Terms & Conditions

Updated 2024 – 12 – 09

The following conditions apply to all business undertaken by Roadworld Clearing and Forwarding (Pty) Ltd:

1. DEFINITIONS

• “Agreement” or “Contract”” means the terms and conditions contained herein, including any annexures, appendices and schedules attached hereto as well as any written addendums effected by the Parties in terms if the provisions of this agreement.
• “Bill of Lading” or “BL” means this document of title and/or receipt for shipped goods and/or contract between the Consignor and the Freight Forwarder which must accompany the shipped Goods at all times and must be signed by an authorised representative from the Consignor, FF and Consignee.
• “Carrier” includes the contracting carrier with whom the Freight Forwarder stipulates a contract of carriage and all carriers that carry or undertake the goods hereunder or perform any other service incidental to such carriage.
• “Confidential Information” means
  •            any information of whatsoever nature which has been obtained by the Parties, whether in writing or in electronic form, whether marked or identified as proprietary or not pursuant to discussion between the Parties; and
  •            the negotiations of and/or any disputes between the Parties relating to this Agreement.
• “Consignor” means the person who concludes the multimodal transport contract with the Freight Forwarder.
• “Consignee” means the person entitled to receive the goods from the Freight Forwarder.
• “Freight Forwarder” or “Clearing Agent” or “Company” or “FF” means the Multimodal Transport Operator, Agent of the Carrier and/or NVOCC who issues this Bill of Lading and is named on the face of it and does not assume liability for the performance of the multimodal transport contract as a carrier.
• “Goods” wherever used in these conditions shall mean any goods coming under the control of the FF on behalf of any Merchant and shall include any container, transportable tank, flat, pallet, package or other covering not supplied by or on behalf of the FF.
• “Merchant” means and includes the Shipper, the Consignor, the Consignee, the Holder of this BL, the Receiver and/or the Owner of the Goods.
• “Parties” shall mean the FF and the Merchant, or any one of them, as the context may indicate and includes “Party” or “Party’s”.
• “Signatory” shall mean the person or persons signing as Consignee or on behalf of a company, partnership or association of any kind whatsoever.
• “Taken in charge” means that the Goods have been handed over to and accepted for carriage by the FF at the place of receipt evidenced in this BL.

2. APPLICABILITY

• Notwithstanding the heading “HOUSE BILL OF LADING” (or otherwise nominated) these conditions shall also apply if more than one mode of transport is used.

3. ISSUANCE OF THIS BL

• By issuance of this BL, the FF undertakes, in its own name and on behalf of the Merchant, to procure through the designated Carriers the performance of the entire transport, from the place at which the Goods are Taken in Charge at the place of receipt evidenced in this BL, to the place of delivery designated in this BL. The FF assumes liability only as set out in these conditions.
• Subject to these conditions of this BL, the FF shall be responsible for the acts and omissions of its servants or agents acting within the scope of their employment, or any other person of whose services it makes use for the performance of the contract evidenced by the BL, as if such acts and omissions were its own.

4. NEGOTIABILITY AND TITLE TO THE GOODS

• This BL is issued in a negotiable form unless it is marked “non-negotiable.” It shall constitute title to the Goods and, by endorsement of this BL, the holder shall be entitled to receive or to transfer the Goods herein mentioned.
• The information in this BL shall be prima facie evidence of the Taking in Charge by the FF of the Goods as described by such information unless a contrary indication, such as “shipper’s weight, load and count,” “shipper packed container” or similar expressions, has been made in the printed text or superimposed on this BL. However, proof to the contrary shall not be admissible when the BL has been transferred to the Consignee for valuable consideration who in good faith has relied and acted thereon.

