The following terms and conditions entered on the 14Th day of December 2010, alone shall apply to and govern all Carriage performed or undertaken by AFRICA SHIPPING LOGISTICS in connection with any contract whatsoever entered into by the company for the Carriage of Goods provided however that :
(a) If there is any inconsistency between the Standard Trading Conditions and the Terms and Conditions contained in any other document issued by or on behalf of the Company in connection with the particular Carriage of Goods (which terms and conditions are hereby incorporated into these Standard Trading Conditions for the purposes of that particular contract of Carriage), then the Standard Trading Conditions shall prevail; and
(b) If any such other document referred to in paragraph above deals with any matte r not dealt with in these Standard Trading conditions, then the provisions of that other document dealing with those matters not dealt within these Standard Trading Condit ions shall apply to and govern
1. In these Standard Trading Conditions:
“Company” means AFRICA SHIPPING LOGISTICS (registered with the Chamber of Commerce and Industry in Rotterdam KvK Number 51456575 dated 14Th day of December 2010) its employees, officers, agents and subcontractors.
“Customer” means the person(s) with whom this Contract is made (either as principal or agent for another)
“Dangerous Goods” means cargo which is volatile or explosive or which is or may become dangerous, inflammable or offensive (including radioactive materials) or which, although benign may become dangerous if stored in proximity to specific others, or which may become liable to damage any person or property whatsoever.
“Goods” means the cargo accepted by the Company together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
“BTW” means the goods and services tax imposed by or under the Dutch law.
“BTW Rate” means the rate of BTW as stated under the Dutch Law.
“Invoice” means the tax invoice under the Dutch Law.
“Services” means the whole of the operations undertaken by the Company in respect of the Goods.
“Subcontractor” includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
“Supply” means the same as in the Dutch Law.
“Taxable Supply” means any supply under these Conditions in respect of which the Company is or may become liable to pay BTW.
“Premises” means any place or places nominated by the Company where Goods are held warehoused, stored or removed from time to time.
“Storage Service” means the warehousing and storage of the Goods by the Company at the premises.
“Transit Store Service” means services associated with the receipt, storage and dispatch of Goods, including Container Deconsolidation Services, Storage Service and Assembly of Orders, provided by the Company.
2. The Company is not a common carrier and accepts no liability as such. The company reserves the right to accept or refuse the provision of Services in respect of the goods at its sole discretion. All Services are provided to the Company subject only to these Conditions. In the event of and to the extent of any inconsistency between these Conditions, which are incorporated into the bill of lading, waybill, consignment note or other transport document issued by the Company, these Conditions prevail.
3. The Customer warrants that it is either the owner or the authorized agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Contract on its own behalf or as authorized agent of that person or those persons. Further the Customer undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and/or the Goods to any person who claims to have, who has or may hereafter have any interest in the Goods or any part of the Goods.
4. The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage and carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and carriage, having regard to their nature and indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty. Further the Customer shall provide to the Company all such assistance, information and documentation that may be necessary to enable the Company to comply with such laws and regulations in a timely manner.
5. The Customer warrants that it will indemnify the Company against any liability, claims, loss, damage, costs or expenses arising out of any person relying upon advice or information given by the company including advice or information which is not related to specific instructions accepted by the Company.
6. All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations (whether or not resulting from or arising out of the negligence of the Company) shall be paid by the Customer. If these customs and/or excise duties, costs, fines or penalties are in the first instance paid by the Company, the Customer shall reimburse in full to the Company such amounts including any other charges which might be borne in connection with such transaction(s) being undertaken.
7. The following clauses shall apply:
(i) The Customer shall not tender for the provision of Services by the Company and Dangerous goods without presenting to the Company a full description disclosing their nature and in any event the Customer shall be liable for all death, bodily injury, harm, loss and/or damage hereby caused and shall indemnify the Company for such liability.
(ii) If, in the opinion of the Company, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or a damaging nature, they may at any time be destroyed, disposed of or abandoned or rendered harmless by the Company without compensation to and at the cost of the Customer.
