Here is the revised version with smaller, bold headings instead of large headings.

SOUTH AFRICAN ASSOCIATION OF FREIGHT FORWARDERS

TRADING TERMS AND CONDITIONS

Adopted by: Breakthrough Solutions (Pty) Ltd

1. INTERPRETATION

In these trading terms and conditions:

• 1.1 Clause headings are included for reference purposes only and shall not assist in interpreting the clauses to which they relate.

• 1.2 Unless the context clearly indicates otherwise:

  • Words importing one gender include the other genders.

  • The singular includes the plural and vice versa.

  • References to natural persons include juristic or created entities.

• 1.3 The following terms shall have the meanings assigned to them:

  • 1.3.1 “The company” means Breakthrough Solutions (Pty) Ltd or, where it exercises its rights under clause 2, the relevant member of the group.

  • 1.3.2 “Customer” means any person at whose request, or on whose behalf, the company undertakes business or provides advice, information or services.

  • 1.3.3 “Goods” means:

    • Any goods handled, transported or dealt with by, on behalf of, or at the instance of the company.

    • Any goods that come under the control of the company or its agents, servants or nominees on the customer’s instructions.

    • Any container, transportable tank, flat, pallet, package, covering, packaging or equipment used in connection with the goods.

  • 1.3.4 “The group” means:

    • The company.

    • Any holding company or subsidiary of the company that may provide services to the customer under clause 2.

  • 1.3.5 “The owner” means:

    • The owner of the goods to which any business concluded under these terms relates.

    • Any person who has, or may acquire, a financial or other interest in the goods.

2. MEMBERS OF THE GROUP RENDERING SERVICES

The company may, at its election:

• Perform any business or provide any advice, information or services itself; or

• Arrange for another member of the group to undertake the business or provide the advice, information or services as principal.

These terms and conditions shall apply, with the necessary changes, between the customer and the relevant member of the group.

3. APPLICATION OF THESE TERMS

Subject to clause 5:

• All business undertaken by the company; and

• All advice, information or services provided by the company,

whether provided free of charge or for payment, shall be subject to these trading terms and conditions.

4. APPLICABLE LEGISLATION

• 4.1 If the company is required to comply with any common law or legislation in performing its duties or responsibilities, such compliance shall not constitute a waiver or abandonment of any rights under these terms.

• 4.2 Compliance with the law shall not mean that the company has assumed any additional obligation, responsibility, onus or liability in favour of the customer.

• 4.3 If any provision conflicts with applicable law:

  • The conflicting provision shall be deemed amended to comply with the law.

  • The remaining provisions shall remain unaffected and enforceable.

5. FIATA COMBINED TRANSPORT BILL OF LADING

The company may issue a FIATA Combined Transport Bill of Lading, referred to as an FBL, for all or part of a contract relating to the movement of goods.

Where an FBL is issued:

• These trading terms and conditions shall continue to apply.

• The FBL terms shall prevail only where they conflict with these terms.

• The company may charge an additional amount to cover the obligations arising from issuing the FBL.

6. EXCLUSION OF COMMON OR PUBLIC CARRIER OBLIGATIONS

The company deals with goods on the basis that it is:

• Not a common carrier; and

• Not a public carrier.

7. COMPANY’S DISCRETION IN THE ABSENCE OF INSTRUCTIONS

Where the customer has not provided specific, timely written instructions:

• 7.1 The company may reasonably decide when to perform, or arrange the performance of, any acts required to discharge its obligations.

• 7.2 The company shall have absolute discretion to determine:

  • The means used.

  • The route followed.

  • The procedures applied.

• 7.3 Where different tariffs, premiums or levels of liability are available, the company may determine:

  • What value declaration, if any, shall be made.

  • What liability, if any, shall be imposed on a carrier, warehouseman, underwriter or other person.

8. COMPANY’S GENERAL DISCRETION

• 8.1 The company may depart from the customer’s instructions if it considers such departure:

  • To be in the customer’s interests; or

  • To be in the public interest.

  The company shall not incur liability merely because it departed from the instructions in these circumstances.

