STANDARD TRADING TERMS AND CONDITIONS OF REEFER COLD STORAGE (PTY) LIMITED (NOT APPLICABLE TO CONSUMERS IN TERMS OF THE CONSUMER PROTECTION ACT, 2008)
1. DEFINITIONS AND INTERPRETATION
1.1. In these STC’s, unless the context requires otherwise:
1.1.1. Agreement means these STCs and the Quote to which they are attached and, if applicable any credit application made by the Customer which is approved by Reefer, in writing;
1.1.2. APS Temperature means the temperature prescribed by law and at which certain goods must be kept at all times;
1.1.3. Claim/s means any claim made by any person, arising from any cause of action (including breach of contract, delict, strict or statutory liability) and for any amount including for loss, damages, fines, penalties, interest, shortages, and in the case of Reefer, delay in providing the Services or failing to provide the Services at all;
1.1.4. Customs Act means the Customs and Excise Act no 91 of 1964; and Customs means the Customs and Excise Divisions of the South African Revenue Service;
1.1.5. Customer or you or related terms means the person whose name is reflected as that of the Customer in the Quote and with whom Reefer contracts to provide the Services;
1.1.6. Duty means customs duty or excise levied or any other duty levied by any Government authority having jurisdiction in respect of any of the Goods and includes any applicable interest and/or penalties;
1.1.7. Force Majeure means any exceptional event or circumstance:
1.1.7.1. which is beyond a party's reasonable control;
1.1.7.2. which that party could not reasonably have provided against before entering into the Agreement;
1.1.7.3. which, having arisen, could not reasonably have been avoided or overcome by that party; and
1.1.7.4. excludes any inability to make a payment due by either party to the other because of a lack of funds;
1.1.8. Goods means the goods in respect of which Reefer provides the Services including perishables and containerized and/or break bulk goods;
1.1.9. Interest Rate means the prime overdraft lending rate from time to time of ABSA Bank Limited +2%, nacm;
1.1.10. Overtime means at any time outside Reefer’s usual business hours, that is from Monday to Friday, both days included but excluding statutory public holidays from 07:30 to 16:15 and on Saturdays, excluding statutory public holidays in South Africa from 07:30 to 11:30;
1.1.11. Quote means the written quotation which Reefer provides to the Customer setting out the scope of the Services and Reefer’s Prices for those Services;
1.1.12. Reefer, we or us and related terms means Reefer Cold Storage Proprietary Limited, registration number 2016/277383/07;
1.1.13. Personnel means a party’s members, shareholders, directors, officers, employees, agents and/or contractors;
1.1.14. Services means the services provided or to be provided by Reefer to the Customer in terms of the Agreement from time to time, whether free of charge or for a fee, including receipt, handling, weighing, sorting, stencilling, strapping or restrapping Goods, packing or repacking Goods, bagging, wrapping and palletizing of Goods, (cold) storage, transport of Goods and any and all general business undertaken, advice and/or information provided;
1.1.15. Signature Date means the date the Customer signs the Quote;
1.1.16. Site Rules means Reefer’s site rules, regulations, policies and procedures as amended from time to time including those governing access to its premises, security, environmental, health and safety and privacy;
1.1.17. STCs means these standard trading terms and conditions, as amended by Reefer from time to time;
1.1.18. Unsound Goods means Goods that Reefer, in its sole discretion deems unsound, noxious, dangerous, hazardous, flammable or liable to cause damage or to constitute a nuisance, Goods which are tainted, decayed, affected or infested with disease, virus, spores, fungus, bacteria, inherent vice, insects or contamination of any nature or degree which renders them unfit or unsuitable for sale/human consumption/import/export or marketing, for any reason irrespective of when that condition may have arisen and including Goods in transit and/or in bond in terms of any law including fighter-sanitary requirements or directives issued by any relevant authority and including goods treated with chemicals unacceptable to the country of destination;
1.1.19. Utility includes the supply of electricity, water, gas, sewerage, refuse removal, telephone services, cellular signal, Wi-Fi connectivity and Internet access;
1.1.20. Utility Disruption means any planned or unplanned interruption or cessation of supply of any Utility including an interruption or cessation caused by any act or omission by Reefer except disconnection of a Utility because of non-payment for that Utility;
