Terms and Conditions

1. INTERPRETATION

   1. In these Terms and Conditions, unless clearly inconsistent with or otherwise indicated by the context:
      1. “Agreement” shall mean the Order read with these Terms and Conditions;
      2. “Agency fees” shall mean the fees charged by AMA to the Principal for Agency Services rendered by AMA to the Principal;
      3. “Agency Services” shall mean such services as may from time to time be required by the Principal to be rendered by AMA in respect of the Vessel and shall include, without limitation, the following services:
         1. arranging berths for the Vessel;
         2. providing for the entry and clearance of the Vessel;
         3. providing for the payment of port charges and any dues payable in respect of the Vessel;
         4. arranging for the supply of fuel, water, provisions and deck and engine room stores;
         5. arranging for any repairs required to be done to the Vessel;
         6. taking charge of and arranging solicitation and booking of cargo for the Vessel;
         7. issuing bills of lading and other similar documents to shippers in the form prescribed by the Principal;
         8. arranging for stevedoring and other cargo handling operations;
         9. arranging for the delivery of cargo in accordance with the bills of lading issued by, or on behalf, of the Principal;
         10. taking charge of and arranging solicitation of passengers for the Vessel;
         11. arranging the embarkation and disembarkation of passengers and their baggage;
         12. issuing passenger tickets;
         13. attending to all matters pertaining to the deployment of the crew on the Vessel, including, engaging, signing on, signing off and repatriating crew; and
         14. performing all such other activities and duties in connection with the aforegoing functions as may be necessary;
      4. “Business day” means any day of the week excluding Saturdays, Sundays and/or public holidays in the Republic of South Africa;
      5. “Cargo supervision fee” means the costs incurred by AMA to supervise cargo on behalf of the Principal;
      6. “Facility fee” means the costs of disbursing incurred by AMA on behalf of the Principal;
      7. “Finance fee” means the costs of financing incurred by AMA on behalf of the Principal;
      8. “Goods” means, inter alia, any machinery, equipment, apparatus, or other goods and/or related accessories required for AMA’s performance of the Agency Services;
      9. “Order” shall mean any order, whether verbal or in writing, received by AMA from the Principal its agents, representatives, servants or employees, for the provision of Agency Services, which order has been accepted by AMA and which order is governed by these Terms and Conditions;
      10. “Parties” means the Principal and AMA and “Party” means either of them as the context indicates;
      11. “Prime Rate” shall mean the prime rate of interest quoted publicly by Standard Bank of South Africa Limited from time to time, which rate may be proved by a certificate signed by any officer of that bank, whose appointment and authority it shall not be necessary to prove, and which certificate shall constitute prima facie proof of the contents thereof;
      12. “Principal” shall mean the person who places an Order for the provision of Agency Services, irrespective of whether the Order is placed by the person for whom Agency Services are to be rendered, or by such person’s employees, servants or agents;
      13. “Standard tariff” means AMA’s predetermined fees applicable to all services rendered by it, as revised annually and/or amended from time to time;
      14. “Supplier” shall mean any person with whom AMA transacts any business for purposes
          of rendering the Agency Services to the Principal, and shall include, but not be limited to: ship chandlers, vendors of all types of goods, repairers, suppliers of goods and services of whatsoever nature in respect of the Vessel, other ships’ agents or brokers, importers and exporters, and port and other authorities in the Republic of South Africa;
      15. “Terms and Conditions” shall mean the terms and conditions recorded herein;
      16. “Vessel” shall mean a ship owned, operated, managed or chartered by the Principal and includes the Principal, the Principal’s representatives and the Master of the Vessel;
      17. “AMA” shall mean AMA Shipping Services (Proprietary) Limited (registration number 2015/014957/07) a private company with limited liability, duly incorporated in accordance with the company laws of the Republic of South Africa;
   2. Where applicable, the provisions of 1.1 shall impose substantive obligations on the Parties as provided in the provision concerned.
   3. In these Terms and Conditions words and expressions importing the masculine gender shall include the feminine and neuter genders and visa versa; the singular shall include the plural and visa versa, and natural persons shall include artificial persons and visa versa.
   4. The clause headings in these Terms and Conditions have been inserted for convenience only and shall not be taken into account in its interpretation.
   5. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
   6. No provision of these Terms and Conditions shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having, or being deemed to have, structured or drafted such provision.
   7. The eiusdem generis rule shall not apply and whenever the term “including” is used followed by specific examples, such examples shall not be construed so as to limit the meaning of that term.
   8. When these Terms and Conditions prescribe any number of days, such days must be reckoned exclusively of the first and inclusively of the last day. If the last day falls on a day that is not a business day, it will be deemed to fall on the next business day.
   9. These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa and the Principal consents to the jurisdiction of the High Court.