• 8.2 If circumstances make the customer’s instructions impossible or impractical to follow:

  • The company shall take reasonable steps to inform the customer.

  • The company shall attempt to obtain further instructions.

  • If timely written instructions are not received, the company may, at the customer’s risk and expense:

    • Detain the goods.

    • Return the goods.

    • Store the goods.

    • Sell the goods.

    • Abandon the goods.

    • Destroy all or part of the goods.

9. INSURANCE

The company shall endeavour to arrange insurance only where the customer:

• Gives timely written instructions; and

• Clearly instructs the company to arrange the insurance.

Any insurance arranged shall:

• Be subject to the insurer’s or underwriter’s terms, exceptions and conditions.

• Not require the company to obtain separate cover for excluded risks.

• Not necessarily be arranged separately for each consignment.

• Potentially be arranged under an open or general policy held by the company.

If an insurer disputes liability:

• The customer shall have recourse against the insurer only.

• The company shall not be responsible or liable for the insurer’s decision.

• This applies even if the amount charged to the customer differs from the premium paid by the company.

When arranging insurance, the company acts solely as the customer’s agent.

10. COMPANY’S OBLIGATIONS IN THE ABSENCE OF INSTRUCTIONS

Unless timely written instructions are provided and accepted, the company shall not be obliged to:

• 10.1 Make declarations regarding:

  • The nature of the goods.

  • The value of the goods.

  • Any special interest in delivery.

  • Dangerous goods.

  • Goods requiring special handling or storage.

  • Any special protection or carrier liability required for the goods.

• 10.2 Arrange for particular goods to be:

  • Carried separately.

  • Stored separately.

  • Handled separately.

11. CUSTOMER’S UNDERTAKINGS AND WARRANTIES

11.1 Customer’s knowledge and disclosure obligations

The customer shall be deemed to have reasonable knowledge of:

• Its own business.

• The goods.

• The services required.

• The applicable terms of sale and purchase.

• All matters directly or indirectly related to the transaction.

The customer undertakes to provide the company with all relevant and necessary information.

11.2 Customer warranties

The customer warrants that:

• 11.2.1 Ownership or authority

  • It is the owner of the goods; or

  • It is properly authorised to act as the owner’s agent.

  • The owner and all relevant parties are bound by these terms.

• 11.2.2 Binding effect

  • The owner, sender, consignee and their agents are bound by these terms.

  • The company may enforce the customer’s liabilities jointly and severally against such parties.

  • The company may recover unpaid amounts from such parties after proper demand.

• 11.2.3 Accuracy of information

  • All information and instructions provided are accurate, true and complete.

  • All descriptions, values and particulars supplied for Customs, consular or other purposes are correct.

  • No necessary or relevant information shall be withheld.

  • The customer indemnifies the company against claims, losses, penalties, damages, expenses, fines, assessments or reassessments resulting from inaccurate or incomplete information.

• 11.2.4 Preparation and packaging

  • The goods are properly and appropriately:

    • Prepared.

    • Packed.

    • Stowed.

    • Labelled.

    • Marked.

  • The goods can withstand the normal risks associated with the relevant service or transport.

• 11.2.5 Transport units

  Where goods are carried in containers, trailers, flats, railway wagons, tanks or similar transport units, and the company has not agreed in writing to load the unit:

  • 11.2.5.1 The unit has been properly and competently loaded.

  • 11.2.5.2 The goods are suitable for carriage in or on the unit.

  • 11.2.5.3 The unit is suitable for the goods and complies with all relevant carrier and transport-authority requirements.

12. RECOVERY OF DEBTS

The company may recover amounts due in respect of instructions or contracts relating to goods from:

• The customer; or

• A disclosed or undisclosed principal where the customer acts as agent,

as the company considers appropriate in its absolute discretion.

13. COMPANY ACTING AS AGENT OR PRINCIPAL

• 13.1 Unless otherwise agreed in writing, the company may act:

  • As the customer’s agent; or

  • As principal,

  when arranging carriage, storage, packing or handling.

• 13.2 The quotation or acceptance of a fixed price does not determine whether the company acts as agent or principal.

