1. DEFINITIONS 1.1 In these conditions the following words and expressions shall bear the meanings ascribed herein: 1.1.1 Act - Customs and Excise Act 91 of 1964 (as amended) and the Regulations made under the Act; 1.1.2 Agent - any person who represents a Shipper, Container Operator, Consignee or Consignor; 1.1.3 Approved Bill of Lading - a Bill of Lading which contains provisions limiting or excluding the issuer s liability and regulating the extension of the benefit of such limitation of liability to persons acting for and on behalf of the issuer; 1.1.4 Carrier - any person carrying any goods whether by rail, road, sea or air; 1.1.5 Conditions - these General Trading Conditions as amended or supplemented from time to time; 1.1.6 Consignee - a person to whom goods are to be delivered and including, without limitation, the Owner or an Agent or any persons in possession of the Original Delivery Release Order (DRO) relating to import goods; 1.1.7 Consignor - the person from whom goods originate and including, without limitation, a Shipper or the Owner or any Agent of those parties; 1.1.8 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; 1.1.9 Container Owner - the legal owner of a container, or any person bearing risk in and to a container including the right to claim compensation for loss of or damage to such container, including a Container Operator and the lessee of any container; 1.1.10 Container Operator - a Container Operator as defined in the Act, or any person who carries on the business of transporting containerised goods, or any ship owner, charterer, ship operator, carrier, shipbroker, freight forwarder, transport operator, from, on whose behalf, or at whose request or instruction ICS receives and containerises export goods and delivers such containerised goods or from whom or at whose instance or instruction ICS receives containerised import goods; 1.1.11 Container Trailer - a trailer constructed for the purpose of carrying containers; 1.1.12 Credit Application Form - ICS s standard application form for the granting of credit facilities as amended from time to time and in force for the time being; 1.1.13 Customer - any person at whose request or on whose behalf ICS undertakes or renders any service; 1.1.14 Dangerous Goods - goods which by reason of their nature, quantity or mode of storage either singularly or collectively are liable in ICS s reasonable opinion to endanger the lives or the health of persons or any property including but not restricted to container, ships, rolling stock vehicles, buildings and lifting equipment, as well as oil goods or goods defined as dangerous in the IMDG regulations or any statute, statutory instrument or order, any regulations made by any Government or other public authority or by any local by-law relating to the handling, storage or carriage of goods; 1.1.15 Delivery Release Order (DRO) - a document issued by or on behalf of a Container Operator in respect of LCL or FCL goods, or in respect of an FCL container, authorising in each case the release of import goods (or the container as the case may be) identified thereon and bearing the name and purporting to be signed by or bearing the stamp of the Container Operator, of, as the case may be to the Consignee; 1.1.16 Container Depot - a container depot operated by ICS for the purpose of handling and/or storing empty and/or full containers as defined in section 1 of the Act; Page 1 of 14
1.1.17 Export Goods - goods delivered to ICS for containerisation or despatch by other means with the ultimate destination outside the borders of the Republic of South Africa; 1.1.18 F.C.L. - Full Container Load, that is a container containing import or export goods, for one consignee which are shipped under one Ocean Bill of Lading; 1.1.19 Goods - any goods received under the control of ICS on behalf of any Customer and shall include any container, transportable tank, bolster, pallet, package or other covering not supplied by or on behalf of the Container Operator; 1.1.20 Import Goods - any goods delivered to ICS from any country outside the borders of the Republic of South Africa; 1.1.21 IMDG - International Maritime Dangerous Goods Code of the International Maritime Consultative Organisation; 1.1.22 ISO - International Organisation for Standards, Geneva Switzerland; 1.1.23 LCL Container - a container not being a FCL container; 1.1.24 LCL Goods - goods contained in a LCL container; 1.1.25 Market Value - the market value at the date of the loss of or damage to any item as determined in the case of an item other than goods, at the place where such loss or damage occurred, or in the case of goods at the place where ICS handled or packed the goods in question; 1.1.26 Obnoxious Goods - any of the following kinds of goods which are not included in the definition of dangerous goods, namely, goods defined as obnoxious in the IMDG regulations or any statute, statutory instrument or order or regulation made by any governmental or other public authority or by any local by-law relating to the handling, storage or carriage of goods, and including any other goods which in the reasonable opinion of ICS are possessed of inherent vice, likely to affect other goods adversely or to cause physical discomfort or injury to personnel handling them or to present any other special difficulties in handling or transport; 1.1.27 Owner - the legal owner of the goods; 1.1.28 Owner s Risk - the Container Operator, Owner, Agent, Shipper, Consignor or Consignee, or any other person at whose request or on whose behalf ICS handles such goods alone bears the risk of loss or damage or injury to person or property including, without limitation, goods, containers, carrying vehicles or vessels, rolling stock, loading or unloading equipment, whether directly or indirectly caused by the goods in question, howsoever and whensoever arising and whether or not caused by the negligence of