5. TERMS OF AGREEMENT

• The FF is not a common or public carrier. Its carriage is merely incidental to its clearing and forwarding operations and it may refuse to accept for carriage any goods or class of goods.
• All goods accepted by the FF are dealt with subject to the conditions stipulated by Carriers, warehousemen, Government Departments and all the parties into whose possession or custody the Goods may pass or subject to whose authority they may at any time be.
• All and any business undertaken, including any advice, information or service provided whether gratuitously or not by the FF is and shall be subject to the conditions hereinafter set out and each condition shall be deemed to be incorporated in and to be a condition of any agreement between the FF and its Merchant.
• No agent or employee of the FF has the FF’s authority to alter or vary these conditions either by an oral or written undertaking or promise given before or after receipt of these conditions, nor shall any act or omission of the FF be construed as a variation or waiver of any of these conditions.
• Quotations, where given, shall be on the basis of immediate acceptance and shall be subject to withdrawal or revision by the FF. Further, unless otherwise agreed in writing, the FF shall, notwithstanding acceptance, be at liberty to revise quotations or charges with or without notice, in the event of changes occurring in currency exchange rates, rates of freight, surcharges, insurance premiums, equipment rental rates, labor rates, or any other charges applicable to the handling of Goods.
• If any legislation becomes compulsorily applicable to any business undertaken, these conditions shall, as regards such business, be read as subject to such legislation and nothing in these conditions shall be construed as a surrender or relaxation by the FF of any of its rights or immunities or as an increase or encumbering of any of its responsibilities or liabilities under such legislation and if any part of these conditions be repugnant to such legislation to any extent such part shall as regards such business be void to that extent and no further.
• Goods shall be deemed to be delivered when they have been handed over or placed at the disposal of the Consignee or his agent in accordance with this BL or when the Goods have been handed over to any authority or other party to whom, pursuant to the law or regulation applicable at the place of delivery, the Goods must be handed over, or such other place at which the FF is entitled to call upon the Merchant to take delivery.
• The FF shall also be entitled to store the Goods at the sole risk of the Merchant, and the FF’s liability shall cease, and the cost of such storage shall be paid, upon demand, by the Merchant to the FF.
• If at any time the carriage under this BL is or is likely to be affected by any hindrance or risk of any kind (including the condition of the goods) not arising from any fault or neglect of the FF or a person referred to in Clause 2 and which cannot be avoided by the exercise of reasonable endeavors, the FF may abandon the carriage of the Goods under this BL and, where reasonably possible, place the Goods or any part of them at the Merchant’s disposal at any place which the FF may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of the FF in respect of such Goods shall cease. In any event, the FF shall be entitled to full freight under this BL and the Merchant shall pay any additional costs including detention and demurrage resulting from the above mentioned circumstances.
• Notwithstanding anything to the contrary in this BL the Merchant acknowledges that if, according to destination country laws and practices, the FF, its servant, agent or other person should have no control over the Goods’ release once discharged, the FF, its servant, agent or other person will not be responsible for any claim deriving from the delivery of the Goods without surrender of the BL.
• Unless notice of loss of or damage to the Goods, specifying the general nature of such loss or damage, is given in writing by the Consignee to the FF when the Goods are delivered to the Consignee in accordance with this clause, such handing over is prima facie evidence of the delivery by the FF of the Goods as described in this BL.
• Where the loss or damage is not apparent, the same prima facie effect shall apply if notice in writing is not given within 3 consecutive days after the day when the Goods were delivered to the Consignee in accordance with this clause.
• The FF shall, unless otherwise expressly agreed, be discharged of all liability under these conditions unless legal action is brought within 36 months after delivery of the Goods, or the date when the Goods should have been delivered, or the date when, in accordance with clause 10.5, failure to deliver the Goods would give the Consignee the right to treat the Goods as lost.

6. MERCHANT OBLIGATIONS

• Every Merchant engaging the FF to undertake business shall do so and shall be deemed to do so in every respect and in relation to all the terms of the transaction, including these conditions not only on his own behalf but also as an agent on behalf of:
  •            every person then owing or otherwise interested in any goods the subject of the transaction undertaken, and
  •            every person acquiring ownership of or any other interest in any such goods subsequent to the engagement of the FF and prior to the completion of the transaction undertaken.
• Every Merchant engaging the FF shall be deemed to have warranted that he or she either has the authority to engage the FF as owner of such Goods or as the authorised agent and on behalf of the persons referred to in clause 1.6 above.
• The senders, owners and Consignees of any Goods, and their agents, if any, shall be deemed to have indemnified the FF against all losses, damages, expenses and fines arising from any inaccuracy or omission, even if such inaccuracy or omission is not due to any negligence.
• The consignor shall be deemed to have guaranteed to the FF the accuracy at the time the Goods were Taken in Charge by the FF, of all particulars relating to the nature of the Goods, their marks, number, weight, volume and quantity and, if applicable, to the dangerous character of the Goods, as furnished by him or on his behalf for insertion on the BL. The Consignor shall indemnify the FF against all loss, damage and expense resulting from any inaccuracy or inadequacy of such particulars. The Consignor shall remain liable even if the BL has been transferred by him. The right of the FF to such an indemnity shall in no way limit his liability under this BL to any person other than the Consignor.
• The senders, owners and Consignees and their agents, if any, shall be liable for any duty, tax or outlays of whatsoever nature levied by the authorities at any port or place for or in connection with any Goods, and for any payments, fines, expenses, loss or damage incurred or sustained by the FF in connection herewith.
• Due to strict insurance requirements relating to service providers and brokers, it shall not be obligatory upon the FF to effect insurance on any Goods being handled or stored by it. The FF shall not be under any obligation to effect a separate insurance on each consignment. The Merchant is obliged to make any and all related insurance arrangements. Should the insurers dispute their liability for any reason, the insured shall have recourse against the insurers only and the FF shall not be under any responsibility or liability in relation thereto.
• Except where the FF is instructed in writing to pack the Goods, the Merchant warrants that all Goods have been properly and sufficiently packed and/or prepared.
• When Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the Consignee or any other person, the Merchant shall remain responsible for same if they are not paid by such Consignee or other person immediately when due.
• If accepted by the FF, instructions to collect payment on delivery (C.O.D.), in cash or otherwise, shall be subject to the condition that the FF in the matter of such collection will be liable for the exercise of reasonable diligence and care only.
• Notwithstanding any prior dealings between the FF and its Merchant, all documents and other matters (including cash, cheques, bank drafts and other remittances) sent to the FF through the post shall be deemed not to have been received by the FF unless and until they are actually received by the FF.