• 13.3 When acting as agent, any contract entered into with a third party is concluded between:

  • The customer; and

  • The third party.

• 13.4 When acting as agent, the company may enter into any contract reasonably required to fulfil the customer’s instructions, including contracts for:

  • 13.4.1 Carriage by any route, means or person.

  • 13.4.2 Storage, packing, transport, shipping, loading, unloading or handling:

    • By any person.

    • At any place.

    • On shore or afloat.

    • For any period.

  • 13.4.3 Carriage or storage:

    • In break-bulk form.

    • In or on transport units.

    • With or without other goods.

14. SUBCONTRACTING

• 14.1 The company may fulfil any business entrusted to it:

  • Through its own employees.

  • Through third parties.

  • Through a combination of its own employees and third parties.

  • On terms negotiated or stipulated by such third parties.

• 14.2 Where third parties are employed:

  • The company shall not be liable for their acts or omissions.

  • This applies even where the company is responsible for paying their charges.

  • If the customer provides suitable indemnity against all costs, including attorney-and-client costs, the company may take action against the third party as directed by the customer.

15. TERMS OF AGENTS AND SUBCONTRACTORS

The customer agrees that the goods may be dealt with subject to the terms and conditions imposed by:

• Carriers.

• Warehousemen.

• Government departments.

• Agents.

• Subcontractors.

• Any other party into whose possession or custody the goods pass.

• Any authority to which the goods become subject.

Such terms may apply even where they are inconsistent with these trading terms and conditions.

16. GOODS REQUIRING SPECIAL ARRANGEMENTS

The company will not accept or deal with the following goods unless special written arrangements have been made beforehand:

• Bullion.

• Coins.

• Precious stones.

• Jewellery.

• Valuables.

• Antiques.

• Pictures or artwork.

• Human remains.

• Livestock.

• Plants.

If such goods are delivered without prior written arrangements:

• The company shall have no liability whatsoever in respect of them.

• This includes liability arising from negligent acts or omissions.

• Any claim shall remain subject to the applicable limitation and claims provisions in these terms.

17. GOODS REQUIRING PRIOR CONSENT

17.1 Prior written consent

The customer must obtain the company’s prior written consent before delivering goods that may be:

• Dangerous.

• Radioactive.

• Inflammable.

• Noxious.

• Harmful to persons, goods or property.

• Likely to taint or contaminate other goods.

• Likely to attract or harbour vermin or pests.

The customer warrants that:

• The goods and their packaging comply with all applicable laws, regulations and carrier requirements.

• The nature and characteristics of the goods are clearly marked on the outer packaging.

• All legally required information is prominently displayed.

17.2 Company’s rights regarding dangerous goods

If such goods are delivered, whether in breach of these terms or otherwise, the company may, where reasonably justified:

• Destroy them.

• Dispose of them.

• Abandon them.

• Render them harmless.

• Deal with them in another appropriate manner.

This shall be:

• At the customer’s risk and expense.

• Without compensation being payable to the customer or any other party.

• Without affecting the company’s right to recover charges, fees and disposal costs.

The customer indemnifies the company against all resulting loss, liability or damage.

18. PERISHABLE AND OTHER GOODS

18.1 Disposal or sale of goods

Goods in the company’s care, custody or control may be sold or disposed of at the customer’s expense and without notice where:

• 18.1.1 They have begun to deteriorate or are likely to deteriorate.

• 18.1.2 They are insufficiently addressed or marked.

• 18.1.3 The customer cannot be identified.

• 18.1.4 They have not been collected or accepted within 21 days after written notice.

Where the company has no address for the customer, the notice period shall not be required.

The payment or tender of the net sale proceeds, after deducting charges and expenses, shall be treated as delivery of the goods.

18.2 Sale of goods for unpaid amounts

Where an amount relating to the goods is due and remains unpaid, the company may, without obtaining a court order:

• Sell all or part of the goods by public auction; or

• Sell them by private treaty after reasonable notice not exceeding 14 days.

The net proceeds shall be applied:

• First, to the costs, charges and expenses of the sale.

• Thereafter, towards the customer’s outstanding obligations.

The customer shall remain liable for any shortfall.