ICS; 1.1.29 Person - natural person, statutory body, company incorporated in terms of the law in force at the place at which such company is incorporated, a firm, partnership, close corporation or association; 1.1.30 Precious Goods - goods or merchandise of high value or requiring special care including, without limiting the generality of the above, bullion, coins, precious stones, jewellery, antiques, pictures, paintings, works of art and similar goods or merchandise; 1.1.31 Shipper - the person whose name is shown on the Container Operator s shipping instruction as the Shipper and includes, without limitation, the Owner, or any other person to whom the risk in the goods may have passed either prior to or at the time of acceptance of the goods by ICS; 1.1.32 The Tariff - the Tariff published by ICS as amended from time to time and in force for the time being, or any alternative tariff agreed by ICS in writing. Copies of relevant Tariffs are available from ICS upon request; 1.1.33 ICS means Intermodal Cargo Solutions (Pty) Limited, hereinafter referred to as ICS. ICS shall include its servants or agents or sub-contractors acting within the course and scope of their employment with ICS; 1.1.34 Transnet - Transnet Limited and its wholly owned subsidiaries; Portnet, The National Port Authority, Transnet National Port Terminals and Spoornet, its servants and agents, all of whom are deemed to be the agents of the Container Page 2 of 14
Operator (or the Consignor in the case of Import goods) for all purposes hereunder; 1.2 The singular shall include the plural and vice versa and any reference to any one of the genders shall include a reference to the remaining gender. 1.3 Headings are inserted for convenience only and are not to be considered in construction of the provisions hereof. 1.4 In the Conditions, any reference to any service or services rendered or to be rendered by ICS shall be deemed a reference to any one or more of the services referred to in 3. 1.5 Whenever in the Conditions there is a reference to a Container Operator or to the obligation of a Container Operator, such reference shall be deemed to be a reference to the Container Operator from or on whose behalf ICS receives import or export goods or for, or on whose behalf it performs any service. 2. TARIFF AND CREDIT APPLICATION 2.1 The Tariff and Credit Application Form applies to all services conducted by ICS and to every person for, or on whose behalf, ICS receives goods or containers. 2.2 The Tariff and the Credit Application Form are subject to and are to be construed and applied in accordance with the provisions of the Conditions. 2.3 The Conditions shall prevail in the event of any conflict between the Conditions, the Tariff and the Credit Application Form. In addition ICS shall not be bound by any term or condition contained in the Tariff or the Credit Application Form which would in any way increase or have the effect of increasing ICS s liability or obligations beyond its liability or obligations as set out in the Conditions. 3. Subject to the Conditions, ICS provides the following services: 3.1 In respect of Import Goods: 3.1.1 receipt of containerised goods from Transnet or any other Agent of the Container Operator; 3.1.2 external inspection of container and recording of structural damages; 3.1.3 opening of a container for customs/department of health/ other statutory bodies purposes; 3.1.4 unpacking of containers; 3.1.5 delivery of goods to the person in physical possession of the original DRO and in the case of LCL goods, the original Customs Release Authorised Bill of Entry or any other Original Customs Release Authorised document; 3.1.6 goods storage; 3.1.7 removal of goods to State s Warehouse; 3.1.8 receiving, handling and checking of documents; 3.1.9 completion of discrepancy and damage reports; 3.1.10 provision of facilities for inspection of goods and containers by Consignee or its representative and Insurers, and Container Operator and it s Insurers; 3.1.11 repair of damaged packages discovered and reported to the Operator on the Container Content Discrepancy Report (C.C.D.R.) upon handling goods out of containers. Such repairs will be carried out on a fee negotiated and agreed with the Operator. 3.2 In respect of Export Goods: 3.2.1 receipt of written shipping/packing instructions; 3.2.2 issuing of a Goods Received Receipt in respect of the goods delivered for export handling; 3.2.3 receipt of goods in compliance with export goods delivery instructions; 3.2.4 outward examination of goods; 3.2.5 packing of containers; 3.2.6 closing and sealing of containers; 3.2.7 delivery of containers to Transnet or other Agents of a Container Operator; Page 3 of 14
3.2.8 preparing of load lists where requested; 3.2.9 obtaining receipts from Transnet or other Agents of a Container Operator; 3.2.10 storage of containers for export staging. 3.3 In respect of containers: 3.3.1 compliance with such provisions and obligations as are imposed on a Depot Operator in terms of section 44(58) of the Act; 3.3.2 tracking, inspection, cleaning and repairing of containers; 3.3.3 handling on and/or off transport vehicles/rail trucks; 3.3.4 stock monitoring and movement reporting; 3.3.5 storage of Empty and Full containers. 3.4 In respect of consolidations; 3.4.1 Receipt of goods for consolidation and arranging for onward transportation; 3.4.2 Issuing of load lists for goods thus consolidated; 4. QUOTATIONS 4.1 Quotations based on mass and measurement furnished by a Customer shall be subject to alteration in the event of actual mass and measurement proving different to those stated. Where necessary, ICS may delay the handling of a consignment until any dispute has been resolved. 4.2 Unless specified otherwise within the body of any quotation given by ICS reference to tonnage shall be deemed to refer to the greater of the mass or measurement. 