INTRODUCTION
This document contains the terms and conditions of trade between yourself (the customer) and Nautical Courier Services, for the avoidance of doubt, these terms are intended to govern the service relationship between the customer and the company. In these trading terms and conditions the headings to the clauses are for reference purposes only and shall not aid in the interpretation of the clauses to which they relate unless the context clearly indicates a contrary intention, words importing anyone gender include the other genders, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporate) and vice versa.
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LOSS OR DAMAGE TO CONSIGNMENT
No responsibility or liability shall attach to the company and/ or any independent service provider and/ or its employees for any loss or damage to a consignment unless such loss or damage occurs whilst the consignment is in actual care of the company. The company shall under no circumstances be liable for any loss or damage incurred or caused through the consignment being tendered for carriage with inadequate packaging or by the perishable, fragile or brittle nature of the consignment or subject to any applicable law, due to the negligent and/ or grossly negligent acts or omissions of the company and/ or its employees. The company shall not accept liability for the handling of any bullion, coins, precious stones, jewellery, valuables, antiques, picture or painting, bank notes, securities and other valuable documents or articles unless the company agrees thereto in writing prior to the consignment being tendered, to accept liability for the handling of the items listed. If the company is for any reason unable to affect delivery of the consignment, reasonable steps would be taken to return the consignment to the customer. The customer shall be responsible for the costs of carriage, attempted delivery and return of the consignment.
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CONDITIONS OF CARRIAGE
The company reserves the right to refuse the carriage of a consignment for any customer at its discretion, whether before or after carriage has commenced and upon such refusal the customer shall have no right or recourse against the company. The company shall not be public or common carriers in relation to any consignment forming the subject of these terms, and any consignment carried by the company is accepted subject to these terms. No amendment or consensual cancellation and/ or variation of any of these terms and no extension of time or waiver or relaxation of any provision of these terms shall be binding unless recorded in a written document signed by a duly authorized representative of the company and a duly authorized representative of the customer. All business undertaken, including advice, information or services provided by the company to the customer shall be subject to these terms. These terms cannot be changed by any employee of the company, whether by oral or written undertaking or promise, before or after receipt and acceptance of these terms. Consignments are accepted, carried subject to the conditions stipulated by independent service providers into whose possession or custody the consignments may pass to finalize and deliver such consignment.
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NO PARTNERSHIP
Save as otherwise expressly provided in these Terms, the company shall at all times act as independent contractor, and nothing in these terms shall constitute a partnership, joint venture or agency agreement between the company and the customer in any way, shape or form.
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GOODS IN TRANSIT INSURANCE
The customer acknowledges and agrees that, insofar as the company agrees to arrange insurance for and on behalf of the customer, the company will act solely as agent for and on behalf of the customer, and the customer shall have no claim of whatsoever nature against the company, its employees, officers, agents and/ or subcontractors in respect of such insurance, including but not limited to any claim in relation to the loss suffered by the customer as a result of the insurer concerned disputing its liability under the relevant insurance policy. The company shall endeavour to effect any insurance the customer timeously and in writing instructs it to effect. Such insurance will be subject to such exceptions and conditions as may be imposed by the insurance company or underwriter taking the risk and the company shall not be obliged to obtain separate cover for any risks so excluded. The company will arrange insurance on goods in transit to a maximum of R200,000 (Two Hundred Thousand Rands Only) for any one loss incurred by the company. The insurance will cover all goods in transit and the customer may only receive the proportionate share of the insurance claim that is approved by the insurer. This proportionate share will be calculated as follows: customer value of goods divided by total value of goods carried multiplied by the approved insurance value paid out to the company. The goods in Transit cover excludes all electronic devices which will need to be insured at the time of shipping at a cost of 1.25% of the value of the goods in transit.