Any excess remaining after all obligations and expenses have been paid shall be refunded to the customer.

19. FAILURE TO ACCEPT DELIVERY

If the customer, consignee or nominated party fails to accept delivery at the proper time and place:

• 19.1 The company may store all or part of the goods:

  • At the customer’s expense.

  • Without risk or liability to the company.

• 19.2 The applicable sale and disposal provisions shall apply with the necessary changes.

20. WAREHOUSING

Pending forwarding or delivery, the company may warehouse or hold the goods:

• At any place selected by the company.

• At the customer’s expense.

21. COLLECTION OF EXPENSES AND CASH ON DELIVERY

• 21.1 Where the company is instructed to collect freight, duties, charges or expenses from a consignee or another person:

  • The customer remains liable if the amount is not paid immediately when due.

• 21.2 Where the company accepts cash-on-delivery instructions:

  • It may assume the recipient will make payment.

  • It shall not be liable where a cheque or negotiable instrument is dishonoured or unpaid on the due date.

22. GOODS RECOGNISABLE AS THE CUSTOMER’S

The company has no obligation to take action regarding goods recognisable as belonging to the customer unless it receives:

• Suitable instructions; and

• All necessary documentation.

23. EXAMINATION OF LANDED GOODS

• 23.1 The company shall not be responsible for failing to examine goods or investigate discrepancies unless:

  • The landing or discharge agent informed the company in time that the goods had landed; and

  • The company was informed that a discrepancy existed.

• 23.2 The company shall not be responsible for examining or counting goods where they are:

  • Bundled.

  • Palletised.

  • Packed in a manner that prevents quick and easy counting.

If the company agrees to count such goods:

• It shall not be liable for errors or inaccuracies, whether negligent or otherwise.

• It may charge the customer for counting the goods.

24. DUTIES, TAXES, LEVIES AND DEPOSITS

• 24.1 The customer shall be liable for:

  • Duties.

  • Taxes.

  • Imposts.

  • Levies.

  • Deposits.

  • Outlays.

  • Fines.

  • Penalties.

  • Expenses.

  • Losses or damages.

This applies where such amounts are imposed by authorities, intermediaries or other parties in connection with the goods, regardless of whether they resulted from an act, instruction or omission of the sender, owner, consignee or their agents.

• 24.2 The company shall not be liable for:

  • Changes in duties or tariffs.

  • Changes in wharfage, freight, railage or cartage.

  • A failure to obtain a lower tariff.

  • A saving that might have been achieved had an act been performed at another time.

25. RECOVERY OF DUTIES OR CHARGES INCORRECTLY PAID

Where an incorrect amount of duty, tax, levy, railage, wharfage, freight, cartage or other charge has been paid or imposed, the company shall have no responsibility to the customer unless the customer:

• 25.1 Advises the company within a reasonable period, taking into account the period available to recover the overpayment.

• 25.2 Performs all acts necessary to enable the company to recover the incorrect payment.

The customer’s lack of knowledge of the incorrect payment shall not extend the reasonable period.

If the customer prejudices the company’s right of recovery through any act or omission, the customer shall be regarded as having failed to comply with this clause.

26. PAYMENT BY THE CUSTOMER

• 26.1 Unless otherwise agreed in writing:

  • All amounts are payable immediately upon presentation of the account.

  • Payment must be made without deduction or set-off.

  • Payment may not be withheld or delayed because of a claim or counterclaim.

• 26.2 The company may allocate money received from the customer to any undisputed debt in its sole discretion, regardless of any allocation requested by the customer.

27. ADDITIONAL FEES AND DISBURSEMENTS

The company may raise additional debits and recover further fees or disbursements even where:

• An earlier debit was issued.

• The earlier debit excluded or partly excluded the relevant amount.

• No notice was given that additional debits would follow.

28. RISK OF POSTED ITEMS

Documents, cash, cheques, bank drafts and other remittances sent by post shall be regarded as received only when they are actually received by the company.

29. QUOTATIONS

• 29.1 The company may cancel or withdraw from a quotation or executory agreement where performance at the quoted rate becomes:

  • Impractical; or

  • Uneconomical.