4.3 The minimum tonnage shall be accepted as being either 1,000 kilograms or one cubic metre. 5. INSTRUCTIONS 5.1 Wherever it is necessary for the purpose of these Conditions or any other purpose whatever, for instructions to be given to ICS such instructions shall be recognised by ICS as valid only if timeously given specially in relation to the matter in question. Standing or general instructions or instructions given late, even if received by ICS without comment, shall not be binding upon ICS. 5.2 In addition, in order to render such instructions valid, they shall be either given in writing or if owing to the urgency of the situation it is not practicable to give same in writing, they shall be given orally and thereafter confirmed in writing as soon as reasonably practicable. 5.3 If at any stage in any transaction ICS should consider that there is a good reason, to make it advisable in the Customer s interest to depart from any of the Customer s instructions ICS shall be permitted to do so, and it shall not thereby incur any additional liability. 5.4 In the absence of written instructions ICS reserves to itself the absolute discretion as to the means, route and procedure to be followed in performing the services. 6. OWNER S RISK 6.1 Any act or service not specified in 3 or in the Tariff that ICS performs or undertakes to perform shall be at the Owner s Risk. 6.2 Any party on whose behalf any service at Owner s Risk is performed shall indemnify ICS against any loss or damage whatsoever and howsoever arising out of the performance of such service. 6.3 ICS shall be entitled to reasonable remuneration where a service is provided in terms of this clause and payment for such service is not specified in the Tariff, and in these Conditions, and any reference to any service or services rendered or to be rendered by ICS shall be deemed a reference to any one or more of the foregoing services. 7. INSURANCE Page 4 of 14
7.1 Should the Customer require insurance against any damage or loss to goods warehoused at ICS, the Customer shall be responsible to arrange its own insurance in this regard. ICS shall not be under any obligation to arrange such insurance on behalf of the Customer. 7.2 ICS may at its discretion arrange liability insurance in favour of ICS in respect of any liability that ICS may incur in terms of these conditions. 8. LOSS OR DAMAGE INDEMNITY Both the Owner and Container Operator jointly and severally indemnify ICS and hold it harmless, against all and any claims of whatsoever nature and howsoever arising, which may at any time be made against ICS, whether in contract or delict, in respect of loss, damage or injury arising out of any accident, incident or occurrence, howsoever caused, including without limiting the generality hereof, the negligence of ICS in relation to or directly or indirectly arising from or connected with goods owned by such Owner or Container Operator and, delivered to ICS by such Owner or by such Container Operator as the case may be. 9. LOSS OR DAMAGE LIABILITY 9.1 Notwithstanding anything to the contrary contained herein, ICS shall not be liable for any loss or damage whatsoever unless such loss or damage is caused by the breach of the Conditions, negligence of or any act of fraud committed by ICS or any of its servants, agents or subcontractors for whom it is vicariously liable. 9.2 For the purposes of this clause: 9.2.1 import goods shall be deemed to have been received by ICS when the container containing such goods passes through ICS s Depot doors; 9.2.2 an acknowledgement of receipt of any import goods, by ICS, shall not constitute an acknowledgement or admission in regard to the state or condition or quantity of such goods, nor as to the correctness of any statement on the relevant Container Terminal Order form or other transport document; 9.2.3 delivery by ICS of import goods shall be complete, and ICS shall have no further obligation or liability in respect thereof upon delivery thereof: 9.2.3.1 to the person in possession of the original DRO by placing the goods at the disposal of such person, at a Depot; or 9.2.3.2 in the event of ICS having agreed in terms of clause 3 hereof to arrange the onward carriage of any goods, to the carrier, if such goods are loaded by ICS in response to such request, the loading shall be solely at Owner s Risk. 9.2.4 export goods shall be deemed not to have been received by ICS until such goods have been off-loaded from the delivery vehicle at ICS s Depot; 9.2.5 an acknowledgement of receipt of any export goods by ICS shall be deemed not to be an acknowledgement or admission in regard to the state or condition or quantity of such goods, or as to the correctness of any statement on the relevant shipping instruction or other transport document; 9.2.6 ICS shall be deemed to have delivered such export goods at the moment in time when the Container Operator s Agent assumes control of the container trailer, or railway truck, on which ICS has placed a container, either by connecting a prime mover to such container trailer or coupling such railway truck to any other railway truck or locomotive: provided always that ICS shall not be responsible for securing containers to container trailers; any other loss arising directly or indirectly from any failure to secure container to container trailers shall be at Owner s Risk. 10. LOSS OR DAMAGE 10.1 Subject to the provisions of 10.2 and 14 below and due compliance with the provisions of 20 and 22 hereof, ICS hereby indemnifies Container Operators against all loss or damage which they suffer or for which they are liable arising out of any third party claim and which Page 5 of 14