7. FREIGHT FORWARDER OBLIGATIONS AND DANGEROUS GOODS

• In all cases where there is a choice of tariff, rates or premiums offered by Carriers, warehousemen, underwriters, or others, depending upon the value declared or the extent of the liability assumed by the Carrier, warehousemen, underwriter or other person, it shall be in the sole discretion of the FF as to what declaration, if any, shall be made, what liability, if any, shall be imposed on the Carrier, warehousemen, underwriter or other person, unless express instructions in writing are timeously given by the Merchant.
• Without notice to the Merchant, the FF has the liberty to ship the Goods on or under deck and to choose or substitute the means, route and procedure to be followed in the handling, stowage, storage and transportation of the Goods.
• The FF shall be entitled, in the absence of express instructions to the contrary, to employ independent third parties to perform all or any of the functions required of the FF. Where such third parties are disclosed to the Merchant, the FF shall have no responsibility or liability to the Merchant for any act or omission of such third party, even though the FF may be responsible for the payments of such third party’s charges, but the FF shall, if suitable, be indemnified against all costs and take such action against the third party on the Merchant’s behalf as the Merchant may direct.  If the third party is not disclosed to the Merchant, then such third party shall, for the purpose of the FF’s responsibility to the Merchant, be deemed to be a servant of the FF.
• Perishable Goods which are not taken up immediately upon arrival, or which are insufficiently addressed or marked or otherwise not identifiable, may be sold or otherwise disposed of without any notice to the senders, owners or Consignees of the Goods, and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery.
• Non-perishable Goods which cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the Consignee may be sold or returned at the FF’s option at any time after the expiration of 21 (TWENTY ONE) days from a notice in writing sent to the address which the sender gave the FF on delivery of the Goods. All charges and expenses arising in connection with the sale or return of the Goods shall be paid by the Merchant. A communication from any agent or correspondent of the FF to the effect that Goods cannot be delivered for any reason shall be conclusive evidence of the fact.
• No Goods, including radio-active materials, which are or may become dangerous, inflammable or noxious, or which by their nature are or may become liable to cause injury or damage to any person, goods or property whatsoever, shall be tendered to the FF without its express consent in writing. The Goods or the container, package or other covering in which the Goods are to be tendered to the FF or its agents shall be prominently marked on the outside so as to indicate the nature and character of the Goods, and so as to comply with any applicable laws, regulations or requirements of any authority or Carrier.
• If any such Goods are tendered to the FF without its written consent or without being marked as aforesaid, the same may at any time be destroyed, disposed of, abandoned or rendered harmless at the sole discretion of the FF and at the entire risk and expense of the Merchant, without compensation to him, or to any other party, and without prejudice to the FF’s rights to its charges or fees including the cost of destruction or disposal.
• Notwithstanding the acceptance of the Goods with its express consent, the FF may nevertheless for good reason, such as the risk to other Goods, property, life or health, destroy or otherwise deal with the Goods at the entire risk and expense of the Merchant, without compensation to him or to any other party, and without prejudice to the FF’s right to its charges or fees including the cost of destruction or disposal.
• Whether or not the Merchant was aware of the nature of the Goods and whether or not the FF’s written acceptance thereof was obtained, the Merchant shall be deemed to have indemnified the FF against all loss, or liability caused to the FF as a result of the tender of the goods to the FF.
• The expression “goods liable to cause damage” shall include Goods likely to harbour or encourage vermin or other pests.
