MASTER TERMS AND CONDITIONS
OF OUTTRADER LTD
(“THE COMPANY”)
INTERPRETATION
The headings to the clauses are for reference purposes only and shall not be used to interpret the clauses to which they relate.
Unless the context clearly indicates otherwise, references to one gender shall include the other two genders, the singular includes the plural and vice versa, and all terms shall apply equally to natural persons, juristic persons and other associations.
“the Company” means the company referred to above, or if it exercises its right under clause 2, the member of the group in respect of which it exercises its rights.
“the Customer” means any person at whose request or on whose behalf the Company undertakes any business or provides any advice, information or services.
“the Group” means the Company and any company which is a holding company or subsidiary or fellow subsidiary or associate of the Company from time to time which may render services to the Customer in terms of Clause 2.
MEMBERS OF THE GROUP RENDERING SERVICES TO THE CUSTOMER
The Company may at its election perform all or any business undertaken or provide advice, information or services, whether gratuitous or not, either itself or it may procure that any member of the Group undertakes such business or provides such advice, information or services upon and subject to the terms and conditions contained herein which shall apply mutatis mutandis to the Customer and any such member of the Group.
APPLICATION OF TERMS AND CONDITIONS
All and any business undertaken or advice, information or services provided by the Company, whether gratuitous or not, is undertaken or provided subject to these trading terms and conditions.
APPLICABLE LEGISLATION
To the extent that any of these trading terms and conditions are repugnant to or in conflict with any law, they are deemed to be amended to comply with that law, and any such amendment shall not in any way affect the remaining provisions of these trading terms and conditions.
If any provision of these trading terms and conditions is unenforceable, then the Company shall be entitled to elect, at any time, that such provision shall be severed from the remaining provisions of these terms and conditions, so as to allow the remaining provisions to remain of full force and effect.
SYSTEM ACCESS
The Company provides the Customer with access to the import costing and transaction processing system/platform, known as Tradecloud, over the web together with data and order upload and integration facilities and support to enable the Customer to integrate, upload or capture its suppliers; products; and orders. Terms and conditions relating to and facilitating access and support of the system are included in the Master Trade Service Agreements entered into with the Customer.
The Company provides the Customer with access to status updates and reports as determined as best practice import supply chain information throughout the lifecycle of import trade transactions. The Company is not liable for any losses or claims resulting from the interpretation and use of such updates and reports.
PROVIDING PRODUCT COSTINGS
The Company utilizes a costing system to provide the Customer with a delivered cost per unit of product to be imported (“Pre-Order Costing”) and after BEING imported (Post-Delivered Costing”). The accuracy of the costings is dependent upon the accuracy of the information provided by the Customer, suppliers and service providers in the supply and delivery of the products to be imported. The Company is entitled to call for all and any required information from all parties involved in the process to enable accurate costings.
The Company accepts no liability for the inaccuracy of any costings as a result of any incorrect information provided or where costings are impacted by changes in circumstances or rates outside the control of the Company. The Company cannot be held responsible for consequential losses as a result of costings provided by it.
PROVIDING LOGISTICS SERVICES
For certain Customers the Company provides door to door logistics services in the movement of product imported by or for the Customer and in so doing the Company is entitled and appointed by the Customer to carry out these services in accordance with the Terms and Conditions as set out in the Trade Services agreement with the Customer.
TRADE FINANCE
The Customer may request and apply for import transactions to be financed by the Company or by funders arranged by the Company by providing the Company with a trade finance application and the information required by the Company to enable the Company to assess the financial position and credit worthiness of the Customer. The Company is entitled to disclose and utilize such information to liaise with providers of finance and of credit insurance. The Company undertakes to keep all such information confidential and secure commitments to similar confidentiality from the providers of finance and insurance.
The Company will endeavor to provide or arrange the trade finance in accordance with the Customer application and will revert to the Customer with the trade finance facility and key terms and conditions or will advise that trade finance is not available for the Customer.
The Company accepts no liability whatsoever and howsoever arising in respect of such trade finance, provided that should it be found that the Company in any way retains any obligation or responsibilities with regard to the performance of the provision of the trade finance facility, then the usual limitations of liability set out in these trading terms and conditions will apply.
FOREIGN EXCHANGE RATES AND COVER
The Company includes the impacts of conversion of foreign currencies to local currency in the costings provided to Customers for all costs to be paid in foreign currency. Customers may cover foreign exchange exposures themselves or alternatively the Company can appoint and arrange forward exchange cover with a foreign exchange service provider. In the event the Customer is not being provided trade finance but is self-funding it’s import transactions then the Customer may elect not to take forward exchange cover on the foreign currency components of their import transactions.
Where the Customer utilizes a trade finance facility then: forward
exchange cover is to be taken to cover all exposures to foreign exchange rates
movements.
INSURANCE
The Company shall endeavor to affect any insurance the Customer timeously and in writing requests it to effect, but the Customer accepts that in doing so the Company shall be obliged to comply with the Financial Advisory and Intermediary Services Act No. 37 of 2002 and may have to engage the services of a licensed financial services provider as defined in that Act, and the Customer authorizes the Company to instruct such a person on its behalf.