is proved by such Container Operator to have been caused by breach of the Conditions by the negligent or intentional act of ICS or by any act or fraud committed by ICS provided that; 10.1.1 ICS s liability arising out of loss of, or damage to goods shall be no greater than the liability actually incurred by the Container Operator under an approved Bill of Lading; and 10.1.2 in the event of the limitation of liability provisions of such Bill of Lading not applying in respect of such loss or damage by reason of any default on the part of the Container Operator, then ICS s liability shall not exceed the liability which would have been incurred by the Container Operator had the said provisions applied; 10.1.3 in all other cases where such limitations of liability do not apply the liability of ICS shall not exceed the liability incurred by the Container Operator. 10.2 Notwithstanding anything to the contrary herein contained, the total overall liability of ICS to Container Operators in terms of this clause 10 shall not exceed the sum of R3, 000,000 (three million Rand) in respect of any one accident, incident or occurrence regardless of the nature, number and amount of claims arising out of such accident, incident or occurrence. 11. ICS S LIABILITY Where the liability of ICS does not fall to be determined under 10 above, then ICS s total liability in all other instances for any loss, damage or injury caused by its negligence or intentional act or that of its servants, agents or subcontractors for whom it is vicariously liable, or any act of fraud committed by such servant, agent or subcontractor for whom it is vicariously liable, shall not exceed the sum of R3,000,000 (three million Rand) in respect of any one accident, incident or occurrence, regardless of the nature, number and amount of claims arising out of such accident or occurrence, and in regard to the following matters in particular shall, subject always to the foregoing limitation, not exceed the lesser of; 11.1 In regard to goods: 11.1.1 the market value of goods in question less its market value in its damaged state; or 11.1.2 the fair and reasonable cost of repairing the damage to such goods; or 11.1.3 the limit of liability imposed in any Bill of Lading, combined transport document or any other document under which such container or goods was carried or to be carried even if such carriage had not yet commenced; or 11.1.4 the amount of ICS s fees earned in respect of the goods to which the claim relates; or 11.1.5 R 6,50 (six rand and fifty cents) per kg of goods lost or damaged. 11.2 In regard to containers, container trailers or prime movers: 11.2.1 the reasonable cost of repair thereof; or 11.2.2 the market value thereof at the date of such loss or damage in the event of total loss or damage beyond economic repair; provided that in relation to containers only, ICS shall have no liability for repair costs of less that R500 (five hundred Rand) per container; or 11.2.3 the amount of ICS s fees earned in respect of the containers, container trailers or prime movers to which the claim relates. 12. ICS S LIABILITY (TIMING) 12.1 ICS s liability arising out of its failure to deal timeously, or at, all with import goods, export goods or containers shall be limited to the actual loss thereby occasioned, and shall not in any event exceed the limits set out in 10 or 11 above, as the case may be. 12.2 Except as may specifically be provided in 10 above, ICS shall not under any circumstances whatsoever (including the negligence on its part or negligence or fraud on Page 6 of 14
the part of its servants, agents or subcontractors for whom it is vicariously liable) be liable for: 12.2.1 loss of market; 12.2.2 indirect or consequential damages, including, without limitation, the payment of any fines or penalties howsoever arising; 12.2.3 loss of profit; 12.2.4 loss or damage arising from any of the following save where ICS s negligence or intentional act was the proximate cause of such loss or damage; 12.2.4.1 storm, tempest, flood, lightning or other act of God; 12.2.4.2 fire, explosion, theft or any act done with malicious intent; 12.2.4.3 riots, strikes, civil commotion, acts of terrorism, civil war, the activity of any organization, individual or group of individuals or unit which has the planned objective of causing or bringing about such loss or damage in order to further a political cause, lockouts, stoppages or restraint of labour; 12.2.4.4 inherent liability to wastage in bulk or mass, latent defect or inherent defect, inherent vice, natural deterioration of goods, spontaneous combustion or defective packing; 12.2.4.5 any act or omission of the Container Operator, Owner, Consignor, Consignee, Shipper or their respective Agents; 12.2.4.6 the act or omission of a third party; 12.2.5 the delay or detention of goods or containers or carrying vehicles or vessels or container trailers or any loss, demurrage, dead freight, damage or deterioration arising therefrom. 13. ICS S AGENTS 13.1 Notwithstanding anything to the contrary contained in the Conditions, ICS shall be entitled to all the benefits, rights, immunities and limitations contained in Bills of Lading, combined transport documents or other documents and any statement in such documents to the effect that the benefits, rights, limitations and immunities in such documents and of the contracts of carriage pursuant to which such documents were issued, shall apply to any servant, agent or subcontractor of the person issuing such documents, and shall be deemed to include ICS. 13.2 ICS authorises every Container Operator for or on whose behalf it deals with goods or containers in any manner: 13.2.1 to act as ICS s Agent to contract on its behalf with all persons to whom Bills of Lading, combined transport documents or any other documents evidencing contracts of carriage are issued, in order to obtain for ICS the same benefits as those which accrue to Container Operators in terms of agreements evidenced by such documents, alternatively and/or in addition; 13.2.2 to act as ICS s agent to accept on its behalf the benefit of all provisions which accrue to the benefit of Container Operators in terms of Bills of Lading, combined transport documents or any other documents evidencing contracts of carriage and as stipulated in such documents. 