• The Merchant shall be responsible for compliance with all national law, International Convention and regulations relating to such Goods, as aforesaid, in force in any country or its territorial waters.
• The Merchant shall in any case inform the FF in writing of the exact nature of the danger, before Goods of a dangerous nature are Taken in Charge by the FF and indicate to it, if need be, the precautions to be taken.
• Pending forwarding and delivery, Goods may be warehoused or otherwise held at any place or places at the sole discretion of the FF at the Merchant’s risk and expense. The Goods shall, however, be subject to the special and general lien of the FF for the purposes of clause 9.9.
• The FF shall be under no obligation to make any declaration to or seek any special protection or cover from the South African Transport Services in respect of any Goods falling within the definition by the body:
  •      of dangerous or hazardous goods, or
  •      of goods liable to be stored in the open unless written instruction to that effect are given to the FF.
• The FF shall have no obligation to take any action in respect of any Goods which may be recognizable as belonging to its Merchants unless it has received suitable instructions relating to such Goods together with the necessary documents. In particular the FF shall not be obliged to notify its Merchant of the existence or whereabouts of the Goods or to examine them or to take any other steps for the identification, protection or preservation or for the preservation of any claim by their Merchant or any other party against the Carrier, insurer or any third party.
• Where it is necessary for an examination to be held or other action to be taken by the FF in respect of Goods being cleared by it which are landed from any vessel in a discrepant condition, no responsibility shall attach to the FF for any failure to hold such examination or take such other action unless the FF has been timeously advised by the landing agent that such Goods have been landed discrepant.
• Where, as a result of any action or omission by the FF, duty railage, wharfage, freight, cartage or any other impost or charge has been paid or levied, which should not have been paid or levied, or has been paid or levied in any incorrect amount, then any responsibility or liability to its Merchant which the FF may otherwise bear will cease and fall away if the Merchant 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 FF that an incorrect amount has been paid or levied, and
  •      do all such acts as are necessary to enable the FF to effect recovery of the amount overpaid having regard to the conditions required for such recovery. Provided that the Merchant is aware of the actual amount paid or levied, the fact that he may not be aware that such amount is incorrect shall not constitute a circumstance to be taken into account in calculating what is a reasonable time, nor shall such ignorance excuse any act or omission which may prejudice the FF’s right of recovery.
• In the absence of special instructions, it shall be in the entire discretion of the FF to decide at what time to perform any or all of the various acts which may be necessary for the completion of its service in relation to any particular matter. The FF shall have no liability or responsibility by virtue of the fact that there may be a change in the rates of duty, wharfage, freight, railage or cartage, or any other tariff, before or after the performance by the FF of any act involving a less favourable rate or tariff, or by virtue of the fact that a saving may have been effected in some other way had any act been performed at a different time.
• The FF shall under no circumstances be precluded from raising a debit in respect of any fee or disbursement lawfully due to it, notwithstanding the fact that a previous debit or debits (whether excluding or partly including the items now sought to be charged) had been raised and whether or not any notice was given that further debits were to follow.
• Wherever it is necessary, for the purpose of these conditions or any other purpose whatsoever, for instructions to be given to the FF, such instructions shall only be recognised by the FF as valid if timeously given, especially in relation to the matter in question, standing or general instruction, or instructions given late, even if received by the FF without comment, which shall not be binding upon the FF.