1.1.21. VAT means value added tax payable in terms of the VAT Act; and
1.1.22. VAT Act means the Value Added Tax Act, 1991.
1.2. Unless the context requires otherwise, in the Agreement:
1.2.1. headings are for convenience only and do not affect the interpretation of this agreement;
1.2.2. references to one gender include all other genders and references to the singular include the plural and vice versa;
1.2.3. a reference to:
1.2.3.1. a business day means any day other than a Saturday, Sunday or statutory public holiday;
1.2.3.2. a clause or schedule means a clause of, or schedule to, this agreement;
1.2.3.3. a day means a calendar day;
1.2.3.4. indebtedness must be widely construed so as to include any obligation (whether incurred as principal or surety) for the payment or repayment of money, whether in respect of interest, principal or otherwise and whether present or future, actual or contingent;
1.2.3.5. law/s means all applicable laws including the common law, primary and subordinate, national, provincial and local statutes, regulations, by laws, directives, guidelines, practice notes, instructions, policies, rules, court orders, permission, consent or decisions by any regulatory authority and any other document which has the force of law;
1.2.3.6. nacm means nominal annual compounded monthly in arrears;
1.2.3.7. a person includes an individual, firm, company, partnership, body corporate, organisation, trust, an unincorporated association and any governmental authority, in each case whether or not having separate legal personality;
1.2.3.8. South Africa means the Republic of South Africa;
1.2.3.9. week means a period of 7 consecutive days starting on Sunday and ending on the next Saturday;
1.2.4. when any number of days is specified, it excludes the first and includes the last day;
1.2.5. when any performance of an obligation is due on a day which is not a business day, then that performance will be due on the next business day;
1.2.6. unless specified otherwise, any reference to an amount means that amount excluding VAT,
1.2.7. any reference to the Agreement or any other agreement or document means the Agreement or such other agreement or document as it has been, or may from time to time be, amended, varied, novated, supplemented, restated or replaced (in whole or in part).
1.3. The eiusdem generis rule does not apply to the Agreement. This means that whenever specific words of a particular class are used together with general words, the specific words do not limit the meaning of the general words and, except where the contrary is expressly provided, specifying anything in the Agreement after the words ‘including’, ‘includes’ or ‘for example’ or similar expressions does not limit what is included.
1.4. If a definition contains a substantive provision which confers rights or imposes obligations on a party, that provision is still a substantive provision of the Agreement, even if only appearing in the definition.
1.5. The expiration or termination of the Agreement does not affect those of its provisions which expressly provide that they survive its expiration or termination, or which must necessarily continue to apply thereafter even if the clauses themselves do not expressly provide for this.
1.6. Unless it is clear from a clause that a term defined in that clause only has that meaning in that clause, that term has the meaning ascribed to it for all purposes in the Agreement, even if that term has not been defined in this definitions and interpretation clause.
1.7. This Agreement is also for the benefit of, and binding upon, each party’s respective successors in title and permitted assigns.
1.8. The rule of contract interpretation that ambiguous provisions shall be interpreted against the party responsible for drafting the contract does not apply to the interpretation of the Agreement.
1.9. A reference to any legislation (including statutes, ordinances, regulations and by laws) means that legislation as at the Signature Date and as amended or re-enacted or substituted from time to time.
1.10. A reference to any statutory body or court or to any association for the purposes of appointing an expert or arbitrator means that statutory body or court or association as at the Signature Date and its successors.
1.11. A reference to South African law includes a reference to the equivalent law or process in any other jurisdiction in which the Agreement may apply or to the laws of which a party is, or becomes, subject.
1.12. The documents which are part of the Agreement must be read together and if they conflict or are inconsistent, the provisions in the main body of the Agreement prevail over the attachments.