 

2. APPOINTMENT

   1. The Principal hereby appoints AMA to act as its agent in the Republic of South Africa for purposes of performing the Agency Services, and AMA hereby accepts such appointment, on the Terms and Conditions contained herein.
   2. The Order and these Terms and Conditions constitute a binding agreement between the Principal and AMA, and this Agreement shall terminate upon both parties having discharged all their obligations in terms of this Agreement, unless otherwise provided for in terms hereof.
   3. The Principal accepts and agrees to be bound by these Terms and Conditions on placing an Order with AMA for the Agency Services.

 

3. SCOPE OF AMA’s AUTHORITY

   1. AMA shall provide such Agency Services as are required by the Principal in terms of the Order and AMA may provide such additional Agency Services as AMA in its sole and absolute discretion deems necessary, expedient and in the interests of the Principal.
   2. All Agency Services provided by AMA as contemplated by 3.1, and the terms and conditions upon which such Agency Services are provided, shall, at all times, be deemed to have been specifically authorised and approved by the Principal.
   3. The Principal’s instructions to AMA shall be precise, unambiguous and comprehensive in all respects. Instructions given by the Principal to AMA shall be recognised by AMA as valid only if given timeously and in writing. Oral, standing and general instructions and instructions which are not given timeously, even if such instructions are received by AMA without comment, shall not, in any way, be binding upon AMA, provided that AMA may act on such instructions as AMA, in its sole and absolute discretion, deems fit.
   4. Notwithstanding anything to the contrary contained in these Terms and Conditions, if at any time AMA considers it to be in the Principal’s interests, or in the public interest, to depart from any of the Principal’s instructions (or any part thereof), AMA shall be entitled, insofar as such departure is reasonable, to depart therefrom and shall not incur any liability in consequence of doing so.
   5. AMA shall be entitled to engage the services of a Supplier to perform the Agency Services (or any part thereof) and any such Supplier shall be deemed to be an independent contractor appointed by the Principal, and not a servant of AMA.

 

4. DURATION

   The agreement recorded in these Terms and Conditions shall commence on the date of acceptance of the Order by AMA and shall, unless terminated earlier in accordance with the provisions of 15 or 17, endure indefinitely.

 

5. REMUNERATION OF AMA

   1. Fees

      1. The Principal shall pay to AMA the Agency fees (and/or Facility fee and/or Finance fee and/or Cargo Supervision fee, whichever is applicable) as set out in AMA’s Standard Tariff (as amended from time to time) or otherwise agreed between AMA and the Principal, for the Agency Services rendered by AMA. In the event of there being no written confirmation as to the Agency fees (and/or Facility fee and/or Finance fee and/or Cargo Supervision fee) to be charged by AMA, or in the event of a particular Agency Service not being provided for in these Terms and Conditions or otherwise, the Principal shall pay to AMA the fees contained in AMA’s Standard Tariff, as amended from time to time.
      2. The Principal shall be liable for, and shall pay to AMA, all costs and expenses incurred by AMA, including the fees referred to in 5.1.1, in providing the Agency Services at the request or on the instruction of the Principal itself, the master of the Vessel, the office of the Principal or its agents, nominees, representatives or servants, howsoever communicated to AMA and notwithstanding the fact that any such persons may have exceeded their authority in requesting or instructing the provision of the Agency Services.
      3. The Principal shall reimburse AMA for all costs and expenses incurred by AMA in respect of the receipt of currency from the Principal, or the remittance of currency to, or on behalf of, the Principal.
      4. AMA shall be entitled to withhold performance of the Agency Services for as long as the Principal is in default of the provisions of these Terms and Conditions.

   2. Disbursements

      1. AMA shall not be obliged to make any disbursement whatsoever on behalf of the Principal until such time as:
         1. AMA has been paid all amounts then due by the Principal to AMA in respect of the provision of the Agency Services by AMA; and
         2. AMA has received sufficient funds for purposes of paying the particular disbursement, and shall not be in default of its obligations by failing to make such payment.