8. PARAMOUNT CLAUSES

• These conditions shall only take effect to the extent that they are not contrary to the mandatory provisions of International Conventions or national law applicable to the contract evidenced by this BL.
• The Hague Rules contained in the International Convention for the unification of certain rules relating to BL’s, dated Brussels Aug. 25th, 1924, or, in those countries where there are already in force, the HagueVisby Rules contained in the Protocol of Brussels, dated Feb. 23rd 1968, as enacted in the Country of Shipment, shall apply to all carriage of Goods by sea and also to the carriage of Goods by inland waterways and such provisions shall apply to all Goods whether carried on deck or under deck.
• The Carriage of Goods by Sea Act of the United States of America (COGSA) shall apply to the carriage of Goods by sea, whether on deck or under deck, if compulsorily applicable to this BL or would be applicable but, for the Goods being carried on deck, in accordance with a statement on this BL.

9. FEES AND OTHER PAYMENT OBLIGATIONS

• Freight shall be paid in cash, without any reduction or deferment on account of any claim, counterclaim or set-off, whether prepaid or payable at destination. Freight shall be considered as earned by the FF at the moment when the Goods have been Taken in Charge, and not to be returned in any event.
• Freight and all other amounts mentioned in this BL are to be paid in the currency named in this BL or, at the FF’s option, in the currency of the country of dispatch or destination at the highest rate of exchange for bankers sight bills current for prepaid freight on the day of dispatch and for freight payable at destination on the day when the Merchant is notified on arrival of the Goods there or on the date of withdrawal of the delivery order, whichever rate is higher, or at the option of the FF on the date of this BL.
• All dues, taxes and charges or other expenses in connection with the Goods shall be paid by the Merchant. Where equipment is supplied by the FF, the Merchant shall pay all demurrage, detention and charges which are not due to a fault or neglect of the FF.
• The Merchant shall reimburse the FF in proportion to the amount of freight for any costs for deviation or delay or any other increase of costs of whatever nature caused by war, warlike operations, epidemics, strikes, government directions or force majeure.
• The Merchant warrants the correctness of the declaration of contents, insurance, weight, measurements and value of the Goods but the FF has the liberty to have the contents inspected and the weight, measurements or value verified. If on such inspection it is found that the declaration is not correct it is agreed that a sum equal either to five times the difference between the correct figure and the freight charged, or to double the correct freight less the freight charged, whichever sum is the smaller, shall be payable as liquidated damages to the FF for its inspection costs and losses of freight on other Goods notwithstanding any other sum having been stated on this BL as freight payable.
• Despite the acceptance by the FF of instructions to collect freight, charges or other expenses from any other person in respect of the transport under this BL, the Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason.
• Unless otherwise specifically agreed by the FF all sums shall be paid to the FF in cash immediately upon presentation of account. All overdue accounts shall bear interest at the rate of 2% (TWO PERCENTUM) per month.
• The FF is entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to shipping and forwarding agents and insurance brokers and shall not be obliged to disclose or account to the Merchant or its principals for any such remuneration received by it from third parties.
• In relation to all Goods and documents relating to the Goods which come into the FF’s possession and control, the FF shall have a particular lien and general right of detention upon each of the Goods and documents for all amounts owing to the FF whether those amounts incurred to the FF before, during or after the Goods or documents came into the FF’s possession or control, or relate to other goods or documents. If any amount due to FF is not paid within one calendar month after notice has been given to the party from whom the amount is due that such Goods are being detained, the Goods and the documents that relate to the Goods may be sold at public or private sale without advertising or in such other manner as deemed appropriate by the FF with such sale being at the expense of such party that owes the amount to the FF. The net proceeds of such sale may be applied in or towards satisfaction of the indebtedness to the FF and the FF will not be liable for any deficiencies or reduction in value received on the sale of the Goods and the party responsible for the amount owing shall not be relieved from any liability, other than to the extent of the net proceeds realized from the sale, due to the sale of the Goods.
• Payments shall be made by the Merchant, free of exchange, to the FF at the FF’s address set out on the BL, or at such other address as the FF may from time to time so direct.

10. LIABILITY

• The FF shall not be liable for the performance of any transport, its responsibility being involved only in the stipulation with the Carrier of the contract of carriage in its own name, and on behalf of the Merchant. However, when and if its responsibility is involved, all the provisions herein regulating and limiting the Carrier’s liability shall apply to the benefit of the FF.
• The responsibility of the Carrier for the Goods under these conditions covers the period from the time the Carrier has taken the Goods in his charge to the time of their delivery.
• The Carrier shall be liable for loss of or damage to the Goods as well as for delay in delivery if the occurrence which caused the loss, damage or delay in delivery took place while the Goods are in his charge, as defined in Clause 3.1, unless the Carrier proves that no fault or neglect of his own, his servants or agents or any other person has caused or contributed to such loss, damage or delay. However, the Carrier shall only be liable for loss following from delay in delivery if the Consignor has made a declaration of interest in timely delivery which has been accepted by the Carrier and stated in this BL.
• Arrival times are not guaranteed by the Carrier. However, delay in delivery occurs when the Goods have not been delivered within the time expressly agreed upon or, in absence of such agreement, within the time which would be reasonable to require of a diligent Carrier, having regard to the circumstances of the case.
• If the Goods have not been delivered within ninety consecutive days following such date of delivery as determined in Clause 10.4, the claimant may, in the absence of evidence to the contrary, treat the Goods as lost.
• When the Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more causes or events, specified in this clause, it shall be presumed that it was so caused, always provided, however, that the claimant shall be entitled to prove that loss or damage was not, in fact, caused wholly or partly by one or more of such causes or events:
  • An Act or omission of the Merchant, or person other than the carrier acting on behalf of the Merchant or from whom the carrier Took the Goods in Charge;
  • Insufficiency or defective condition of the packaging or marks and/or numbers;
  • Handling, loading, stowage or unloading of the Goods by the Merchant or any person acting on behalf of the Merchant;
  • Inherent vice of the Goods; and/or
  • Strike, lockout, stoppage or restraint of labor.
• Defenses for carriage by sea or inland waterways: Notwithstanding Clauses 10.2, 10.3 and 10.4, the Carrier shall not be liable for loss, damage or delay in delivery with respect to Goods carried by sea or inland waterways when such loss, damage or delay during such carriage has been caused by:
  • Act, neglect, or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship; and/or
  • Fire, unless caused by the actual fault or privity of the Carrier, however, always provided that whenever loss or damage has resulted from unseaworthiness of the ship, the Carrier can prove that due diligence has been exercised to make the ship seaworthy at the commencement of the voyage.