13.3 Every Container Operator undertakes to contract on ICS s behalf with persons to whom Bills of Lading, combined transport documents or any other documents evidencing contracts of carriage are issued in one or both of the manners detailed in 13.2.1 and 13.2.2 to procure for ICS the same benefits as accrue to the Container Operator in terms of such documents. 13.4 Every Container Operator from or on whose behalf ICS receives import or export goods, undertakes to ICS that; 13.4.1 all import and export goods were or will be subject to a contract of carriage which shall include a provision reading (or having the same meaning) as follows; The Shipper, Holder, Consignee or any person entitled to possession of the goods or of this Bill of Lading undertakes that no claim or allegation shall be Page 7 of 14
made against any person or body whomsoever by whom the carriage or any part of the carriage is performed or undertaken (other than the carrier) which imposes or attempts to impose upon any such person or any vessel owned by any such person any liability whatsoever in connection with the goods whether or not arising out of negligence on the part of such person, and if any such claim or allegation should nevertheless be made to indemnify the carrier against all consequences thereof. Without prejudice to the foregoing every such person shall have the benefit of all provisions herein benefiting the carrier as if such provision were expressly for his benefit; and in entering into the contract, the carrier, to the extent of these provisions, does so not only on his own behalf but also as agent and trustee for such persons, and that accordingly every Bill of Lading, combined transport document or other document evidencing or purporting to evidence such contract of carriage shall contain the aforesaid paragraph or a paragraph having the aforesaid effect; 13.4.2 every receipt, delivery release order, delivery note or any similar document issued by or on behalf of a Container Operator shall contain a statement to the effect that ICS renders services in respect of such goods as are referred to in such documents as the Agent of the Container Operator and that the liability of ICS is limited in terms of the Conditions. 14. WARRANTIES BY AGENTS Every agent who deals with ICS warrants that it has authority to bind its principal to the Conditions. 15. PAYMENT 15.1 The Container Operator, or Consignor or Consignee, as the case may be, on whose behalf ICS receives or handles import or export goods is liable to ICS for payment of all amounts due to ICS for services rendered in respect thereof and such payment shall be made in accordance with the Tariff. 15.2 The Container Operator is obliged to pay all and any costs incurred by ICS in complying with all and any statutory requirements and regulations, notices and any requirements of a competent authority including movement, permanent removal or destruction of infested or contaminated containers or goods or the treatment of any infestation or contamination arising from such containers or goods. 15.3 The Container Operator indemnifies ICS against all and any claims against it for loss of or damage to property or injury to persons arising directly or indirectly from such infestation or contamination, except where attributable to the negligence of ICS or its servants. 16. LIEN AND PLEDGE 16.1 ICS shall have a special and general lien and pledge over all goods for which storage charges are due and in the event of non-payment of all monies due by the Customer or his agent to ICS within 3 (three) months after they become due, ICS shall be entitled, without prejudice to any other rights which ICS may have, and on notice to the Customer or Consignee: 16.1.1 to open and examine any part of the consignment; and 16.1.2 at the option of ICS, the whole or any part of the consignment may be sold, in order to enforce ICS s rights arising out of the pledge referred to above, either by public auction or by private treaty, and to apply the proceeds of any such sale, after deducting all expenses thereof, in payment of or towards any sum due by the Customer to ICS. 16.2 ICS shall pay over the surplus (if any) of the proceeds of such sale after application thereof in terms of clause 16.1.2 to the Customer; but shall otherwise be released from all liability in respect of the consignment. 16.3 Where ICS has, in accordance with the provisions of clause 16.1.2 sold part only of the consignment and the proceeds of such sale are sufficient to pay to ICS the amount Page 8 of 14
referred to in clause 16.1.2 the Customer shall be entitled to take delivery of the remainder of the consignment, provided that, if any storage charges remain unpaid by the Customer or his agent, such shall be recoverable by ICS in accordance with clause 16.1 above. 16.4 The Customer indemnifies ICS against any claims that may be instituted against ICS arising out of or as a result of any sale in terms of clause 16.1.2 above. 16.5 ICS shall be entitled to sell or dispose of all perishable goods in any circumstance: 16.5.1 where a Customer cannot be identified; or 16.5.2 where the goods cannot be delivered because they are insufficiently addressed; or 16.5.3 where the goods have not been collected or accepted by the Customer or any other authorised person; save that where ICS has an address for the Customer then sale or disposal shall be effected only after the expiration of 21 (twenty one) days from the posting to that address of written notice to do so. 16.6 All charges and expenses arising in connection with the storage and sale or disposal of the goods shall be for the account of the Customer. A communication from any agent or correspondence of ICS or from any third party referred to in clause 16.5.3 to the effect that the goods cannot be delivered for any reason shall be conclusive evidence of the fact. 17. COST RESPONSIBILITY The Container Operator, Shipper, Consignor, Consignee and Agent shall jointly and severally be liable to ICS for all costs, charges, expenses and damages howsoever incurred or suffered by ICS arising out of or incidental to the failure of particular goods to comply with the Conditions. 