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CONDITIONS OF PAYMENT
Unless otherwise specifically agreed by the company in writing the customer shall pay to the company immediately upon presentation of account all sums due to the company without deduction or set-off and payments shall not be withheld or deferred on account of any claim or counterclaim which the customer may allege. All and any moneys received by the company from the customer shall be appropriated by the company in its sole and absolute discretion in respect of any undisputed indebtedness owing by the customer to the company, notwithstanding that the customer might, when making payment, seek to appropriate the payment so made to any particular debt or portion of a debt.
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DUTIES, TAXES, IMPOSTS, LEVIES AND DEPOSITS
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 any duties, taxes, imposts, levies, deposits or out-lays of whatsoever nature levied by or payable to the authorities, intermediaries or other parties at any port or place or in connection with the goods and whether at the time of entry and/or at any subsequent time and for any payments, fines, penalties, expenses, loss or damage or whatsoever incurred or sustained by the company in connection therewith or arising there of. The company shall bear no liability in consequence of the fact that there may be a change in the rate of duty, port dues, freight, railage or cartage or any other tariff, before or after the performance by the company of any act involving a less favourable 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.
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RECOVERY OF DUTIES INCORRECTLY PAID
Where as a result of any act or omission by or on behalf or at the instance of the company and whether or not such act or omission was negligent, any duty, tax, levy, railage, port dues, freight, cartage or any other impost or charge has been paid or levied in an incorrect amount, then any responsibility or liability to the customer which the company may otherwise have will cease and fall away if the customer does not within a reasonable time having regard to all the circumstances, and in particular to the time allowed for the recovery from the payee of the amount overpaid, advise the company that an incorrect amount has been paid or levied, and do all such acts as are necessary to enable the company to effect recovery of the amount incorrectly paid.
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EXAMINATION OF LANDED GOODS
Where it is necessary for an examination to be held or other action to be taken by the company in respect of any discrepancy in the goods which are landed or discharged from any vessel, aircraft, vehicle, or transport unit, no responsibility shall attach to the company for any failure to hold such examination or to take any other action unless the company has been timeously advised by the landing or discharge agent that such goods have been landed and that such a discrepancy exists. The company will not be responsible for examining or counting any goods received by it where such goods are bundled, palletised or packed in any manner such that their number cannot be quickly and easily counted. Should the company undertake to count goods so received, it shall incur no liability in respect of any error or inaccuracy in such counting, whether such error or inaccuracy is the result of negligence on the part of the company or otherwise. The company shall be entitled to levy a charge on the customer for the counting of goods in such circumstances.
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LIMITATIONS ON THE COMPANYS LIABILITY AND RESPONSIBILITIES
The company shall not be liable for any loss or damage to the goods carried with company. Where customers make a claim and the company chooses to accept liability as limited herein, then, despite such acceptance, no claim shall vest against the company unless the customer makes a claim in writing within 7 days after delivery of the consignment to the intended receiver. Further to the above: the company shall not be liable for indirect or consequential loss damage to any consignment, including loss of profits or loss of contracts howsoever caused. The Company shall have no responsibilities or liability to the customer for any act or omission of any other carriers, sub-contractors, handlers and any other parties (each a independent service provider) utilized by the company to conduct services on behalf of the company in order to discharge its obligations towards the customer, despite the fact that the company may be responsible for the payment for such independent service providers charges. The company however reserves the right, at its sole discretion, to take action on behalf of the customer should the independent service provider fail to carry out duties suitable and the company’s liability shall be limited at all times to the value of the carriage goods. Every exemption, limitation or condition contained in these terms and every right, indemnity, exemption from liability, defense and immunity hereunder shall also be available and shall extend to protect all independent service providers. Without prejudice to the aforegoing, the company is or shall be deemed to be acting as agent or trustee on behalf of each independent service provider and each of them shall to this extent, be or deemed to be a party of these terms. As stated below and subject to any applicable law, despite the fact that the company may purport or attempt to act on any instructions, no liability shall attach to any of the company for failure, whether through its negligent and/ or grossly negligent act, omission or otherwise, to perform such instructions. If its necessary for an examination to be conducted by the company in respect of any discrepancy in the consignment which are landed from any vessel, aircraft, vehicle or container, no responsibility shall attach to the company for any failure, whether through its negligent and/ or grossly negligent act, omission or otherwise, to make such examination or take any other action. The responsibility for the consignment and responsibility to comply with any regulations, law, security and/ or any other obligation pertaining to the consignment remains that of the customer, despite the contractual relationship between the company and the customer. The packaging (including the placing of the consignment into any container supplied to the customer by the company) of the consignment is the sole responsibility of the customer. It is the sole responsibility of the customer to adequately address each consignment to enable the effective delivery thereof by the company.
