, it shall endeavor to do so timeously. Such insurance shall be at the expense of the Customer and shall be subject to such exceptions and conditions as may be imposed by the insurance company taking the risk and the Company shall not be obliged to obtain separate cover for any risk so excluded. 8.3 Unless otherwise agreed to in writing, the Company shall not be under any obligation to obtain separate insurance in respect of any Goods transported and/or warehoused but may insure any Goods agreed upon in terms of clause 8.2 under any open or general policy held by the Company from time to time. 8.4 Insofar as the Company agrees to arrange insurance, the Company acts solely as agent for and on behalf of the Customer, which warrants that it has the authority of the owner of the Goods, or the party who has the insurable interest in the Goods. 8.5 Should any insurer dispute its liability in terms of any insurance policy effected by the Company, the Customer concerned shall have recourse against such insurance company only and the Company shall not have any responsibility or liability whatsoever in relation thereto, notwithstanding that the premium paid on such policy may differ from the amount paid by the Customer to the Company in respect thereof. 8.6 Notwithstanding anything to the contrary herein contained, the Company shall in no circumstance be liable for any consequences or any failure to obtain any insurance cover or any appropriate insurance cover, or otherwise, and the liability of the Company in respect of any claim brought against the Company arising out of or in connection with the provisions of this clause 8, shall be regulated and determined in accordance with the provisions of clause 17 and Notwithstanding the provisions of 8.1, the Company may in its sole discretion taking into account the nature of the Goods, arrange for insurance cover in which case the provisions of clauses 8.3 to 8.6 inclusive shall also apply mutatis mutandis. 8.8 Notwithstanding clauses 8.4 and 8.5, in the event of any claim under any insurance policy contemplated in this clause 8, such claim must be submitted to the Company in writing in accordance with the terms of the relevant insurance policy, these Conditions and the reasonable requirements of the Company from time to time. The Company shall submit the claim to the insurers. The Customer acknowledges that all proceeds arising out of any such claim will be paid by the insurers to the Company, who shall pay any amount due to the Customer, to the

9 Customer within a reasonable period of receipt of the proceeds. The Company shall be entitled to set off the proceeds received in terms of this clause 8.8 against any amount owing to the Company, by the Customer at that time. 9. CHARGES AND DISBURSEMENTS 9.1 Subject to these Conditions, the rates and charges payable by the Customer for the Services shall be the rates and charges set out in the Company s written quotation, or if there has been no written quotation, set out in the Company s standard rates published from time to time, or in the event that there is no standard rate, an amount agreed between the Parties in writing. 9.2 Any quotation given by the Company shall, subject to the other provisions of this clause 9, be valid for a period of 7 (seven) days only. 9.3 The rates and charges quoted by the Company for any Services shall not, unless otherwise specified, include any taxes, surcharges or other government, provincial or municipal charges or duties which shall be payable by the customer on demand. If any of the aforementioned or any other variable taken into account by the Company increases before the Company performs any of the Services to which they relate, the increase shall be for the Customer's account and shall be paid by the Customer on demand. 9.4 The Company shall, if the cost to it of performing any obligation is increased for any reason, be entitled at any time before the obligation is performed to increase its charges by giving notice thereof to the Customer. 9.5 Charges quoted are valid only for the Services specifically set out in the quotation. 9.6 Subject to these Conditions, the rates and charges payable by the Customer for any Additional Services shall be the Company s rates and charges in respect of similar services or if there are no rates and charges the reasonable rates and charges given the nature of the Additional Services and/or the reasonable costs incurred in rendering the Additional Services. 9.7 The Company shall not be obliged to disburse any monies on behalf of the Customer unless it has agreed in writing to do so and it is in receipt of funds adequate to cover the same. The Company shall not be liable for any claim, cost, expense, loss or damages suffered by the Customer or any third party as a result of any failure by the Company to disburse such monies. 9.8 If the Company accepts, in writing, an instruction from the Customer to recover from a third party any monies due to the Customer against delivery of the Goods, the Company shall not be liable for any costs, expense, loss or damages suffered by the Customer as a result of a failure by the Company to recover such monies, unless such loss or damage is attributable entirely to gross negligence on the part of the Company or those for whom it is vicariously liable,