18. INFORMATION PROVISION 18.1 Every Container Operator, Shipper, Consignor, Consignee or Agent shall whenever called upon so to do by ICS, furnish to ICS such particulars of the goods, including mass, measurements, characteristics and description as ICS may reasonably require for the purpose of handling such goods. 18.2 ICS shall at all times be entitled to rely for all purposes whatsoever upon all particulars and information as are furnished in terms of this clause. 18.3 Without prejudice to the foregoing, the Container Operator, Shipper, Consignor, Consignee and Agent individually guarantee to ICS the accuracy of the following: 18.3.1 marks, numbers, mass, measurements and any other information shown on a container and any documentation pertaining to such container; 18.3.2 marks, numbers, mass, measurements, description of goods and packing, shown on all import and export goods' shipping documents. 18.4 In the event of any breach of the foregoing such goods or containers shall be handled at Owner s Risk and the Container Operator, Shipper, Consignor, Consignee or Agent hereby indemnify ICS against any loss or damage suffered by it as a result of any such breach. 19. GOODS MARKING 19.1 Goods must: 19.1.1 be clearly marked so as to render them readily identifiable with the export and import goods' shipping document; 19.1.2 be securely packed and sufficiently protected to withstand handling, both human and mechanical, containerisation, transport and delivery; 19.1.3 in the case of export goods, comply with the packing requirements of Transnet, Transnet National Ports Authority or Transnet National Port Terminals as prescribed in its Official Railway Tariff Book (or any amendment thereof), or in the National Ports Act 12 of 2005 or in any relevant regulation; 19.1.4 in the case of export goods, bear pictorial markings in compliance with the provisions of Transnet s, Transnet National Port Authority s or Transnet National Page 9 of 14
Port Terminal s Official Railway Tariff Book (or any amendment thereof), or the National Ports Act 12 of 2005 or any relevant regulation; and 19.1.5 be marked in compliance with the relevant IMDG regulations. 19.2 Services in respect of goods that do not comply with the provisions in 19.1 are at Owner s Risk. 19.3 When LCL goods are delivered to ICS packed for export, ICS is entitled, but not obliged, to open the package in order to ascertain the contents thereof, or to ascertain the nature and sufficiency of the packing, and to repack the goods. The cost of repackaging the goods shall be borne by the Container Operator on whose behalf ICS received such goods. 19.4 Notwithstanding the foregoing and whenever ICS conducts an external visual inspection of the container of goods ICS shall not be under any liability in respect of loss or damage resulting from any fact or state of affairs not ascertainable as a result of such external visual inspection. 19.5 Every container must be clearly marked so as to be readily identifiable with the Container Operator s container manifest, manifest of containers or any other document by which such container is intended to be identified. 19.6 ICS shall at all times be entitled but not obliged to inspect any goods and any container, and shall be entitled to refuse to accept any goods and any container whether packed or not which in its sole discretion appears in any way to be damaged or unsafe for handling, storage or carriage. 19.7 Notwithstanding the foregoing, every Container Operator warrants to and in favour of ICS the suitability and safety of every container and container trailer delivered to ICS by or on behalf of such Container Operator. 20. AMENDMENTS 20.1 ICS shall be entitled to amend or supplement its General Trading Conditions from time to time and whilst ICS will take reasonable steps to publicise amendments, its failure to do so shall not in any way prevent the amendment or supplement taking effect. 20.2 No variation to any of the terms and conditions set out herein will be valid unless reduced to writing and signed by a duly authorised representative of ICS. 21. AGENTS Carriers of export goods to the point of receipt by ICS, or of import goods to the point of receipt by ICS, or of import goods from the point of delivery by ICS, are in all instances and notwithstanding that ICS might have requested such carrier to carry goods, the Agent: 21.1 In the case of Export Goods: of 21.1.1 the Shipper, Consignor, Owner or Agent up to the point of receipt by ICS; 21.1.2 the Container Operator from the point of delivery by ICS. 21.2 In the case of Import Goods: of 21.2.1 the Container Operator in the case of LCL goods or the Consignee in the case of FCL goods, up to the point of receipt by ICS; 21.2.2 the Consignee, Owner, Agent or person in possession of the original DRO from the point of delivery by ICS. 22. CONTAINER OPERATOR INDEMNITIES 22.1 The Container Operator indemnifies ICS in respect of any claim which may be made against ICS by any person, other than a person in possession of the original DRO covering import goods, by reason of misdelivery of goods without negligence on the part of ICS. 22.2 The Container Operator warrants to, and in favour of ICS, that every container containing export goods shall at all times be carried on, lifted by and stored in vehicles, ships, lifting equipment and warehouses which, where the same are owned or operated by the Container Operator, will be entirely suitable for the safe, adequate and sufficient carriage, lifting and storage thereof and indemnifies ICS against all and any claims for loss of or Page 10 of 14