   3. Security

      AMA may, at any time, require the Principal to furnish security for the payment of such amounts as
      are, or will become, due to AMA by the Principal in connection with the performance of the Agency Services, and for the due reimbursement of disbursements made, or to be made, by AMA on behalf of the Principal.

   4. Joint and several liability

      In the event of AMA providing Agency Services at the request of both the owner and the charterer of a Vessel, the owner and charterer shall incur joint and several liability in respect of the remuneration of AMA as contemplated by this 5.4 on the basis set out in 5.1.1. Similarly, if any charterparty applicable to the Vessel provides that the agent appointed by the charterer of the Vessel is the Vessel’s agent, the charterer and the owner of the Vessel shall be jointly and severably liable to AMA for the payment of AMA’S fees and any costs and expenses incurred by AMA on their behalf, as if each of them were a Principal under these Terms and Conditions, and AMA shall be entitled to claim from either the charterer or the owner or both, as AMA, in its sole and absolute discretion, deems fit.

   5. Credit facilities

      AMA reserves the right, at any time, to summarily cancel any credit facilities granted to the Principal pursuant to the performance of the Agency Services. In the event of AMA exercising its rights in terms of this 5.5, all amounts then due and owing to AMA by the Principal shall immediately become due and payable on demand.

 

6. PAYMENT BY PRINCIPAL

   1. Unless otherwise specifically agreed between the Principal and AMA in writing, the Principal shall pay to AMA in cash and immediately upon presentation of invoice, all sums due to AMA.
   2. Notwithstanding the provisions of 6.1 above, AMA shall at its sole discretion be entitled to request the Principal to make an advance payment(s) to AMA for the provision of any Agency Services, such which AMA may at its sole discretion set off against any invoices subsequently issued to the Principal.
   3. All payments made by the Principal to AMA in terms of these Terms and Conditions shall be made free of set-off, bank charges, bank exchange charges, foreign bank charges when effecting payment to AMA from a foreign bank account, commission or any other deduction, and the Principal shall not have the right to defer, adjust or withhold any payment due to AMA in terms of or arising out of these Terms and Conditions, or to obtain deferment of judgment for such amounts or any execution of such judgment by reason of any set-off or counterclaim of whatsoever nature or howsoever arising.
   4. All and any monies received by AMA from the Principal shall be appropriated by AMA, in its sole and absolute discretion, to any indebtedness owing by the Principal to AMA, notwithstanding that the Principal may, when making payment, seek to appropriate the payment so made to any particular debt or portion of a debt.
   5. Notwithstanding the provisions of 6.1 and 6.2 above, AMA shall at its sole discretion be entitled to extend credit terms to the Principal.
   6. Save to the extent otherwise provided, all amounts due by the Principal to AMA (including damages) in terms of or arising out of the Order and/or these Terms and Conditions shall, unless paid on due date, bear interest from the due date to date of final payment. Such interest shall be:
      1. calculated at the Prime Rate plus 6% (six per centum) per annum; and
      2. capitalised monthly in arrears on the balance due.

 

7. QUOTATIONS AND ESTIMATES

   1. AMA shall be entitled, at any time and on 48 (forty-eight) hours written notice to the Principal, to cancel or resile from the Agreement in circumstances where it becomes impracticable or uneconomical for AMA, in its sole and absolute discretion, to perform in terms of the Agreement at the quoted or estimated rate, and the Principal shall have no claim whatsoever against AMA for any loss that the Principal may incur as a result of AMA cancelling or resiling from the Agreement.
   2. Without in any way limiting the provisions of 7.1, all quotations or estimates in respect of enquiries by the Principal or a prospective Principal are subject to revision on 48 (forty-eight) hours’ written notice, having regard to changes in currency exchange rates and increases in amounts payable by, or on behalf of, or at the instance of AMA to third Parties including, without limitation: freight, surcharges, insurance premiums, equipment rental and labour charges, where such changes and increases take place after quotation. Any revision of a quotation or estimate in respect of enquiries by the Principal or a prospective Principal shall be commensurate with the change in the currency exchange rate or the increase in the amounts payable (as the case may be). Any such change and/or increase shall, failing agreement between the Parties, be determined by the auditors for the time being of AMA, or any other suitably qualified auditors nominated by AMA, who, in such determination, shall act as experts and not as arbitrators, and whose decision shall be final and binding on the Parties.