Any such insurance so effected will be subject to such exceptions and conditions as may be imposed by the insurance company or underwriter taking the risk and the Company shall not be obliged to obtain separate cover for any risks so excluded.
Unless otherwise agreed in writing, the Company shall not be under any obligation to obtain separate insurance in respect of separate consignments or shipments but may insure all or any of such consignments or shipments under any open or general policy held by the Company from time to time.
Should any insurer dispute its liability in terms of any insurance policy in respect of any Goods, the Customer concerned shall have recourse against such insurer only and the Company shall not have any responsibility or liability whatsoever in relation thereto.
Insofar as the Company agrees to arrange insurance; the Company acts solely as agent for and on behalf of the Customer.
COMPANY ENTITLED TO ACT AS AGENT OR PRINCIPAL IN CONTRACTING
With the consent of the Customer and in pursuance to providing supply chain services, the Company, in procuring logistics, trade finance, foreign exchange and other services may act either as agent for and on behalf of the Customer or as a principal.
The offer and acceptance of a fixed price for the accomplishment of any task shall not in itself determine whether such task is to be arranged by the Company acting as agent for and on behalf of the Customer or as a principal.
SUB–CONTRACTING
Any business entrusted by the Customer to the Company may, in the absolute discretion of the Company, be fulfilled by the Company itself, by its own servants performing part or all of the relevant services, or by the Company employing or entrusting the Goods or services to third parties on such conditions as may be stipulated by, or negotiated with, such third parties for the purposes of such services, or such part thereof as they may be employed to carry out.
Prior to proceeding with any import transaction the Customer may call for the names of the third parties to be employed by the Company.
Where the Company employs third parties to perform all or any of the functions which it has agreed to perform, the Customer agrees that the Company shall have no responsibility or liability to the Customer for any act or omission of such third party, even though the Company may be responsible for the payment of such third party charges; but the Company shall, if suitably indemnified against all costs (including attorney and own client costs) which may be incurred by or awarded against the Company, take such action against the third party on the Customer‘s behalf as the Customer may direct.
NO CLAIMS AGAINST INDIVIDUALS IN THEIR PERSONAL CAPACITIES
The Customer undertakes that no claims shall be made against any director, member, servant, employee or agent of the Company in their respective personal capacities which imposes or attempts to impose upon them any liability in connection with the rendering of any services which are the subject of these trading terms and conditions or any act or omission arising during the course and scope of their employment and hereby waives all and any such claims.
BENEFIT OF DISCOUNTS
The Company is entitled to the benefits of any discounts obtained from any authority, public or private entity, and to retain and be paid all brokerages, commissions, allowances, rebates and other remunerations or fees of whatsoever nature and kind and shall not be obliged to disclose or account to the Customer for any such amounts received or receivable by it.
INDEMNITY BY THE CUSTOMER
The Customer indemnifies and holds harmless the Company against all liability, damages, costs and expenses incurred or suffered by the Company arising directly or indirectly from or in connection with the Customer’s express or implied instructions or the implementation by or on behalf of or at the instance of the Company, or any act or omission within the discretion of the Company, in relation to any Goods and in respect of any liability whatsoever.
MONETARY LIMITATION OF LIABILITY OF THE COMPANY
If, despite the exclusion of liability in these trading terms and conditions, the Company is found to be liable, its liability shall not exceed whichever is the least of the following respective amounts:
The value of the Goods evidenced by the relevant documentation or declared by the Customer for Customs purposes or for any purpose connected with their transportation, including the value of the Goods declared for insurance purposes;
Double the amount of fees raised by the Company for its services in connection with the Goods, but excluding any amount payable to sub-contractors, agents and third parties;
The Company shall be discharged from all liability whatsoever in respect of any claim of whatsoever nature unless summons or other proper process originating action is served on the Company within one year of the date on which the incident giving rise to such cause of action occurred. The Company may, on written request, extend such period in writing.
BREACH
If the Company breaches any of these trading terms and conditions or any agreement between it and the Customer and fails to remedy such breach within 7 days of the date of receipt of written notice requiring it to do so then the Customer shall be entitled to compel performance by the Company of the obligations it has defaulted in, but shall not be entitled to cancel these trading terms and conditions and any agreement between the Customer and the Company.
SUBMISSION TO JURISDICTION
The parties agree that any legal action or proceedings arising out of or in connection with these trading terms and conditions shall be brought in the United Kingdom High Court, and the Customer hereby irrevocably submits to the non-exclusive jurisdiction of such court.
VARIATION OF THESE TRADING TERMS AND CONDITIONS
No variation of these trading terms and conditions, including this clause, shall be binding on the Company unless embodied in a written document signed by a duly authorised director of the Company. Any purported variation or alteration of these trading terms and conditions otherwise than as set out above shall be of no force and effect, whether such purported variation or alteration is written or oral, or takes place before or after receipt of these trading terms and conditions by the Customer.
NON WAIVER
No extension of time or waiver or relaxation of any of these trading terms and conditions shall operate as an estoppel against any party in respect of its rights under these trading terms and conditions, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with these trading terms and conditions.
GOVERNING LAW
These trading terms and conditions and all agreements entered into between the Company and the Customer pursuant thereto and on the terms thereof shall be governed by and construed in accordance with the laws of the United Kingdom.