10 and in such case subject to clause If there is a choice of tarrifs, rates or charges or premiums offered by carriers, warehousemen, underwriters or any other person, depending upon the value declared or the extent of the liability assumed by that person, the Company shall be entitled, in its sole discretion, to decide what declaration shall be made and what liability, if any, shall be imposed on the person, unless the Customer specifically instructs the Company otherwise The Company shall be entitled to keep for its own benefit, and shall not be obliged to make known to the Customer, any discount, allowance, commission or brokerage obtained in the course of executing the Instructions. 10. PAYMENT Payment is due 30 days net from date of statement 10.1 Regardless of any claim the Customer may have against the Company, the Customer shall pay all amounts owing to the Company on or before the 25 th (twenty fifth) day of the month following presentation of an invoice from the Company, unless otherwise stipulated on the invoice. All amounts shall be paid without demand, deduction or set-off, into a bank account nominated in writing by the Company If any amount due to the Company is not paid on due date, the Customer will be charged interest on the outstanding amount from time to time at the prime overdraft rate charged by the Company s bankers from time to time plus 2%. from due date to date of payment provided that should the law limit the maximum rate permitted at any stage, that maximum rate shall be levied Credit is granted entirely in the discretion of the Company, and the Company shall be entitled to demand payment on a cash on delivery basis or payment in advance of its anticipated charges and disbursements The Company may raise further invoices against the Customer in respect of any amount of any nature whatsoever erroneously omitted from earlier invoices or received late from Sub-contractors or third parties If the Company agrees to a written instruction from the Customer, to recover all or any of the Company's charges or disbursements from a third party, the Customer shall nevertheless remain liable therefore, and shall be obliged to pay such charges to the Company immediately upon request. 11. WARRANTIES BY THE CUSTOMER 11.1 Without limiting any other provisions of these Conditions, the Customer warrants to the Company that the Goods are:

11 the Customer's sole and exclusive property and/or the Customer has the full and absolute authority of the persons owning or interested in the Goods to enter into a contract on these terms and conditions and to bind itself and the owner, Consignee or Consignor of the Goods to these Conditions; fully and accurately described in all Instructions supplied by the Customer to the Company; such that there is no risk that they may contaminate or cause damage to any other property or pose a threat of injury or death to any person; subject to clauses 12 and 13, are not hazardous, abnormal, valuable, perishable or require any particular treatment including without limitation, temperature control and otherwise suitable for the Services without further precaution by the Company; packed and labeled properly and adequately, in compliance with all relevant Legal Requirements, so as to withstand handling, storage and transportation without damage to the Goods or damage or injury to any other persons or property; delivered together with all information, in writing, required to ensure that the Services carried out by the Company are in compliance with all Legal Requirements from time to time in force in any country in which they are stored or to which or through which the Goods are to be transported; are marked on the Goods/packaging and/or Containers in full compliance with all the Legal Requirements, conventions and practices applicable in any country to which or through which the Goods are to be transported and that such marks enable the Goods to be readily identified. 12. DANGEROUS GOODS 12.1 The Company shall not be obliged to render any Services in respect of any Dangerous Goods unless the Company has specifically agreed thereto in writing In the event that the Company agrees to accept Dangerous Goods: the Customer shall be responsible for complying fully with all Legal Requirements and any requirements of the Company; without restricting the generality of the aforesaid, ensure that the Dangerous Goods are properly and securely contained, packed, marked and labeled and separated from incompatible products;

12 ensure that the Company is provided, in writing, with information and documentation required for the rendering of the Services If any Dangerous Goods are tendered to the Company without its written consent or without the Customer fulfilling its obligations in terms of clause 12.2, the Dangerous Goods may at any time be disposed of, abandoned or rendered harmless without notice, where it is not reasonably possible to give notification to the Customer, in the sole discretion of the Company, and at the entire risk and expense of the Customer, without compensation to it or to any other party and without prejudice to the Company's right to its rates, charges or fees including the cost of destruction or disposal of the Dangerous Goods Notwithstanding the acceptance of Dangerous Goods with the Company s prior written consent the Company may, should the Company deem it necessary for whatever reason whatsoever, at any time dispose of, abandon, render harmless, or otherwise handle the Dangerous Goods in a manner that the Company deems reasonable and necessary, on notice to the Customer where such notice is reasonably possible, at the entire risk and expense of the Customer, without compensation to it or to any other party and without prejudice to the Company's right to its rates, charges or fees including without limitation the cost of destruction or disposal of the Dangerous Goods The Customer indemnifies the Company against all loss, damage, liability, cost or expense incurred as a result of or in connection with the rendering of any Services or Additional Services in respect of the Dangerous Goods, whether or not the Company has consented to the handling those Goods. 13. OTHER GOODS 13.1 SPECIAL/VALUABLE GOODS The Company shall not be obliged to render any Services in respect of bullion, coins, precious stones, jewelry, valuables, antiques, pictures, bank notes or currency, securities and other valuable documents or articles, organic matter, livestock or plants ( Special/Valuable Goods ), unless the Company has specifically agreed thereto in writing. Even where it has accepted such Goods, any Services or Additional Services rendered in respect of the Special/Valuable Goods shall be rendered at the sole risk of the Customer or the owner of the Goods and the Company shall not be liable for the loss of or damage to such Goods howsoever caused The Customer acknowledges that unless specifically requested and agreed to in writing, no extra security measures will be put in place when rendering any Services or Additional Services in respect of Special/Valuable goods.