damage to property or injury to persons arising from the carriage, lifting or storage of such container in breach of such warranty. 23. CLAIMS 23.1 For the purpose of this paragraph: 23.1.1 Claimant shall mean any person making any claim including a recourse claim, against ICS arising out of the performance by it of its functions in terms of the Conditions; and 23.1.2 Recourse Claim shall mean a claim made against ICS where the Claimant seeks from ICS payment of or an indemnity in respect of the amount of a claim made against the Claimant by a third party. 23.2 All right of action by a Claimant against ICS for loss of or damage to property or injury to or the death of persons wheresoever and howsoever arising or in respect of Recourse Claims shall by effluxion of time lapse, and ICS s liability in respect of the cause of action giving rise to any such right of action shall be extinguished, unless summons or other proper process originating action is served on ICS by not later than 30 (thirty) days after the first anniversary of the date on which the incident giving rise to such cause of action occurred, provided further that ICS may on request extend such period. 23.3 Container Operators shall give ICS notice of all Recourse Claims within sixty (60) days of their becoming aware of such claims, failing which ICS s liability in respect of such claims shall be extinguished, interpreted as extending the prescription times contained therein. 23.4 The onus at all times shall be on the Claimant to prove compliance with the provisions of 23.2. 24. CONTRACT The immunities, indemnities, rights and limitations of liability both as to cause and amount enjoyed by ICS in terms of the Conditions, shall extend and apply to ICS s servants, agents and subcontractors acting within the course and scope of their employment as such, and in this regard the Conditions will operate as a contract for their benefit and shall be capable of acceptance by them at any time and whether before or after any cause of action may have arisen. 25. RULES FOR DANGEROUS AND OBNOXIOUS GOODS 25.1 The Container Operator and Shipper shall jointly and severally be responsible to ensure that dangerous goods tendered to ICS whether they be export or import goods, shall comply in all respects with: 25.1.1 the provisions of the following; The Merchant Shipping Act, 57 of 1951 and the Regulations thereto The Carriage of Goods by Sea Act, 1 of 1986 and any Regulations thereto The Explosives Act 26 of 1956 and the Regulations thereto The provisions contained in Transnet s Official Railway Tariff Book and any amendment thereto. 25.1.2 the IMDG code for the carriage of dangerous goods; 25.1.3 all provisions relating to the carriage of goods by road, rail, air or sea contained in any statutory enactment or Order or Regulation made pursuant to the above Acts or in any International Convention or Agreement or otherwise as well as any Regulations made by any government or other public or local authority. 25.2 Dangerous goods shall not be brought onto ICS s premises unless the permission in writing of ICS has first been obtained. The Container Operator or Consignor shall apply for permission on the correct form providing all such information as may be required by ICS in relation to such goods. The form of application may be obtained on request from ICS. 25.3 Any dangerous goods that arrive at ICS's premises without permission first being obtained as aforesaid may be refused entry. If goods are not correctly described to ICS by the Container Operator and are subsequently found to be dangerous goods, ICS Page 11 of 14
reserves the right to have them removed from its depot forthwith at the expense of the Container Operator. 25.4 The receptacle in which dangerous goods are packed must be suitable in material, type and manufacture to withstand the ordinary risks of handling and transport, and the packaging stipulated in Transnet s Official Tariff Book or in the IMDG Rules for the carriage of dangerous goods, shall be deemed to fulfil this requirement. 25.5 Packages or receptacles containing dangerous goods must be in sound condition and any found on examination to be of defective construction, damaged, leaking, corroded or with closures in an unsatisfactory condition, or defective in any other way, may at the discretion of ICS be refused for loading or unloading as the case may be or at any stage of ICS s operations, and the cost of removal of such refused dangerous goods shall be paid by the Container Operator. 25.6 All dangerous goods tendered to ICS for acceptance shall be clearly marked and labelled in such a manner as to comply with all relevant law relating to their marking including, but not limited to, the legislation, regulations, IMDG code and the provisions referred to in clause 25.1 above. 25.7 All poisonous substances, pesticides and narcotic drugs that are not described under any of the classes in the IMDG classification are to be declared under Class 6 as therein defined. Substances which have an indirect hazard to health, such as asbestos, are to be declared. 25.8 ICS reserves the right to refuse to handle obnoxious goods unless it has been consulted by the Container Operator or by the Consignor prior to the delivery of the goods to ICS for acceptance. ICS further reserves the right to approve the method of packing of such goods and to require special arrangements for their receipt, loading, unloading and/or transport as the case may be. Packages or receptacles containing dangerous goods as set out in 25.1 above and defectively packed obnoxious goods will be dealt with in the manner set out therein. 