11. INDEMNITY

• The Merchant shall indemnify the FF in respect of any claims of a General Average nature which may be made on him and shall provide such security as may be required by the FF in this connection.            
• In addition to and without prejudice to the foregoing conditions, the Merchant shall be deemed to have indemnified the FF against all liabilities whatsoever suffered or incurred by the FF arising directly or indirectly from or in connection with the Merchant’s instructions of their implementation in relation to the Goods and in particular in respect of any liability whatsoever it may be under to:
  • any servant, agent or sub-contractor or any haulier, carrier, warehouseman, or other person whatsoever at any time involved with the Goods arising out of any claim made directly or indirectly against any party by the Merchant or by any Consignor, Consignee or owner of the Goods or by any person interested in the Goods or by any other person whatsoever, or
  • any owner or Consignee of the Goods who is not the Merchant of the FF where the FF performs the service of a deconsolidation agent, or any other service, or
  • any Carrier of the Goods if the FF is the Consignor or Consignee of the Goods.
• The FF shall not be liable under any circumstances for any loss, damage or expense arising from or in any way connected with marks, weights, numbers, brands, contents, quality or description of any Goods.
• The FF shall not in any circumstances be liable for any loss or damage to Goods or for non-delivery or mis-delivery whether on grounds of breach of contract or negligence, unless it is proved that the loss, damage, non-delivery or mis-delivery occurred whilst the Goods were in the actual custody of the FF and under its actual control.
• Subject to the terms of this Agreement, the FF shall be under no liability whatsoever whether on grounds of breach of contract or negligence, in respect of any type of loss or damage, howsoever arising, and whether in respect of or in connection with any Goods or any instructions, business, advice, information or services or otherwise, unless it is proved that the loss or damage was caused by the willful act or intentional default of the FF or its own servants.
• Notwithstanding anything hereinbefore contained, the FF shall not, in any circumstances, be liable for damages arising from loss of market, or attributable to delay in forwarding or in transit, or failure to carry out the instructions given to it, or any other consequential loss, however caused.
• In no case shall the liability of the FF exceed the value of the Goods or the value declared by the Merchant for insurance, customs or carriage purposes, or the following respective amounts, whichever figure is the least:
  • Assessment of compensation for loss of or damage to the Goods shall be made by reference to the value of such Goods at the place and time they are delivered to the Consignee or at the place and time when, in accordance with this BL, they should have been so delivered;
  • The value of the Goods shall be determined according to the current commodity exchange price or, if there is no such price, according to the current market price or, if there are no such prices, by reference to the normal value of Goods of the same name and quality;
  • Subject to the provisions of sub clauses 11.7.3 to 11.8 inclusive, the FF shall in no event be or become liable for any loss of or damage to the Goods in an amount exceeding the equivalent of 666,67 Special Drawing Rights (SDR) per package or unit or 2 SDR per kilogram of gross weight of the Goods lost or damaged, whichever is the higher, unless the nature and value of the Goods shall have been declared by the Consignor and accepted by the FF before the Goods have been taken in its charge, or the ad valorem freight rate paid, and such value is stated in the BL by him, then such declared value shall be the limit;
  • Where a container, pallet or similar article of transport is loaded with more than one package or unit, the packages or other shipping units enumerated in the BL as packed in such article of transport are deemed packages or shipping units. Except as aforesaid, such article of transport shall be considered the package or unit. Notwithstanding the above mentioned provisions, if the multimodal transport does not, according to the contract, include carriage of Goods by sea or inland waterways, the liability of the FF shall be limited to an amount not exceeding 8.33 SDR per kilogram of gross weight of the Goods lost or damaged.
• When the loss of or damage to the Goods occurred during one particular stage of the multimodal transport, in respect of which an applicable International Convention or mandatory national law would have provided another limit of liability if a separate contract of carriage had been made for that particular stage of transport, then the limit of the FF’s liability for such loss or damage shall be determined by reference to the provisions of such convention or mandatory national law.
• Unless the nature and value of the Goods have been declared by the Merchant and inserted in this BL and the ad valorem freight rate paid, the liability of the Carrier, under COGSA where applicable, for any damage or loss shall paid out in the amount and according to manner chosen by the Carrier in its sole and absolute discretion.
• If the FF is liable in respect of loss following from delay in delivery, or consequential loss or damage other than loss of or damage to the Goods, the liability of the FF shall be limited to an amount not exceeding the equivalent of twice the freight under the multimodal contract for the multimodal transport under this BL.
• The aggregate liability of FF shall not exceed the limits of liability for total loss of the Goods.
• The FF is not entitled to the benefit of the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from a personal act or omission of the FF done with the intent to cause such loss, damage or delay or recklessly and with knowledge that such loss, damage or delay would probably result.
• If it is desired that the liability of the FF should not be governed by these limits, written notice thereof must be given to the FF before the Goods or documents are entrusted to the FF, together with a statement of the value of the Goods. The FF may agree to its liability being increased to a maximum amount equivalent to the amount stated in the notice, in which case it shall be entitled to effect special insurance to cover its maximum liability and the party giving the notice shall be deemed by so doing to have agreed and undertaken to pay to the FF the amount of the premium payable by the FF for such insurance.
• The FF shall not accept liability for the handling of any bullion, coins, precious stones, jewellery, valuables, antiques, pictures, bank notes, securities and other valuables, documents or articles, livestock or plants unless special arrangements have previously been made in writing. Should the Merchant nevertheless deliver any such Goods to the FF or cause the FF to handle or deal with any such Goods otherwise than under special arrangements previously made in writing, the FF, whether or not it is aware of the nature of the Goods, shall bear no liability whatsoever, for or in connection with any loss or damage to the Goods.