8. The following clauses shall apply:
(i) This clause is subject to clause 8(ii) and (iii). The Goods are at the risk of the Customer and not of the Company and the Company shall not be responsible in tort including negligence or contract or bailment or otherwise for any, and the consequences of any, loss of or damage to or deterioration of the Goods or misdelivery or failure to deliver or delay in delivery of Goods including chilled, frozen, refrigerated or perishable Goods either in transit or in storage, or costs of any clean up or consequences of a spill, or failure to provide or delay in providing the Services for any reason whatsoever including without limiting the foregoing the negligence or breach of contract or wilful act or default of the Company or others or the conversion or misappropriation of the Goods by the Company’s servants, agents or subcontractors. This Clause shall apply to all, and the consequences of all, such loss of or harm or damage (including consequential loss and lost profits) to or deterioration of the Goods or misdelivery or failure to deliver or delay in delivery of the Goods or failure to provide or delay in providing the Services whether or not the same occurs in the course of performance by or on behalf of the Company of the Contract or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach or a breach of a fundamental term of the Contract.
(ii) Other than the express terms of this Agreement and warranties and conditions implied by relevant legislation including the Trade Practices Act, the exclusion of which from an agreement would contravene a statute or cause part of all of this clause to be void (“non-excludable condition”), the Company excludes all other terms, conditions and warranties in relation to the Services provided to the Customer under this Agreement.
(iii) The Company’s liability for breach of any non-excludable condition is limited at the Company’s option to the supplying again of the Services or the payment of the costs of having the Services supplied again.
9. Where any handling, installation, removal, assembly or erection of any kind whatsoever is required to be undertaken by the Company, the Company shall not be liable for any death, injury, loss, bodily harm or damage which may result from or arise out of what the Company undertakes. Further the Customer shall indemnify the Company in respect of any such liability whether or not that liability arises from negligence or breach of contract or willful act or default of the Company or the Company’s servants, agents or subcontractors.
10. (i) The Customer authorizes the Company and any subcontractor to subcontract on any terms the whole or part of the provision of the Services.
(ii) The Customer undertakes:
(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or may be subsequently be interested in the provision of the Services and/or in the Goods, against any person by whom (whether it is a subcontractor, principal, employer, servant , agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and/or the Goods and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim allegation. For the purpose of this Clause 10(ii), the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and
(b) To indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services and /or the Goods.
11. Every exemption, limitation, condition and liberty in these Conditions and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Conditions shall also be available and shall extend to protect:
(i) All Subcontractors
(ii) Every employee, servant or agent of the Company or of a subcontractor;
(iii) Every other person (other than the Company) by whom the Services or any part of the Services are or is provided; and
(iv) All persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (i), (ii) or (iii) of this Clause 11:
And for the purpose of this Clause 11, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
12. (i) The Customer authorizes any deviation from the usual manner in which the Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances. And in every case at the customer’s risk and expense.
(ii) If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Services the Company will give priority to that method but its adoption remains at the sole discretion of the Company and the Customer authorizes the Company to provide the Services by another method.
13. Insurance will not be arranged by the Company except with the express written instructions of the Customer and then only at the Customer’s expense and on lodgement of a declaration as to value prior to acceptance of the Goods by the Company. The Company may charge the Customer for arranging such insurance. But shall have no liability or responsibility whatsoever (whether in contract negligence or otherwise) in respect of any Insurance Policy. Without limiting the above, the Company will not be liable in contract, negligence or otherwise, in relation to the Company’s choice of, or recommendation of, or the insolvency of an insurer.
14. The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company or/and Goods have been loaded and transported any distance and under no circumstances shall any of those charges be refunded. The Company may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue or require the Goods to be reweighed, remeasured or revalued and charge proportional additional charges accordingly. The Customer is and remains responsible to the Company for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not they are damaged. In event the client delays in making payments to the Company after the stated date of payment, then a surcharge of 0.25% of the total invoice value or Euros 25 per day whichever is higher shall be applied from the date when the invoice was sent to the client.
15. The Company shall have both a general and a particular lien on all Goods and any documents relating to the Goods and/or any other Goods or cargo of the Customer in possession or control of the Company and any documents relating to those other goods or cargo for all sums (whether or not they are the subject of an overdue account) payable by the Customer to the Company for that purpose and shall have the right to sell such goods or cargo by public auction or private treaty on 28 days notice in writing to the Customer. The Company shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person. Upon accounting to the Customer or other entitled person for any balance remaining after payment of any sum due to the Company and the costs of sale or disposal the Company shall be discharged of any liability whatsoever in respect of the Goods. When the Goods are liable to perish or deteriorate the Company’s right to sell or dispose of the Goods shall arise immediately upon any sum becoming due to the Company subject only to the Company taking reasonable steps to provide reasonable notice to the Customer.
16. Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that nominated person does not pay those charges within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those charges to the Company within seven (7) days of being notified of that person’s failure to pay.