13 The Customer indemnifies the Company against all loss, damage, liability or expense incurred as a result of or in connection with the rendering of any Services or Additional Services Special/Valuable Goods including without limitation the loss or damage thereof PERISHABLE GOODS AND GOODS REQUIRING TEMPERATURE CONTROL The Company will not be obliged to render any Services in respect of any Perishable Goods or Goods requiring any form of temperature control, unless the Company has specifically agreed thereto in writing. If Goods are perishable and they have begun or are likely to deteriorate, the Company may, having given written notice to the Customer, where possible, but received no suitable response or instructions, dispose or otherwise deal with those Goods in such manner as it deems fit at the Customer s cost The Customer shall give the Company at least 5 (five) days prior written notice of any Goods requiring any form of temperature control. Such notice shall include the type and nature of the Goods and the particular temperature that is required to be maintained. In the case of a temperature controlled Container vanned on behalf of the Customer, the Customer shall ensure that the Container has been properly pre-cooled or pre-heated as appropriate, that the goods have been properly vanned into the Container and that thermostat controls have been properly set by the Customer Should the Company agree in writing to set the relevant temperature controls in respect of any Goods requiring any form of temperature control, the Company shall be entitled to rely solely on the information provided by the Customer in terms of clause without any further investigation The Customer indemnifies the Company against any cost, expense, loss, liability or claim by any person arising out of any Services or Additional Services rendered in respect of any Perishable Goods or Goods requiring temperature control ABNORMAL GOODS The Company shall not be obliged to render any Services in respect of Abnormal Goods unless the Company has specifically agreed thereto in writing. Should the Company agree to accept Abnormal Goods, the Customer shall be responsible for complying with all the Legal Requirements or any requirements of the Company and without restricting the generality of the aforesaid, shall ensure that the Abnormal Goods are properly contained, packed and marked and labeled and the Company is given all information in writing required for the safe carriage and/or warehousing of the Abnormal Goods in order for it to have

14 sufficient time and facilities to arrange for the safe and legal carriage and warehousing thereof The Customer indemnifies the Company against all loss, damage, liability, cost, or expense incurred as a result of, or in connection with any Services or Additional Services rendered in respect of any Abnormal Goods. 14. ACCEPTANCE OF BENEFITS AND RATIFICATION 14.1 Notwithstanding any rights the Company may have at common law, the Customer is authorised and required by the Company to act on its behalf and obtain for it and accept on its behalf whatever benefits and limitations of liability that accrue to the Customer, in terms of any Contract of Carriage If the Customer is not party to the Contract of Carriage, the Customer shall procure that the issuer of such Contract of Carriage or the carrier in terms of the Contract of Carriage shall fulfill its obligations in terms of clause 14.1, for which purposes the Company hereby authorises the Customer to act on the Company s behalf The Company hereby ratifies any contract concluded on its behalf in terms of clause 14.1 or 14.2, and accepts any benefit which may be stipulated for the Company by such parties, in terms of those clauses. 15. SUB-CONTRACTOR'S LIABILITY 15.1 The Company shall be entitled to sub-contract all or any part of the Services or Additional Services on any terms whatsoever. In doing so the Company shall act a principle and not an agent on behalf of the Customer The Customer undertakes that no claim shall be made against any person undertaking the Services or Additional Services (including all subcontractors of the Company), other than the Company, which imposes or attempts to impose upon such person, any liability whatsoever in connection with the Goods, Services or Additional Services, whether or not arising out of the negligence or gross negligence on the part of any persons. If any such claim or allegation should nevertheless be made, the Customer indemnifies the Company against all consequences thereof Without prejudice to the aforegoing, every such sub-contractor or other person shall have the benefit of every right, defence and limitation of whatsoever nature provided for in these Conditions or otherwise available to the Company, as if such provisions were expressly for its benefit, and entering into these Conditions, the Company, to the extent of this clause 15, does so not only on its