 

8. GUARANTEES BY AMA

   If AMA, by reason of legislation or the requirement of a competent authority, is obliged to guarantee or secure the fulfilment of the Principal’s obligations, the Principal hereby indemnifies AMA, in accordance with the provisions of 12, in respect of such guarantee or security and the Principal shall, prior to the furnishing of such guarantee or security by AMA, pay the estimated amounts to AMA, calculated on the maximum amount of any loss AMA may sustain where any such guarantee or security is acted upon.

 

9. LIABILITY OF AMA

   1. AMA shall not be liable for any consequential loss and shall only be liable in respect of any direct damage or loss incurred by the Principal and/or a Supplier as a result of a default by AMA in providing the Agency Services where:
      1. such damage or loss has been caused by the wilful default or gross negligence of AMA; and
      2. such claim arises at a time when the Goods in question are in the custody of AMA and under its control.
   2. In the event that AMA elects not to refer any claim by the Principal, which claim AMA disputes, to arbitration for determination and, in the further event of the Principal failing to prosecute the claim as envisaged in Section 15(1) of the Prescription Act 68 of 1969 within one year from the date on which the damage or loss occurred, such claim shall be deemed to have been extinguished by effluxion of time.
   3. Notwithstanding anything to the contrary contained in these Terms and Conditions, the liability of AMA to the Principal shall, at all times, be limited to payment of R10 000.00 (ten thousand rand) in respect of any one voyage undertaken by the Vessel.
   4. AMA shall under no circumstances be liable for damage to or loss of Goods delivered to it by the Principal for the purpose of forwarding, clearing or safe keeping.
   5. AMA shall not be responsible for any money paid or remitted by it on behalf of the Principal to any person pursuant to any request or instruction given to AMA by the Principal, its servants, employees, agents or representatives.
   6. All delivery dates specified in the Orders placed by the Principal (“the Delivery Date/s“) are estimates only and AMA shall not be responsible for any costs, expenses, losses or damages suffered by the Principal, either directly or indirectly arising where the Goods or services are not delivered by the Delivery Date. The Principal must accept or pay for Goods and services despite any delay in delivery or despatch thereof.

 

10. INSURANCE

    1. Should the Principal require insurance against damage or loss where AMA’S liability for such damage and/or loss is excluded by these Terms and Conditions, AMA shall procure such insurance for the Principal, on the Principal’s behalf and at the Principal’s expense, provided that the Principal’s request for such insurance is made in writing and an insurance cover note is issued and taken up by the Principal prior to the delivery of the Agency Services.
    2. Notwithstanding AMA’S compliance with any request made under 10.1, AMA shall under no circumstances be liable for any errors or omissions on its part in arranging such insurance on behalf of the Principal.

 

11. WARRANTIES AND REPRESENTATIONS BY AMA

    AMA makes no warranties and representations to the Principal save as may be specifically provided herein, or as notified in writing by AMA to the Principal, from time to time. The Principal acknowledges that AMA is not in any way bound by any oral statement, representation, guarantee, promise, undertaking, warranty or inducement which may have been made at any time by any employee, representative or any person acting, or purporting to act, for and on behalf of AMA, whether negligently or otherwise, unless such statement, representation, guarantee, promise, undertaking, warranty or inducement is supplied or made in writing by an employee of AMA, duly authorised by written resolution of the board of directors of AMA, in response to a written enquiry specifying accurately and in complete detail what information is required.

 

12. INDEMNITIES BY PRINCIPAL

    1. Without prejudice to any rights AMA may have under these Terms and Conditions or otherwise in law, the Principal hereby indemnifies and holds AMA, its servants, agents, representatives and nominees harmless against all liabilities, damages, costs and expenses of whatsoever nature incurred or suffered by AMA arising, directly or indirectly, from or in connection with the provision of the Agency Services and, in particular, but without limitation, in respect of any liability whatsoever which may be incurred by reason of:
       1. claims by a Supplier in respect of any Goods provided to the Principal at AMA’s instance and request in accordance with 3.5;
       2. payment of any taxation which may be levied on passenger earnings or freight earned on cargo loaded in the absence of reciprocal intergovernmental taxation agreements;
       3. payment of any costs and expenses incurred by AMA in the performance of the Agency Services;
       4. any claims arising out of a guarantee furnished by AMA pursuant to the provisions of 8; and/or
       5. any claims arising out of a breach of 13 by the Principal.
    2. The Principal hereby undertakes, at any time prior to, during or after the provision of the Agency Services and on receipt of a written request from AMA, to place AMA in sufficient funds, or to furnish AMA with security to the satisfaction of AMA, in order to ensure the due fulfilment by the Principal of its obligations under the indemnity contained in 12.1.