12. LEGAL COSTS

• The Merchant shall be liable for all expenses incurred by the FF in exercising any rights against him/her/it in respect of any breach of its obligations hereunder, including all legal charges on the attorney and own client scale, attorney/s collection charges and tracing fees, whether legal action has been instituted or not. The Merchant consents to the jurisdiction of the Magistrate’s Court in respect of any legal proceedings against it. Notwithstanding the aforegoing, the FF shall at its option be entitled to proceed in the High Court of the Republic of South Africa, Gauteng Division, in which case the FF shall be entitled to recover its costs on the High Court tariff, including costs on the scale as between attorney and own client.

13. DOMICILIUM CITANDI ET EXECUTANDI

• The Merchant chooses his domicillium citandi et executandi at the address reflected below for the purposes of the giving of any notice, the serving of any process and for any purpose arising from this Agreement. The FF shall, however, have the option of addressing any notice to the Merchant at the last address furnished to it. A notice sent by registered post shall be deemed to have been received by the Merchant on the third day after posting.

                        For the Freight Forwarder:

                        Name:

                        Email Address:

                        Physical Address:

                        For the Merchant:

                        Name:

                        Email Address:

                        Physical Address:         

• The parties shall be entitled from time to time by written notice to the other parties to vary their domicilium to any other address within the Republic of South Africa which is not a post office box.
• Any notice given in connection with this Agreement, may be delivered by hand, or be sent by pre-paid registered post to the domicilium chosen by the party concerned.
• Any notice or process delivered on any party shall be deemed to have been delivered if handed to any responsible person at the domicilium chosen by such party.
• Notwithstanding the provisions of this clause, a notice actually received by a party shall be deemed to have been received on the date of receipt thereof.

14. BREACH
    • Should any Party:
      • commit a breach of this Agreement (“the Breaching Party”); or
      • otherwise be in default of its obligations under or in terms of this Agreement; or
      • consistently breach any of the terms and conditions of this Agreement in a manner which is inconsistent with the intention or ability of the Breaching Party to comply with the provisions of this Agreement; or
      • have enforcement procedures/criminal action initiated against it (or its shareholders or directors); or
      • (or its shareholders or directors) have been involved in a public scandal that had seriously damaged its reputation; or
      • be placed under business rescue, judicial management or in liquidation, whether provisional or final; or
      • compromise or attempt to compromise any of its liabilities with its creditors generally or any class of its creditors,

            and thereafter:

• fail to remedy such breach within 14 (fourteen) days after receiving written notice from the other Party (“the Aggrieved Party”) requiring the Breaching Party to remedy such breach; or
• if the breach is of such a nature that it cannot be remedied within 14 (fourteen) days, the Breaching Party fails, after written notice, to commence remedying the breach or to complete the remedy expeditiously;

            then the Aggrieved Party shall be entitled to:

• remedy the breach itself and recover the costs thereof from the Breaching Party; or
• claim specific performance from the Breaching Party; or
• cancel this Agreement and claim damages from the Breaching Party, without incurring any liability to the Breaching Party for such damages due to such cancellation.
• The Aggrieved Party’s remedies in this clause are not exhaustive and shall be in addition and without prejudice to any other rights and/or remedies it might have, whether under this Agreement or at common law and the parties agree that the Breaching Party shall liable for all legal costs, including attorney and own client costs and collection commission, incurred by the Aggrieved Party in enforcing any of its rights under this Agreement.
• If a party has already received 2 (two) breach notices during any period of 12 (twelve) calendar months and then commits a further breach of any of its obligations in terms of this Agreement, whether such breach is related or unrelated to the previous breaches, then the Aggrieved Party will be entitled to cancel this Agreement without giving further notice to the Defaulting Party.
• The FF is entitled to terminate this Agreement with immediate effect and without notice, if the Merchant has defaulted, in whole or in part, with any of its payment obligations in excess of at least 60 (sixty) days.
• The Parties consider any misconduct as a material breach of this Agreement for which this Agreement so provides.