2. ONLY THESE STCS APPLY
2.1. Reefer and the Customer agree that, unless a director of Reefer signs a separate written agreement saying otherwise, these STCs apply to all business between them.
2.2. Reefer only does business in terms of these STCs read with the Quote.
The Customer’s standard trading terms and conditions do not apply.
2.3. When you sign and return the Quote and these STCs to Reefer, that is an offer and the Agreement is only concluded between Reefer and the Customer when Reefer emails the Customer accepting that offer.
2.4. We change our STCs from time to time. After we amend our STCs, the amended STCs apply to all Services which we provide to you. At any time you can obtain the current STCs on Reefer’s website at www.reefercoldstorage.co.za or on request by phone on 031 5795631.
3. WARRANTY THAT THE CUSTOMER IS NOT A CONSUMER IN TERMS OF THE CONSUMER PROTECTION ACT
You warrant that when the Customer concludes the Agreement with Reefer:
3.1. the Customer is a juristic person as defined by the Consumer Protection Act, 2008; and
3.2. the Customer’s annual asset value and annual turnover each exceed R2 million; and
3.3. the Customer is not a “consumer” as defined by the Consumer Protection Act, 2008.
4. EXCLUSIONS FROM, AND LIMITS ON, REEFER’S LIABILITY
4.1. Despite any other provision of the Agreement, Reefer’s maximum liability to the Client is limited to a maximum of ZAR100 per metric ton of the Goods to which any Claim relates or such higher amount as you specially declare in writing when Reefer issues a receipt for the Goods provided that that higher amount is approved in writing by a director of Reefer and endorsed by that director, in writing on the face of the receipt.
4.2. REEFER IS ONLY LIABLE TO THE CUSTOMER FOR CLAIMS FOR DIRECT DAMAGES WHICH THE CUSTOMER PROVES ARE CAUSED SOLELY AND DIRECTLY BY REEFER’S INTENTIONAL BREACH OF THE AGREEMENT.
Without limiting the generality of the exclusion of liability in this clause Error! Reference source not found., Reefer is not liable for any Claim arising from or in connection with the negligence or gross negligence of Reefer or any of its Personnel, the maintenance of too high or too low a temperature, failure of machinery or plant, Force Majeure, Utility Disruption, flood, wind, sprinkler leakage, fire, leakage, defects in the storage area, dampness, sweat, decay, putrefaction or destruction by vermin, Acts of God, civil commotion, any order or action of military or government authority, insurrection, protected and unprotected strikes, lockouts, labour disputes, quarantine, war, explosion, the nature of the Goods, inherent vice, contact with or proximity to other goods, concealed damage, variation or shrinkage in mass, defective or insufficient packaging or container or theft.
4.3. Despite any other provision of the Agreement, Reefer is not liable to the Customer for any consequential or indirect or special loss or damages of any nature, however caused and lost profits, loss of contracts, interruption of business or operations are all deemed to be consequential, indirect or special loss or damages excluded by this clause.
4.4. The Customer waives any Claim which it may have against Reefer arising from or in connection with the entry or presence on Reefer’s premises of any of the Customer’s Personnel and the Customer indemnifies Reefer against any Claim made against Reefer arising from the death, injury or illness of any of the Customer’s Personnel on Reefer’s premises.
4.5. Reefer is not liable for any Claim unless:
4.5.1. you have notified it of that Claim, providing full details of the Claim, within 5 business days after the date when you removed the Goods from Reefer’s premises; and
4.5.2. summons or other process initiating legal proceedings in respect of that Claim is issued and served on Reefer within 12 months after the earlier of the date on which the Customer gives notice of that Claim to Reefer or the date when the Customer removed the Goods which are the subject of that Claim from Reefer’s premises.
5. AGENCY
Reefer will only deal with the Customer’s agent if, at the time that the Agreement is concluded, the agent gives Reefer written notice explaining that he is the Customer’s agent and setting out the full name, address, email address and telephone numbers of his principal and Reefer agrees to contract with the agent on behalf of the principal by having a director of Reefer endorse the Quote to that effect in writing and sign that endorsement.