15 behalf but also as an agent or trustee for such persons The Customer undertakes that no claim in respect of the Goods, the Services or Additional Services shall be made against the Company, other than in accordance with these Conditions, whether or not arising out of the negligence on the part of the Company and, if such claim should nevertheless be made, to indemnify the Company against all consequences thereof. 16. NO WARRANTIES BY THE COMPANY 16.1 The Company makes no representations and gives no warranties or guarantees (including any common law warranties) whatsoever arising out of or in connection with the Services, including without limitation: as to the nature and or suitability of the Services; against any loss, defect, hazard or damage to the Goods; 16.2 The Services are supplied voetstoets. The Customer acknowledges that it is fully acquainted with and understands the meaning of the term voetstoets. 17. LIMITATION OF LIABILITY 17.1 Notwithstanding any provisions of this clause 17, the Company shall not be liable for any cost, expense, loss, damage or claim suffered by the Customer or any third party where the cause of action was prior to delivery to the Company or after delivery to the Customer or Consignee in terms of clause 3 or clause Notwithstanding anything to the contrary or any of other clause of these Conditions limiting or excluding liability on the part of the Company, the Company shall not be liable for any cost, expense, claim, loss or damage (including without limitation any damage caused to any person or property or any loss of profits) caused to any person or property (including without limitation the Goods) unless it is attributable directly and entirely to any act or omission of gross negligence on the part of the Company In all such events, the burden of proving such gross negligence shall, at all times rest upon the Customer or such other party alleging it Notwithstanding anything to the contrary contained in these Conditions and subject to clause 17.7, the maximum liability of the Company in respect of any cause of action shall be limited to the lesser of the limit set out in the Customer Application or the fair market value of the Goods subject to the cause of action, regardless of the nature, number and amount of claims arising out of such cause of action.

16 17.5 For the purposes of clause 17.4, fair market value shall mean the fair market value of the Goods as agreed between the Company and the Customer or, failing agreement within 10 (ten) business days after agreement has been requested in writing, shall be determined by the auditor of the Company from time to time taking into account the price that would be paid by a willing buyer to willing seller, on the open market. The auditors shall act as experts and not as arbitrators. Their decision shall be binding on the parties and their costs and charges shall be borne by whichever of the parties is substantially unsuccessful in the disagreement The Customer agrees to be bound in respect of all rail transport and port use by the tariffs, terms and exclusions of liability contained in the provisions of the applicable Transnet Limited tariff, or the tariff of the applicable national railway carrying the Goods, save that nothing therein contained shall increase the Company's liability as limited by clause 17 hereof Notwithstanding anything to the contrary contained herein, the Company will not under any circumstances be liable to the Customer for consequential or indirect loss or damage including without limitation loss of profits, howsoever arising, including without limitation any loss or damage whatsoever caused by delay. 18. CLAIMS AGAINST THE COMPANY 18.1 Unless the Customer gives written notice of any defect in the Services or any damage or destruction to the Goods, within 5 (five) days of delivery of the Goods, then all of the Goods shall be deemed to have been delivered in good order and condition, in accordance with the Instructions Notwithstanding anything to the contrary or any other clause of these Conditions limiting or excluding liability on the part of the Company, any claim which the Customer has against the Company, in connection with or arising out of the Goods, Services and or Additional Services shall lapse and become extinguished and unenforceable unless the Customer: within 6 (six) months of such claim arising, gives written notice thereof to the Company and at the same time discloses to the Company in writing, the material facts on which the claim is based; and within 12 (twelve) months of such claim arising, institutes legal proceedings against the Company in respect of the claim, by issuing summons out of a Court of competent jurisdiction and having such summons served on the Company.

17 19. LIEN 19.1 The Company shall have a lien on all Goods (including any Contracts of Carriage, import permits or other refunds, payments or recoveries relating to the Goods) in its possession or under its control for any sum due to it by the Customer which is unpaid. If the Customer is in breach of these Conditions, or any other agreement with the Company, should the Customer fail to remedy that breach within 4 (four) days of written notice requiring it to do so, the Company shall have the right to sell the whole or any part of the Goods, either by public auction or by private treaty and to apply the proceeds of such sale, after deducting all expenses thereof, in payment towards any sum due to the Company by the Customer Any surplus will be paid over to the Customer, within 90 (ninety) days after such sale or, in the event of the Company being unaware of the whereabouts or address of the Customer, on application of the Customer If the Company has, in accordance with the provisions of clause 19.1, sold only part of the Goods stored and the proceeds of such sale are sufficient to pay to the Company all monies due to it by the Customer up to date thereof, the Customer will be entitled to take delivery of the remaining part of the Goods. The Company will have the right to charge for the storage of any the Goods forming part of such remainder of which delivery is not taken by the Customer, in accordance with the provisions of these Conditions and, without notice to the Customer, to recover any such remuneration in accordance with the provisions of this clause 19, which will apply mutatis mutandis The exercise by the Company, of any of the rights that are accorded to it by this clause 19 will be without prejudice to any other rights that it may have under these Conditions or at common law, in respect of the non-payment by the Customer of the Company's remuneration. 20. INDEMNITY 20.1 In addition to and without prejudice to any of the foregoing conditions, including without limitation any other indemnity provided for in these Conditions, the Customer hereby indemnifies the Company against all liabilities, loss, damage, costs and expenses including consequential and indirect damages, loss of profit, or any loss of property or any loss of life whatsoever suffered or incurred by or against the Customer or any other Party incurred by or against the Company, howsoever arising, arising directly or indirectly from, or in connection with, Instructions or the implementation thereof, and/or the Services and/or the Goods including without limitation any such claim, liability incurred by or in connection with loss, damage, costs or expenses incurred in connection with: any servant, agent or Sub-contractor or any haulier, carrier, warehouseman, or other person whatsoever at any time arising out of any