 

13. WARRANTIES BY PRINCIPAL

    1. The Principal warrants that:
       1. it is either the owner, or the authorised agent of the owner, of any Goods in respect of which the Principal instructs AMA, and that each such person is bound by these Terms and Conditions and accepts that AMA shall have the right to enforce against any such persons, jointly and severally, any liability of the Principal under these Terms and Conditions, or to recover from any such persons any sums to be paid by the Principal to AMA which, upon proper demand, have not been paid;
       2. all information and instructions supplied, and to be supplied, by it to AMA are and shall, at all times, be accurate, true and comprehensive and, in particular, without derogating from the generality of the aforegoing, the Principal shall be deemed to be bound by and warrants the accuracy of all descriptions, values and other particulars furnished to AMA for customs, consular and other purposes, and the Principal warrants further that it will not withhold any necessary or pertinent information from AMA, and indemnifies AMA against all claims, losses, penalties, damages, expenses and fines whatsoever, whensoever and howsoever arising as a result of a breach by the Principal of the warranties contained in this 13; and
       3. Goods will be properly, adequately and appropriately prepared, packed, stowed, labelled and marked, having regard, inter alia, to the implementation by or on behalf of AMA of the agreement between AMA and the Principal in respect of the Goods concerned, and the characteristics of the Goods concerned shall be capable of withstanding the normal hazards inherent in the implementation of such agreement and shall comply with all legislative requirements.
    2. The Principal agrees that each of the warranties referred to in this 13 shall be deemed to be a representation of fact inducing AMA to enter into these Terms and Conditions unless the contrary is proved, and that each of the warranties referred to in this 13 shall be assumed to be a material warranty unless the contrary is proved.
    3. All matters referred to in this 13, save where the context clearly indicates the contrary, are and shall be warranted as such for the duration of these Terms and Conditions.

 

14. AGENT’S LIEN

    All Goods and documentation pertaining thereto, including, without limitation, bills of lading and import permits, as well as all refunds, repayments, claims and other recoveries or currency received by AMA from, or on behalf of, the Principal, shall be held by AMA subject to a general lien and right of retention in lieu of any monies due to AMA by the Principal for any reason whatsoever. If the general lien is not
    satisfied within 14 (fourteen) calendar days of written notice of the exercise of such lien having been given to the Principal by AMA, or should the Agreement be terminated without AMA having been paid all amounts owing to it by the Principal:

    1. the Goods may be sold by auction or otherwise and the proceeds of the sale applied to the satisfaction of the lien and expenses incurred in respect of the sale; and
    2. AMA shall be entitled to set off and to deduct any amount owing to it by the Principal from the amount of the proceeds held by it as a result of the sale.

 

15. FORCE MAJEURE

    1. If any Party to these Terms and Conditions is prevented or restricted, directly or indirectly, from carrying out all or any of its obligations under these Terms and Conditions by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations under these Terms and Conditions during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or any loss or damages, whether general, special or consequential, which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.
    2. Any Party invoking force majeure in accordance with this 15 shall upon termination of an event giving rise thereto, forthwith give written notice of such cessation to the other Party. If such force majeure continues for a period of more than 90 (ninety) days, then either Party shall be entitled forthwith to cancel these Terms and Conditions in respect of any obligations still to be performed hereunder, and neither Party shall have any claim against the other.

 