17. The Company shall not be responsible in negligence or contract or otherwise for loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information given or made by or on behalf of the Company to the Customer or others as to the classification of or any matter material to the valuation of or the liability for or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate charged in respect of the Goods or any cargo whatsoever. In giving or making any such quotation, advice, statement, representation or information the Company relies solely on the particulars provided by the Customer, which warrants that those particulars accurately and completely describe all aspects of the Goods or cargo and the transaction(s) relating to the Goods or cargo.
18. In all cases where liability of the Company has not been excluded, whether by these Conditions, by statute or by international convention or otherwise, the liability of the Company whatsoever and howsoever arising is limited to:
(i) Euros €100 or the value of the Goods the subject of the Contract at the time the goods were received by the Company, whichever is the lesser; or
(ii) In the case of a proven breach of an implied warranty provided by the Trade Practices Act as amended the payment of the cost of having the Services supplied again, or alternatively the supplying again of those services, at the Company’s option.
19. The Company shall not be bound by any agreement purporting to waive or vary these Conditions unless such agreement to so waive or vary shall be in writing and signed by a director of the Company.
20. (i) Any claim for loss or damage must be notified in writing to the Company with seven (7) days of delivery of the Goods or of the date upon which the Goods should have been delivered.
(ii) In any event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless suit is brought and notice given within nine (9) months of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered, whichever occurs first.
21. (i) All the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this Contract or of these Conditions by the Company or any other person entitled to the benefit of such provisions notwithstanding that such breach may constitute a fundamental breach of Contract or a breach of fundamental term.
(ii) It is agreed that if any provision or any part of any provision of these Conditions is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.
22. Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Trade Practices Act as amended if and to the extent that the Act is applicable to this Contract and prevents the exclusion, restriction and modification of such warranty.
23. This Agreement is to be governed by and is to be construed in accordance with the laws in force in Netherlands. The Company and the Customer irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts and tribunals of The Netherlands.
24. This Clause applies if the Company is or may become liable to pay BTW in relation to any Supply under these Conditions.
(i) Unless otherwise stated, all charges quoted are exclusive of BTW. In addition to such charges, the Customer must pay BTW on the Taxable Supply to the Company of an amount equal to the BTW exclusive consideration multiplied by the BTW Rate. BTW shall be payable by the Customer without any deduction or set off for any other amount at the same time as the BTW exclusive consideration is payable. In all other respects, BTW shall be payable by the Customer to the Company upon the same basis as the BTW exclusive consideration is payable by the Customer under these Conditions.
(ii) The Company must issue an invoice or invoices to the Customer for the amount of BTW referable to the Taxable Supply. The Company must include in any such invoice such particulars as are required by the Dutch Law in order that the Customer may obtain an input tax credit for the amount of BTW payable on the Taxable Supply.
(iii) In any part of the consideration is referable to both a Taxable Supply, the amount of BTW payable by the Customer shall be determined by the Company and shall be the same amount of BTW that would be payable if the Taxable Supply were the only Supply made to the Customer.
(iv) If the Customer makes default in the payment on the due date of any amount payable pursuant to Clause 24 (ii) then without prejudice to any other remedies of the Company, the Customer shall pay to the Company upon demand an amount equal to the amount of any damages or interest or additional BTW that may become payable by the Company arising out of the default of the Customer.
25. If AFRICA SHIPPING LOGISTICS are unable to meet their obligations as a result of force majeure, these obligations shall be suspended for as long as the state of force majeure continues.
26. If the state of force majeure has lasted for fourteen days, either party may dissolve the contract in whole or in part by notification in writing without any entitlement to compensation or damages.
27. Force majeure affecting AFRICA SHIPPING LOGISTICS means any circumstances beyond their control that prevent the performance of their obligations towards the Purchaser in whole or in part or are such that AFRICA SHIPPING LOGISTICS cannot reasonably be expected to comply with their obligations, irrespective of whether these circumstances were foreseeable at the time when the contract was entered into. These circumstances are deemed to include strikes, lockouts and standstills or other problems affecting AFRICA SHIPPING LOGISTICS’s suppliers and/or measures by any official bodies, and also the lack of any permit or licence to be obtained from the authorities.
28. The parties must inform each other as soon as possible of any potential or actual state of force majeure.
29. Changes to this document shall be made anytime at Africa Shipping Logistics discretion without any prior notification.
Last updated on 20Th July, 2011.