These Conditions (as defined below) create a contractual relationship between the client and the Company (as defined below). These Conditions will become effective when the client first uses Services (as defined below) from the Company and the client will be deemed to accept these Conditions on each occasion that they use the Services of the Company.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this Clause apply to these Conditions.
Means Nautilus Shipbroking, including any subsidiaries and affiliates.
Means the charges (including all commissions) payable for the Services as set out in the Contract or which may be payable by custom of the trade or by reference to a course of dealings between the Parties.
Means any person at whose request or on whose behalf the Company undertakes any business or provides any advice, information or service.
Means the terms & conditions set out in this document.
Means the contract pursuant to which the Company agrees to provide Services to the Client, whether such contract is verbal or in writing and including any contract between the Company and the Client which is contained in or evidenced by the terms of a separate contract between the Client and a third party.
Individually means any Nautilus Shipbroking and/or any Client that is party to a Contract and "Parties" shall be construed accordingly.
Means the broking services (including but not limited to sale, purchase, construction, charter, or post fixture services) provided by the Company in relation to any vessel.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 In these Conditions and in a Contract incorporating these Conditions, unless the context requires otherwise:
1.3.1 Words in the singular shall be deemed to include the plural and vice versa;
1.3.2 Words importing any particular gender shall include all other genders;
1.3.3 References to persons shall include bodies of persons whether corporate or otherwise; and
1.3.4 Words importing the whole shall be treated as including a reference to any part of the whole.
2. Contractual Capacity
2.1 The Company shall provide the Services as agents for and on behalf of the Client.
2.2 The Company will undertake the Services with reasonable care, diligence, skill and judgement. Furthermore, the Company shall provide the Services in compliance with any applicable laws, rules, and regulations.
2.3 If the Company receives monies payable to the Client, the Company shall be entitled to retain from such monies a sum equivalent to any commission which the Client owes to the Company or to any subsidiary whether or not that commission has become due and payable.
3. Application of these conditions
3.1 By accepting Services from the Company, the Client agrees to be bound by these Conditions to the exclusion of all other representations, statements, conditions, terms, warranties, whether express, implied, statutory or otherwise except any implied by law or statute which cannot by law be excluded.
3.2 Unless otherwise expressly agreed in writing by a director of the Company, the Company shall be entitled to the benefit of such implied terms as might ordinarily be held to apply to the Contract for the protection of the Company.
3.3 These Conditions, together with the terms of any Contract, comprise the entire agreement between the Parties with respect to the Services. In the event of a conflict, the following descending order of precedence shall apply:
3.3.1 Any specific terms of the Contract agreed between the Client and the Company;
3.3.2 The Conditions.
3.4 While the parties hereto believe (in all the circumstances known to them at the date of entering the Contract) that these Conditions are reasonable as to all of their terms, if a court shall determine that any one or more of the terms are unenforceable for any reason, such terms shall be deemed to be severed from the body of these Conditions such that the remaining terms shall stand and be enforceable between the parties hereto.
3.5 Nothing in these Conditions shall exclude or limit any liability or any right which either Party may have in respect of fraud or in respect of pre-contractual statements given fraudulently or dishonestly or in circumstances where there has been wilful concealment.
3.6 Catalogues, circulars, or literature shown or provided by the Company are for the Client's general guidance only and the particulars contained therein shall not constitute representations by the Company nor any subsidiaries shall be bound thereby.
3.7 The Conditions shall apply to any Contract between the Company and the Client save in so far as a director of the Company expressly agrees otherwise in writing. Without prejudice to the generality of the foregoing the Company shall not be bound by any standard terms and conditions of the Client or by any other terms proposed by a Client which conflict with these Conditions unless a director of the Company has expressly agreed to such terms in writing irrespective of when such standard terms and conditions or other terms are put forward.
4. Authority / Cooperation
4.1 The Client warrants that at the time of contracting with the Company and at all other relevant times (i) it has the full power and authority to engage the Company to provide the Services and (ii) to instruct the Company to enter into, arrange or execute any transaction arising out of or in connection with the Services.
4.2 The Client warrants that it has adequate resources to enter into and perform any transaction arising out of or in connection with the Services.
4.3 The Client warrants that it will deal with the Company in good faith at all times.
4.4 The Client warrants that it shall comply at all times with any applicable laws, rules, and regulations.
4.5 The Client will procure that (i) its employees, servants and agents will promptly provide all information reasonably required by the Company to arrange the Services (ii) all information provided to the Company by or on behalf of the Client will be accurate and complete (iii) the Company can rely upon the information for the purposes of and in connection with the Services. In the event that there is any change to the information provided to the Company, the Client will notify the Company of that change promptly.
4.6 If requested by the Company the Client will provide and will procure that the employees, servants or agents of the Client will provide such reasonable assistance to the Company as may be required in connection with the Services.
4.7 The Client will indemnify and hold the Company harmless from any claims, liability, loss, damage or expense howsoever arising, which may arise as a consequence of a breach by the Client, the Client's servants or agents of the provisions of clauses 4.1 to 4.6 above.
4.8 The Client will ensure that all goods will be properly, adequately and appropriately prepared and packed, labelled and marked.
4.9 Where goods are carried in or on containers, trailers, flats, railway wagons or any other unit load devices (hereafter referred to as transport units) specifically designed for the carriage of goods by land, sea or air, the Client will ensure that the transport unit has been properly and competently loaded and the goods involved are suitable for carriage in or on the transport unit. The Client will also ensure that the transport unit is itself in a suitable condition to carry the goods loaded therein and complies with the requirements of all relevant transport authorities and carriers.