16. BREACH

    1. If either Party to these Terms and Conditions:
       1. breaches any of the provisions of this Agreement and, where such breach is capable of remedy, the defaulting Party fails to remedy the breach for a period of 10 (ten) calendar days after receipt of notice from the aggrieved Party calling upon the defaulting Party to remedy its breach;
       2. commits any other breach of the terms of this Agreement which is incapable of being remedied;
       3. takes steps or has steps taken against it for its winding-up, sequestration or liquidation (whether voluntary or otherwise), or commits any act of insolvency in terms of the Insolvency Act 24 of 1936;
       4. being a company or close corporation, ceases to be controlled by the person(s) that control(s) it at the date of commencement of these Terms and Conditions as contemplated in 4; and/or
       5. fails to contest or discharge any final judgment taken against it in any court of competent jurisdiction for a period of 10 (ten) days or longer; and/or
       6. ceases to carry on business for any reason whatsoever; then such defaulting Party shall be deemed to be in breach of its obligations in terms of these Terms and Conditions.
    2. If either Party is in breach of these Terms and Conditions, or is deemed to be in breach of these Terms and Conditions in terms of 16.1, and provided the aggrieved Party has given the defaulting Party 10 (ten) calendar days written notice to remedy such breach and the defaulting Party fails to timeously remedy such breach after receiving such written notice, the aggrieved Party shall be entitled, but not obliged, in addition to any other rights which it may have or remedies which may be available to it in terms of these Terms and Conditions or otherwise in law, to –
       1. cancel these Terms and Conditions forthwith, with or without claiming damages;
       2. obtain an order against the defaulting Party for specific performance, with or without claiming damages; and/or
       3. claim such damages as it may have suffered in lieu of specific performance, together with all amounts owing under, or in terms of these Terms and Conditions, whether or not such amounts have become due for payment.

 

17. TERMINATION FOR CONVENIENCE

    Either Party shall, in its sole and absolute discretion, be entitled, at any time, to terminate this Agreement on 30 (thirty) days’ written notice to the other Party.

 

18. DOMICILIUM

    1. The Principal elects as their domicilium citandi et executandi, the address provided to AMA in their written Application for Cash or Credit Facility form and/or the Order. Such address (not being a poste restante) shall be the domicilium citandi et executandi at which all processes and notices arising out of or in connection with these Terms and Conditions or a breach or termination thereof may be validly served upon and delivered to the Principal.
    2. The Principal may, by notice in writing to AMA, change its domicilium citandi et executandi.
       • A notice sent by AMA to the Principal shall be deemed to be received:
       • On the date of delivery, if delivered by hand;
       • On the fourth day after posting, if sent by prepaid registered mail;
       • On the day after faxing, if sent by facsimile transmission;
       • On the date of sending, if sent by electronic mail (email).
    3. Notwithstanding anything to the contrary contained in this 18, a written notice or communication actually received by the Principal from AMA, shall be adequate written notice or communication to the Principal notwithstanding that it was not sent or delivered at its chosen domicilium citandi et executandi.

 

19. ARBITRATION

    1. Subject to 19.2, in the event of any dispute of whatsoever nature arising between the Parties in relation to any matter provided for in, or arising out of these Terms and Conditions, then that dispute may, at the sole election of AMA, which election shall be communicated to the Principal in writing, be referred to arbitration to be held at Cape Town. Should AMA elect that the dispute be referred to arbitration, such dispute shall be referred to a single arbitrator to be agreed upon by the Parties to the dispute or, failing such agreement, to be nominated by the president for the time being of the Maritime Law Association of the Republic of South Africa, and such arbitration shall be conducted in accordance with and subject to the provisions of the Arbitration Act No. 42 of 1965, or any statutory modification or re-enactment thereof for the time being in force or such rules as the Parties may agree to, in writing.
    2. Should AMA elect to proceed with arbitration in terms of 19.1, the provisions of 19.1 shall not preclude any Party from obtaining relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

 

20. MISCELLANEOUS

    1. ISPS (International Ship and Port Facility Security Code)

       AMA will exercise reasonable skill and care to file the data required for purposes of ISPS correctly and within the prescribed filing deadlines. AMA shall not be responsible or liable for the correctness or accuracy of the information provided by the Vessel or any failure by the Vessel to provide the data in a timely manner nor for any technical problems or human error beyond AMA’s control. AMA will provide the filing process as a data exchange service only. AMA shall bear no liability of whatsoever nature irrespective of any alleged negligence or fault on the part of AMA, arising from the filing of data or omission of file data timeously or at all and liability therefor shall rest exclusively with the Vessel. The Principal hereby indemnifies and holds AMA harmless in respect thereof.

    2. Department of Agriculture, Forestry and Fisheries (DAFF)

       In the compilation and submission by AMA to DAFF in respect of the application for any right, permit, licence, exemption, permission or consent that may be required by the Vessel, AMA will exercise reasonable skill and care to compile and submit the application to DAFF correctly and within the prescribed filing deadlines. AMA shall not be responsible or liable for the correctness or accuracy of the information and/or documentation provided by the Vessel or any failure by the Vessel to provide the information and/or documentation in a timely manner, nor for any technical problems or human errors beyond AMA’s control. AMA shall bear no liability of whatsoever nature irrespective of any alleged negligence or fault on the part of AMA, arising from the submission by AMA to DAFF of any application or omission to file such application timeously or at all and liability therefor shall rest exclusively with the Vessel. The Principal hereby indemnifies and holds AMA harmless in respect thereof.