15. CONFIDENTIALTY
    • The Parties acknowledge that all information, facts and data received under this Agreement are considered to be Confidential Information.
    • The Parties irrevocably and unconditionally agree and undertake:
      • to treat and safeguard the Confidential Information as strictly private, secret and confidential;
      • to protect the Confidential Information by using the same degree of care, but no less than a high degree of care, to prevent the dissemination to third parties or publication of the Confidential Information as the Parties use to protect their own confidential information of a like nature;
      • not to use or permit the use of the Confidential Information for any purpose other than for the furtherance of the purpose of this Agreement and in particular not to use or permit the use of the Confidential Information whether directly or indirectly to obtain a commercial, trading, investment, financial or other advantage over the other Party or otherwise use it to the detriment of the other Party;
      • except as permitted by this Agreement, not to disclose or divulge, directly or indirectly, the Confidential Information in any manner to any third party for any reason or purpose whatsoever without the prior written consent of the other Party, which consent shall be in its sole and absolute discretion;
      • not to copy or reproduce the Confidential Information by any means without the prior written consent of the other Party, it being recorded that any such copies shall be and remain the property of the relevant Party; and
      • to keep all Confidential Information safe and secure and to take all such steps as may be reasonably necessary to protect it against theft, damage, loss, unauthorised access (including access by electronic means) and to prevent Confidential Information from falling into the hands of unauthorised third parties.

16. APPLICABILITY TO ACTIONS IN DELICT

• These conditions apply to all claims against the FF relating to the performance of the Contract evidenced by this BL, whether the claim be founded in contract or in delict.

17. LIABILITY OF SERVANTS AND OTHER PERSONS

• These conditions apply whenever claims relating to the performance of the Contract evidenced by this BL are made against any servant, agent or other person (including any independent contractor) whose services have been used in order to perform the Contract whether such claims are founded in contract or in delict, and the aggregate liability of the FF and of such servants agents or other persons shall not exceed the limits of clause 11.7.
• In entering into this Contract as evidenced by this BL, the FF, to the extent of these provisions, does not only act on its own behalf, but also as agent or trustee for such persons, and such persons shall to this extent be or be deemed to be parties to this Contract.
• However, if it is proved that the loss of or such loss or damage to the Goods resulted from a personal act or omission of such a person referred to in Clause 17.1, done with intent to cause damage, or recklessly and with knowledge that damage would probably result, such person shall not be entitled to benefit of limitation of liability provided for in clause 11.7.
• The aggregate of the amounts recoverable from the FF and the persons referred to in Clauses 3 and 17.1 shall not exceed the limits provided for in this Agreement.

18. MISCELLANEOUS PROVISIONS

• This Agreement constitutes the whole agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, warranty, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement will be binding on any of the Parties.
• Failure or delay on the part of any Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
• Neither this Agreement nor any part, share or interest therein nor any rights or obligations hereunder may be ceded, assigned or otherwise transferred without the prior written consent thereto of the other Parties, save as otherwise provided herein.
• This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement as at the date of signature of the Party last signing one of the counterparts.
• No alteration to, variation of, waiver of, addition to or mutual cancellation of this Agreement, including this clause, will be of any force or effect unless reduced to writing and signed by the parties to this Agreement.
• All the provisions of this Agreement will be severable and no provision will be affected by the invalidity of any other provision of this Agreement.
• This Agreement supersedes all other Agreements between the Parties relating to the subject matter herein.
• These conditions and all agreements made by the FF with its Merchants shall be governed and construed according to the laws of South Africa and shall be subject to the exclusive jurisdiction of South African Courts.
• In the event of the signatory signing on behalf of the company, partnership, firm or association of any kind whatsoever, then such person by his signature on behalf of the Merchant on the reverse side hereof, expressly also binds himself personally as surety and co-principal debtor in solidum in favour of the FF for all or any amounts which the Merchant may be indebted to the FF in respect of this Agreement. In this regard the person so signing, hereby expressly renounces the benefits of excussion and division, and of the exceptions “de duobus vel pluribus reis debeni”, and “non numeratae pecuniae” with which the person signing on behalf of the Merchant acknowledges himself to be fully acquainted.
• The signatory warrants that he has authority to contract with the FF in accordance herewith and the signatory hereby expressly indemnifies the FF and holds the FF harmless in respect of all or any claims which may be made against the FF by all or any persons whoever arising out of the FF’s fulfilling its obligations in terms of this Agreement.
• No act, omission, course of dealing, forbearance, delay or indulgence by the FF in enforcing any of these conditions in this Agreement or any granting of time by the FF shall prejudice or affect the rights and remedies of the FF under these conditions and no such matter shall be treated as any evidence of waiver of the FF’s rights hereunder nor shall any waiver of a breach by a Merchant of any one or more of these conditions operate as a waiver of any subsequent breach thereof. The FF shall at all times and without notice be entitled to insist on strict application of these conditions and on their strict enforcement on the Merchant.
• The Merchant hereby acknowledges that, to the extent that this Agreement falls under the Consumer Protection Act, he has been made aware of the implications, which have been explained to him, and his attention drawn to any and all conditions which may constitute waivers, indemnities and repudiation of liability on behalf of the FF. Any terms or conditions which may be found to be in conflict with the Consumer Protection Act will be regarded as pro non scripto (as if never written) and the custom or industry norm in such respect will apply relating directly to such instance and all remaining terms and conditions will remain of full force and effect.

Please download the Terms & Conditions here