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LAW AND JURISDICTION
These terms shall be governed by and construed in accordance with the laws of the Republic of South Africa and the parties submit to the non-exclusive jurisdiction of courts of South Africa. The company shall be entitled, in their sole discretion, to institute any proceedings against the customer in any Magistrates court with relevant jurisdiction, even though the cause of action arose, or the amount claimed, is beyond the jurisdiction of such court. This clause does not preclude the company, in its sole discretion, from instituting action in the high court with relevant jurisdiction elected by the company.
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COMPANY ENTITLED TO ACT AS AGENT OR PRICIPLE IN CONTRACTING
Unless otherwise agreed in writing, the company in procuring the carriage, storage, packing or handling of goods shall be entitled to act either as an agent for and on behalf of the customer or as a principal, as it in its absolute discretion deems fit. The offer and acceptance of a fixed price for the accomplishment of any task shall not itself determine whether such task is to be arranged by the company acting as agent or as a principal. The customer acknowledges that when the company, as agent for and on behalf of the customer, concludes any contract with a third party, such agreement is concluded between the customer and the third party. Unless otherwise agreed in writing, the company, when acting as agent for and on behalf of the customer, shall be entitled to enter into any contract it reasonably deems necessary or requisite for the fulfillment of the customer's instructions, including, without limitation, contracts for the carriage of goods by any route or means or person; 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.
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SUBCONTRACTING
Any business entrusted by the customer to the company may, in the absolute discretion of the company, be fulfilled by the company itself, by its own servants performing part or all of the relevant services, or by the company employing, or entrusting the goods or services to third parties on such conditions as may be stipulated by, or negotiated with, such third parties for the purposes of such services, or such part thereof as they may be employed to carry out. Where the company employs third parties to perform all or any of the functions which it has agreed to perform, the customer agrees that the company shall have no responsibility or liability to its customer for any act or omission of such third party, even though the company may be responsible for the payment of such third party's charges; but the company shall, if suitably indemnified against all costs, (including attorney and client costs) which may be incurred or awarded against the company, take such action against the third party on the customer's behalf as the customer may direct.
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GOODS REQURING SPECIAL ARRAGNMENTS
Except under special arrangements previously made in writing the company will not accept or deal with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock or plants. Should the customer nevertheless deliver such goods to the company or cause the company to handle or deal with any such goods otherwise than under special arrangements previously made in writing the company shall incur no liability whatsoever in respect of such goods, and in particular, shall incur no liability in respect of its negligent acts or omissions in respect of such goods.
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GOODS REQURING PRIOR CONSENT OF THE COMPANY
The customer shall obtain in advance the company's specific written consent to accept into its possession or control or into the possession or control of any of its servants, agents or employees any goods, including radio-active materials, which may be or become dangerous, inflammable or noxious, or which by their nature may injure, damage, taint or contaminate, or in any way whatsoever adversely affect any person, goods or property, including goods likely to harbour or attract vermin or other pests. The customer warrants that such goods, 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. If any such goods are delivered to the company, such goods may for good reason as the company in its discretion deems fit including, without limitation, 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 the company being liable for any compensation to the customer or any other party, and without prejudice to the company's rights to recover its charges and/or fees including the costs of such destruction, disposal, abandonment or rendering harmless or other dealing with the goods. The customer indemnifies the company against all loss, liability or damage caused to the company as a result of the tender of goods to the company and/or out of the foregoing.