    3. Implementation and good faith

       1. The Parties to these Terms and Conditions undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or conducive to giving effect to the terms, conditions and import of these Terms and Conditions.
       2. The Parties shall at all times during the continuance of these Terms and Conditions observe the principles of good faith towards one another in the performance of their obligations in terms of these Terms and Conditions. This implies, without limiting the generality of the aforegoing, that they:
          1. will at all times during the term of these Terms and Conditions act reasonably, honestly and in good faith;
          2. will perform their obligations arising from these Terms and Conditions diligently and with reasonable care; and
          3. will make full disclosure to each other of any matter that may affect the execution of these Terms and Conditions.

    4. Severability

       The agreements and undertakings of Parties contained in these Terms and Conditions shall each be construed as an agreement and undertaking independent of any other provision of these Terms and Conditions. The Parties hereby expressly agree that it is not the intention of either Party to violate any public policy, statutory or other applicable law, and that if any sentence, paragraph, clause or combination of the same is in violation of the law of the Republic of South Africa, such sentence, paragraph, clause or combination of the same alone shall be void in the jurisdiction where it is unlawful, and the remainder of such clause and these Terms and Conditions shall remain binding upon the Parties hereto.

    5. Variation

       No variation or alteration of these Terms and Conditions shall be binding on AMA unless embodied in a written document signed by a duly authorised director of AMA. Any purported variation or alteration of these Terms and Conditions otherwise than as set out herein shall be of no force or effect, whether such purported variation or alteration is written or oral, or takes place before or after the receipt of these Terms and Conditions by the Principal.

    6. Relaxation

       No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other in respect of the performance of any obligation hereunder, or the enforcement of any right arising from these Terms and Conditions, and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party, or operate as a waiver or a novation of, or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

    7. Time of the essence

       Time is of the essence for the performance by the Principal of all obligations owed to AMA in terms of this Agreement.

    8. Non-assignment

       The Principal shall not be entitled to assign any of its rights and obligations under these Terms and Conditions without the express prior written consent of AMA, which consent AMA may, in its sole and absolute discretion, withhold or withdraw.

    9. Email correspondence

       All electronic mail (email) exchanged between AMA and the Principal is subject to the following:

       1. The relevant portions of these Terms and Conditions are enforceable and binding on the recipient / addressee in terms of sections 11(1) to 11(3) of the Electronic Communications and Transactions Act 25 of 2002.
       2. All e-mail transmissions dispatched by AMA contains confidential information, which is the property of AMA. No person, other than the recipient (so indicated by AMA) may use or disclose the contents of all e-mail transmissions dispatched by AMA or attachments hereto, to any person whatsoever.
       3. The information in all e-mail transmissions dispatched by AMA or attachments thereto is intended for the attention and use only of the addressee. Any disclosure, copying or distribution of the contents of this e-mail transmission, or the taking of any action in
          reliance thereon or pursuant thereto, by any person other than the intended recipient is strictly prohibited.
       4. The e-mail address(es) of AMA may not be used, copied, sold, disclosed or incorporated into any database or mailing list for spamming and/or other marketing practices without the prior written consent of AMA.
       5. Under no circumstances shall AMA be liable to any party for any direct, indirect, special or other consequential damages for any use of e-mail transmissions dispatched by AMA or attachments thereto, or of any other hyper linked web site, including, without limitation, any lost profits, business interruption, loss of programs or other data or information handling systems or otherwise, even if AMA has been expressly advised of the possibility of such damages.
       6. No e-mail correspondence sent to AMA shall be deemed to have been received until AMA has responded thereto in writing. An auto-reply shall not constitute such a response.
       7. AMA retains the copyright in all e-mail messages and attachments sent from its communications systems.

    10. Costs

        All costs (including collection fees and tracing agents), incurred by AMA (whether partially or substantially successful) in enforcing its rights (whether action has been instituted or not) arising out of a breach of these Terms and Conditions by the Principal shall be borne by the Principal on the scale as between attorney and own client.

Revised July 2015