25.9 Notwithstanding anything to the contrary herein contained, ICS may, in its absolute discretion, decline to accept any dangerous or obnoxious goods tendered to it for acceptance without being obliged to provide any reason for such refusal, without prejudice and without in any way diminishing ICS s right in this regard. In the event of ICS accepting dangerous or obnoxious goods in relation to which do not comply with the enactment s set out in 25.1 hereof then such dangerous or obnoxious goods are carried at Owner s Risk. The Shipper, further indemnifies ICS against all loss or damage to its own property in any way caused by or arising out of such non-compliance. 25.10 The liability of ICS in relation to dangerous or obnoxious goods handled by it shall, both in relation to the nature of such liability and the amount thereof be limited to that set out above save to the extent of any greater limitations set out in this clause. 26. OPERATOR/CONSIGNOR RESPONSIBILITIES The Container Operator and Consignor, as the case may be, are responsible for ensuring that all goods entered to ICS for packing and/or unpacking comply with the provisions of 25 and hereby indemnify ICS against all claims for loss or damage to property or injury to persons arising out of any failure on their part to comply with the aforesaid provisions for dangerous and obnoxious goods. 27. PRECIOUS GOODS 27.1 Precious goods shall not be brought in to ICS s Depot without ICS s prior written permission. Precious goods will be handled by ICS only by special agreement and subject to the imposition of such terms and conditions as ICS may from time to time require. 27.2 Notwithstanding the foregoing, the limits of liability both in relation to cause and amount as set out in the Conditions shall apply to the handling by ICS of precious goods, save for any greater limitation as may specifically be imposed by ICS from time to time. 27.3 Precious goods that arrive at ICS's Depot without permission may be refused entry. Page 12 of 14
28. CONFORMITY TO LAW 28.1 The Conditions shall be governed by and construed in all respects in accordance with the laws of the Republic of South Africa, and the Courts of the Republic of South Africa shall have exclusive jurisdiction in regard to all disputes arising out of or in connection therewith and any question as to the interpretation, implementation or enforcement thereof. 28.2 Every person to whom the conditions apply hereby consents and submits to the exclusive jurisdiction of the High Court of the Republic of South Africa in regard to all or any actions or proceedings that may at any time be instituted by ICS in terms of the Conditions. 29. VALIDITY Each and every paragraph contained in the Conditions is severable from the others. If any paragraph is not enforced or enforceable for any reason, this will not affect the validity or enforceability of the others. 30. DOMICILIUM 30.1 The Container Operator, Consignor and Consignee hereby appoint the address as given on the Credit Application Form as their domicilium citandi et executandi for all purposes relating to the Conditions. 30.2 No variation of such domicilium shall be binding on ICS unless it receives written notification thereof under the signature of the Container Operator, Consignor or Consignee, as the case may be. 30.3 Notice shall be deemed to be validly given in terms hereof provided that it is sent to the physical address of the other party by hand, or sent to the physical address by prepaid registered mail, or sent to the telefax number by telefex or sent to the email address by email. In respect of notices where time is of the essence, these shall be sent either by telefax or by email. 30.4 A notice sent by one party to the other shall be deemed to be received: 30.4.1 on the same day, if delivered by hand; 30.4.2 on the 7 th (seventh) business day after the posting thereof, if sent by prepaid registered mail; 30.4.3 on the day after the date of being sent by telefax; 30.4.4 on the day after the date of being sent by email. 30.5 Notwithstanding anything to the contrary contained herein, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent or delivered to its chosen domicilium citandi et executandi. 31 FORCE MAJEURE 31.1 If either party (the affected party ) is prevented directly or indirectly from carrying out all or any of its obligations under this agreement from any cause whatsoever that is beyond the reasonable control of such party (including without limiting the generality of the aforegoing, any strike, lock-out, labour dispute, war, riot, civil commotion, insurrection, fire, explosion, floods, or regulation of any Government or other lawful authority or act of God), then the affected party shall be excused from performing such obligation(s) until the cause delaying, hindering or preventing the affected party from fulfilling such obligations no longer does so, provided that if such clause continues to delay, hinder or prevent performance for more than 30 continuous days, the other party may terminate this agreement by written notice. 31.2 The affected party envoking the force majeure shall: 31.2.1 give written notice to the other party of the circumstances giving rise to the force majeure as soon as soon as possible after becoming aware of the occurrence of circumstances in question; and Page 13 of 14
31.2.2 use commercially reasonable endeavours to bring the circumstances giving rise to the force majeure to an end as soon as possible and on termination thereof shall give written notice to the other party of the termination thereof. 32. BREACH 32.1 In the event that a party to this contract breaches any of its obligations in terms hereof, it shall be open to the non-defaulting party to give written notice to the defaulting party to remedy such breach within 14 (fourteen) days. 32.2 In the event that the defaulting party fails to remedy the breach within the period referred to in clause 32.1 above, the non-defaulting party shall be entitled to cancel the contract, and claim damages from the defaulting party, or to seek an order for specific performance. Page 14 of 14