5.1 Unless otherwise expressly agreed in writing by a director of the Company, the Client shall be responsible for the payment of the Company's Charges. In circumstances where the Client's responsibility for the payment of the Charges is to be discharged by a third party, the Client shall take all necessary steps to ensure the prompt payment of the Company's Charges and shall pay the Charges itself in the event of default by the third party.
5.2 Where payment of the Charges is not made on the due date the Company, at its sole discretion, reserves the right to charge interest on the overdue amount at the annual rate of 3% above the base rate, compounded monthly and accrued from the due date until the date of payment as well after as before judgment (a part of a month being treated as a full month for the purpose of calculating such interest).
6. Terms of payment
6.1 Unless otherwise agreed, the Client shall settle the Company's invoice immediately on presentation of the invoice without any suspension, retention, set-off (statutory or otherwise), deduction, counterclaim or discount and notwithstanding the existence of any claim or dispute in respect of the Services. Payment of the invoice is to be confirmed prior to release of documentation.
7.1 The Company and the Client agree that the limits and exclusions of liability found in this clause 7 are fair and reasonable having regard to the nature of the Services, the fees paid for such Services by that Client and all other circumstances known to the Client and the Company relating to the Services at the time of the making of the Contract.
7.2 The Client undertakes that no claim or allegation in respect of the Services, whether arising in contract or otherwise, shall be made against the Company by any person other than the Client and if any such claim or allegation should nevertheless be made undertakes to defend, indemnify and hold harmless the Company against all consequences thereof.
7.3 Neither the Company nor any subsidiaries shall be liable for any consequential or indirect loss or damage suffered by a Client. Further, neither the Company nor any subsidiaries shall be liable to the other for any loss of profits, loss of use, loss of or interruption in business, loss of goodwill or loss of data.
7.4 In any event, the Company shall be discharged from all liability whatsoever or howsoever arising out of or in connection with the provision of Services unless proceedings are commenced and served on the Company within the relevant statutory limitation period applicable under the laws of the Republic of South Africa.
7.5 In the event that a Client requests the Company to use the services of a third party in relation to a Contract (the "Third Party Services"), the Company will contract with such third party as agent for the Client. The Company expressly disclaims (to the maximum extent permitted by law) all warranties and representations with respect to the Third Party Services express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, accuracy or reliability of results from use of the Third Party Services, that the Third Party Services will meet specific requirements, that the Third Party Services will be uninterrupted, completely secure or free of errors, including, without limitation, software errors. The Client acknowledges and agrees that the Third Party Services are provided on an "as is" basis without any warranty of any kind and that the entire risk as to the quality and performance of the Third Party Services shall be borne by the Client unless otherwise agreed with the Client.
7.6 The provisions of this clause 7 shall remain in force notwithstanding termination of the Contract.
8.1 The Client shall not publish any document containing any reference to the Company or make use of the Nautilus Shipbroking name or any Nautilus Shipbroking logo, whether express or implied, without the prior written consent of Nautilus Shipbroking.
9.1 The Company shall be entitled to terminate the Contract with immediate effect and without liability by giving written notice to the Client if:
9.1.1 the Client commits any material breach of any term of the Contract (or in case of a breach capable of being remedied if the Client fails, within thirty (30) days of the receipt of a request in writing from the Company to do so, to remedy the breach);
9.1.2 The Client has a change of Control; or
9.1.3 the Client summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to a voluntary arrangement, is unable to pay its debts as per the Insolvency Act , has a receiver, manager or administrative receiver appointed over any of its assets, undertaking or income or has a provisional liquidator appointed
9.2 If the Contract is terminated or cancelled other than due to any breach by the Company the Client shall pay the Company all fees earned and recoverable costs incurred in respect of the Services performed up to the date of the termination or cancellation (as applicable) together with any further reasonable costs and/or expenses incurred by the Company as a result of the termination or cancellation (as applicable). Notwithstanding the above, commission earned in respect of any Services provided prior to termination or cancellation (as applicable) shall continue to be payable despite any termination or cancellation (as applicable) of the Contract.
9.3 The Client shall be liable to the Company for any damages suffered by the Company as a result of the termination pursuant to Clause 9.1.1.
10.1 If any term of the Contract including but not limited to any term of these Conditions is held by any competent authority to be invalid or unenforceable, in whole or in part, the validity of the other terms of the Contract including but not limited to the terms of this Conditions and the remainder of the term in question shall not be affected.
11. Force majeure
11.1 Neither Party shall be liable to the other for any failure to perform or delay in performance of its obligations hereunder if and in so far as and for so long as such performance is delayed or prevented by the other's acts or omissions, or by circumstances beyond its reasonable control including but not limited to strikes, lock-outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, adverse weather conditions or prolonged power failure.
12.1 If the Client becomes aware of any claims or circumstance which might involve litigation or arbitration concerning the subject matter of the Contract, the Client shall immediately inform the Company.
12.2 The Client undertakes that it will not without the written consent of the Company use as evidence in any litigation or arbitration proceedings the results of the Company's work relating thereto.
13.1 Any notice to be given hereunder or otherwise in relation to the Services shall be in writing and shall be deemed to have been duly given if sent or delivered to the Party concerned at such address as the Party may from time to time notify in writing or to the correct facsimile number or electronic mail address (as notified by the receiving Party) and shall be deemed to have been served, if sent by first class post, 48 hours after posting and in the case of a facsimile transmission on the following day or in case of electronic mail on the same date.
14. Governing Law
14.1 These trading terms and conditions and all agreements entered into between the Company and the Client pursuant thereto and on the terms thereof shall be governed by and construed in accordance with the laws of the Republic of South Africa.
15. Submission of Jurisdiction
15.1 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 division of the High Court of South Africa where the Company’s head office is situated at the commencement of the proceedings, and the Client irrevocably submits to the non-exclusive jurisdiction of such court.