The customer shall have no claim for losses resulting from such cancellation or withdrawal.

• 29.2 Quotations and agreements may be revised due to:

  • Currency exchange-rate changes.

  • Freight increases.

  • Surcharges.

  • Insurance-premium increases.

  • Equipment-rental increases.

  • Labour-cost increases.

  • Other increased third-party charges.

Any adjustment shall correspond with the relevant exchange-rate change or cost increase.

Where the parties cannot agree on the increase:

• The company’s auditors, or auditors nominated by the company, shall determine it.

• The auditors shall act as experts and not arbitrators.

• Their determination shall be final and binding.

30. NO CLAIMS AGAINST DIRECTORS OR EMPLOYEES

The customer undertakes not to make claims against any:

• Director.

• Servant.

• Employee.

of the company in connection with services governed by these terms.

The customer waives all such claims.

31. CUSTOMER’S INSTRUCTIONS

The customer’s instructions must be:

• Precise.

• Clear.

• Comprehensive.

• Given in time.

• Specific to the particular matter.

Instructions should include any Customs valuation or determination relating to the goods.

The following shall not bind the company unless it elects to act on them:

• Oral instructions.

• Standing instructions.

• General instructions.

• Late instructions.

The company’s receipt of such instructions without comment shall not make them binding.

32. VARIATION OF THESE TERMS

No variation shall bind the company unless:

• It is contained in a written document; and

• It is signed by a duly authorised director of the company.

Any other purported amendment, whether oral or written and whether made before or after receipt of these terms, shall have no force or effect.

33. NON-WAIVER

No:

• Extension of time.

• Waiver.

• Relaxation.

• Indulgence.

shall prevent a party from later enforcing its rights strictly in accordance with these terms.

34. GOVERNING LAW

These terms and all agreements entered into under them shall be:

• Governed by; and

• Interpreted according to,

the laws of the Republic of South Africa.

35. JURISDICTION

Any legal proceedings arising from these terms shall be brought in the division of the High Court of South Africa having jurisdiction where the company’s head office is situated when proceedings commence.

The customer submits to the non-exclusive jurisdiction of that court.

36. DISCOUNTS, COMMISSIONS AND ALLOWANCES

The company shall be entitled to:

• Any discounts it obtains.

• Brokerages.

• Commissions.

• Allowances.

• Other remuneration.

The company shall not be obliged to disclose or account to the customer or principal for these amounts.

37. LIEN

The company shall have a special and general lien and pledge over:

• Goods.

• Documents relating to goods.

• Bills of lading.

• Import permits.

• Refunds.

• Repayments.

• Claims.

• Recoveries.

The lien may secure:

• Money due in respect of the relevant goods; or

• Any other money due to the company from the customer, sender, owner, consignee, importer, bill-of-lading holder or their agents.

If the money remains unpaid for 14 days after notice of detention:

• The company may sell the goods or documents by auction or another method.

• The company may dispose of them for value in its sole discretion.

• The sale or disposal shall be at the debtor’s expense.

• The net proceeds shall be applied towards the outstanding debt.

38. INDEMNITY BY THE CUSTOMER

The customer indemnifies and holds the company harmless against all liabilities, damages, costs and expenses arising directly or indirectly from:

• The customer’s express or implied instructions.

• The implementation of those instructions.

• Services relating to the goods.

This includes liability:

• 38.1 To any haulier, carrier, warehouseman or other person involved with the goods, arising from claims made by:

  • The customer.

  • A consignor.

  • A consignee.

  • The owner.

  • A person with an interest in the goods.

  • Any other person.

• 38.2 To an owner or consignee who is not the company’s customer where the company acts as:

  • A deconsolidation agent; or

  • A provider of another service.

• 38.3 To a carrier where the company is recorded as consignor or consignee.

• 38.4 In respect of dangerous or specially regulated goods referred to in these terms.

39. LIMITATION OF THE COMPANY’S LIABILITY

39.1 General exclusion of liability

Subject to the applicable liability provisions, the company shall not be liable for claims arising from:

• 39.1.1 Negligent acts, omissions or statements by the company or its servants, agents or nominees.