18 claim made directly or indirectly against such party by the Customer or any other person; any owner, or person with an interest in the Goods, who is not the Customer of the Company; or any carrier of the Goods if the Company is named the Consignor or the Consignee of the Goods. 21. LEGAL CHARGES In the event of the Company instructing its attorney to recover money or goods from the Customer, the Customer shall be liable for and shall pay all legal costs incurred by the Company on an attorney and own client basis, including collection commission. 22. FORCE MAJEURE 22.1 Subject to the following provisions of this clause 22, neither party shall be responsible to the other for its failure to perform any obligation or for any delay in performance in the event and to the extent that such failure or delay is caused by force majeure For the purpose of these Conditions force majeure shall mean any circumstance which: is beyond the reasonable control of the party giving notice of force majeure (hereinafter in this clause 22 referred to as "the affected party") and for which it is not responsible; and is not a circumstance which the affected party could, by the exercise of a standard of care and skill which could reasonably be expected of that party, have avoided Subject to the above, force majeure includes, but is not limited to, war (whether declared or not) revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, blockade, high-jacking, embargo, boycott, the exercise of military or usurped power, fire, explosion, theft, storm, flood, drought, wind, lightning or other adverse weather conditions, epidemic, quarantine, accident, breakdown of machinery or facilities, strikes, lockout or labour dispute, acts or restraints of government, imposition, or restrictions of embargo on imports or exports Notwithstanding the provisions of clause 22.2, a labour dispute, strike or lockout which could be resolved by the affected party acceding to the demands made of it shall, be deemed to be an event of force majeure The affected party shall give notice to the other immediately upon the occurrence of an event of force majeure.

19 22.6 If the force majeure event is of such a nature that it will not result in impossibility of performance of the obligation in question, but it will delay the performance thereof, the affected party shall be entitled to such extensions of time in which to perform that obligation as may be reasonable in the circumstances, provided that should the force majeure event subsist for a period of longer than 30 (thirty) days, the Company shall be entitled to cancel these Conditions or any other agreement with the Customer on 7 (seven) days written notice to the Customer Where, despite the occurrence of a force majeure event, it becomes necessary for the Company to make payment to any lawful authority of any tax, duty, penalty or other amount relating to the Goods or the Services, the Company shall be entitled to recover such payment from the Customer 23. RELAXATION 23.1 No relaxation by a party of any of its rights in terms of these Conditions at any time shall prejudice or be a waiver of its rights and it shall be entitled to exercise its rights thereafter as if relaxation had not taken place No act or omission by or on behalf of the Company shall be constructed as an acceptance of liability or a waiver of right or an acceptance of the correctness of an interpretation or viewpoint expressed by a Customer or Sub-contractor unless it does so expressly in writing. 24. NOTICES 24.1 All written notices given by one party to the other shall be deemed to have been validly served if delivered by hand or sent by telex or telefax or prepaid registered post to the telex or the fax number or postal address, as the case may be, reflected on the then application to which these Conditions are attached Such notice shall, if delivered by hand, be deemed to have been received on the date of delivery, if sent by telex or telefax be deemed to have been received on the business day (in the country to which the telex or telefax was sent) following dispatch, and if sent by prepaid registered post, be deemed to have been received seven days after posting. 25. APPLICABLE LAW The Customer hereby consents to the jurisdiction of the Courts of the Republic of South Africa, having competent jurisdiction. These Conditions and any contracts concluded in terms hereof shall be governed by and interpreted according to the laws of the Republic of South Africa.