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PERISHABLE GOODS
Without limiting or affecting any other terms of these trading terms and conditions, goods (whether perishable or otherwise) in the care custody or control of the company may at the customer's expense be sold or disposed of by the company without notice to the customer, sender, owner or consignee, if such goods have begun to deteriorate or are likely to deteriorate; such goods are insufficiently addressed or marked; the customer cannot be identified; the goods have not been collected or accepted by the customer or any other person after the expiration of 21 days from the company notifying the customer in writing to collect or accept such goods, provided that if the company has no address for the customer such notice period shall not be necessary, and payment or tender of the net proceeds, if any, of the sale thereof after deduction of those charges and expenses incurred by the company in respect thereof shall be equivalent to delivery of such goods. Should any amount owing by the customer to the company in respect become due and payable and remain unpaid, the company shall be entitled and the customer hereby authorises the company and without first obtaining an order of court, to sell all or any of the goods by public auction or on reasonable notice not exceeding 14 days by private treaty. The net proceeds of any such sale, after deducting therefrom all costs, charges and expenses incurred by the company, shall be applied in reduction or discharge as the case may be, of the customer's obligations to the company in respect of such goods without prejudice to the company's rights to recover from the customer any balance which may remain owing to the company after the exercise of such rights. Should the total amount collected by the company, after deducting therefrom all costs, charges and expenses incurred by the company in respect thereof, exceed the full amount of the customer's obligations to the company in respect of such goods, the company shall be obliged to refund such excess to the customer.
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COST
The customer will be liable for all cost, incurred by the company in the recovery of any amount or the enforcements of any rights which it has hereunder, including collection charges and cost on an attorney and own client scale of counsels as brief (whether incurred prior to or during the institution of legal proceedings), or if judgment has been granted in connection with satisfaction or enforcement of such judgments.
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DELIVERY OF CONSIGNMENTS
The onus of establishing the condition of the consignments at the time of delivery thereof by the company shall rest with the customer. Without limiting the generality of the a foregoing, the company shall be entitled to delay or expedite the date of dispatch of any consignment if, in its sole discretion, it: considers it necessary for the safety of the consignments or determine that there is a backlog of consignments with higher priority or deems it necessary for any other reasons (including but not limited to complying with health or similar regulations, or any other commercially valid reason). The company will only deliver consignments which are the property of the customer. The customer warrants and undertakes that: it is authorized to accept these terms on behalf of itself and agent for on behalf of all other persons who are or may become interested in the consignment and it indemnifies the company against any damages, cost and expenses resulting from any breach of the warranty stipulated above.
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FORCE MAJEURE
The company shall not be responsible for delays in deliveries due to event of force majeure, including, but not limited to, fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restrictions, delay, in transportation, labour shortage or strikes, materials or manufacturing facility shortage, accidents, boycott, embargo or any act or regulations of government or governmental authority and other contingencies beyond the companys control resulting in impossible or delay or performance of the company.
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NO CLAIMS AGAINST COMPANY DIRECTORS AND EMPLOYEES
The customer undertakes that no claims shall be made against any director, servant or employee of the company which imposes or attempts to impose upon him any liability in connection with the rendering of any services which are the subject of these trading terms and conditions and hereby waive all and any such claims.
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WARSAW CONVENTION
When carriage is tendered for international destinations, the provisions of and law relating to the Warsaw Convention shall apply.
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RECOVERY OF DEBTS DUE TO THE COMPANY
The company shall be entitled to recover any amounts due to it by the customer in respect of instructions relating to or in terms of any contract in respect of particular goods from the customer, or if the customer acts as an agent for a disclosed or undisclosed principal, as the company in its absolute discretion deems fit.
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TERMS AND CONDITIONS OF AGENTS AND SUBCONTRACTORS
Notwithstanding anything to the contrary contained herein the customer agrees that all goods shall be dealt with by the company on the terms and conditions, whether or not inconsistent with these terms and conditions, stipulated by the carriers, warehousemen, government departments, and all other parties (whether acting as agents or subcontractors to the company or not) into whose possession or custody the goods may pass, or subject to whose authority they may at any time be.
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