• 39.1.2 Acts or omissions of the customer or the customer’s agents.

• 39.1.3 Marking, labelling, numbering, non-delivery or misdelivery.

• 39.1.4 Weight, measurements, contents, quality, inherent vice, defects or descriptions of the goods.

• 39.1.5 Events beyond the company’s reasonable control, including:

  • Strikes.

  • Lockouts.

  • Work stoppages.

  • Labour restraints.

• 39.1.6 Loss of market, delay in forwarding, delay in transit or failure to carry out instructions.

• 39.1.7 Loss or non-delivery of:

  • A separate package forming part of a consignment.

  • Goods from a package.

  • Part of an unpacked consignment.

  • Goods that are damaged or misdelivered.

• 39.1.8 Damage or injury resulting from the company’s execution or attempted execution of the customer’s instructions, requirements or mandate.

Liability may arise only where:

• The claim results from a negligent act or omission by the company or its servants.

• The goods were in the company’s actual custody and control when the event occurred.

• Written notice is received:

  • Within five days after the end of transit where transit ends in South Africa.

  • Within 14 days after the end of transit where transit ends outside South Africa.

39.2 Consequential loss

The company shall not be liable for indirect or consequential loss arising from any act, omission or statement by the company, its agents, servants or nominees, whether negligent or otherwise.

40. MONETARY LIMITATION OF LIABILITY

Where the company is liable:

• 40.1 Its liability shall not exceed the lowest applicable amount permitted under these terms.

• 40.2 The actual value of the goods shall be calculated as:

  • The invoice value.

  • Plus freight, where paid.

  • Plus insurance, where paid.

  • Plus Customs duties or taxes incurred in respect of the goods.

• 40.3 The company’s total liability shall not exceed SDR 250,000 for any single event or series of events arising from a common cause.

• 40.4 Where the customer requires a higher liability limit:

  • Written notice must be given before the goods or documents are entrusted to the company, its agents or subcontractors.

  • The notice must state the value of the goods.

  • The company may agree in writing to increase its liability.

  • The company may arrange special insurance.

  • The customer shall be responsible for the related insurance premium.

41. GENERAL AVERAGE

The customer indemnifies the company against claims of a general-average nature.

The customer shall provide any security required by the company in connection with such claims.

42. BREACH

If the company breaches these terms or an agreement with the customer and fails to remedy the breach within 30 days after receiving written notice:

• The customer may compel the company to perform the outstanding obligation.

• The customer may not cancel these terms or the relevant agreement solely because of the breach.

43. WARRANTIES AND REPRESENTATIONS

The company makes no warranties or representations except those:

• Specifically contained in these terms; or

• Provided to the customer in writing.

The company shall not be bound by oral statements, representations, guarantees, promises, undertakings or inducements made by:

• Salespersons.

• Employees.

• Representatives.

• Persons claiming to act on the company’s behalf.

A statement shall bind the company only where it is:

• Made in writing.

• Made by an employee authorised by a written board resolution.

• Made in response to a written enquiry that accurately and fully specifies the information required.

44. DISPUTES

• 44.1 Where a dispute arises, the customer must continue performing its obligations as though the company had properly performed its own obligations.

• 44.2 After performing its obligations, the customer’s remedy shall be limited to claiming repayment of any amount alleged to have been overpaid.

• 44.3 The customer may not withhold payment because of a dispute regarding:

  • The company’s performance.

  • Alleged non-performance.

  • Any other matter.

The customer’s right to pursue a claim shall arise only after payment has been made.

• 44.4 In any dispute, the company shall be presumed to have:

  • Properly performed its obligations.

  • Performed its work in a workmanlike manner.

  • Complied with the relevant agreement.

This presumption shall apply until the customer proves otherwise.

45. TIME FOR PERFORMANCE BY THE CUSTOMER

Time is of the essence regarding the customer’s performance of all obligations owed to the company under any agreement governed by these terms.

46. SEVERABILITY

If any provision is found to be unenforceable:

• The company may elect to sever that provision.

• The remaining provisions shall remain unaffected.

• The remaining provisions shall continue in full force and effect.