6. WARRANTY AS TO OWNERSHIP OR AUTHORITY
6.1. The Customer warrants that it is authorised to contract with Reefer and to do so on the basis of the STCs, for itself and, where it does not own the Goods, on behalf of the owner thereof and the Customer hereby indemnifies Reefer against any Claim by the true owner of the Goods or any person having any interest in them. The person representing the Customer in contracting with Reefer warrants that he is duly authorised to do so.
6.2. The Customer warrants that the Goods will not, due to incorrect packing or packaging or any other reason, cause any loss or damage to other goods stored by Reefer and the Customer indemnifies Reefer against any Claim made against Reefer in consequence of any loss or damage so caused.
7. CHANGE OF OWNERSHIP OF THE GOODS
The Customer acknowledges that if the Goods are sold by the Customer whilst in storage at Reefer’s premises, that sale does not bind Reefer unless Reefer agrees in writing to assign the Agreement to the new owner. This means that despite any sale of the Goods, the Customer remains liable to Reefer in terms of the Agreement. The Customer must give effect to any change of ownership in bond in accordance with section 26 and rule 26 of the Customs Act.
8. IDENTIFYING MARKS AND NUMBERS
8.1. The Customer must ensure that all Goods bear clear identifying marks and numbers.
8.2. Unless Reefer records in writing a special endorsement to the contrary on Reefer’s receipt, all Goods are accepted on the basis that the contents, mass, quantities, condition and values of the Goods are unknown to Reefer.
8.3. The Customer warrants and undertakes that all details of any nature, including weights, quantities, numbering and identifying marks, contents, values and descriptive materials given to Reefer by it and its Personnel are, and at all times shall be, accurate and the Customer indemnifies Reefer against Claim caused by the Customer’s breach of this obligation.
8.4. If the Customer does not provide Reefer with details in respect of the Goods including weights, quantities, numbering and identifying marks, contents, values and descriptive materials, failure by Reefer to ascertain those details shall not prejudice any of Reefer’s rights.
9. TIME IS NOT OF THE ESSENCE AND OVERTIME
9.1. Time is not of the essence in providing the Services and Reefer is not liable to the Customer if it fails to provide the Services by any deadline requested by the Customer.
9.2. If you need our Services during Overtime, please notify us as soon as possible. We will do our best to accommodate your requests for the Services during Overtime but we cannot guarantee to do so and we are not liable to you if we fail to provide the Services during Overtime.
9.3. We charge extra for providing the Services during Overtime and we will agree these Prices with you, in writing, before we provide the Overtime Services.
10. STORAGE METHODS
10.1. Reefer in its sole and absolute discretion shall determine the storage methods to be employed in respect of the Services, unless clear and explicit written instructions to the contrary are given by the Customer and accepted in writing by Reefer.
10.2. Except where the Customer has specifically and in writing requested that the Goods be stored by Reefer in its bonded store and Reefer has agreed, in writing, to such storage, Reefer may store the Goods anywhere on Reefer’s premises.
10.3. Reefer shall not be liable for any Claim incurred as a result of its compliance with the Customer’s instructions.
11. BONDED STORE
11.1. Reefer is not obliged to store the Goods in its bonded store unless the Customer has requested such storage, in writing at least 5 business days before Goods are presented for receipt at Reefer’s premises and the Customer has agreed, in writing, to pay Reefer’s Prices for storing the Goods in its bonded store.
12. UNSOUND GOODS
12.1. Reefer shall not be obliged to accept for storage any Unsound Goods.
12.2. At any time Reefer may notify the Customer that the Customer must remove any Unsound Goods from Reefer's premises within 24 (twenty four) hours after Reefer sends that notice.
12.3. If the Customer does not remove the Unsound Goods within 24 hours after receiving Reefer’s notice to do so, Reefer may remove the Unsound Goods from its premises for storage elsewhere or for destruction, at the Customer’s risk and expense. The Customer is liable for all Claims sustained or incurred by Reefer in relation to such Unsound Goods and must pay all such amounts to Reefer on demand.
13. ACCEPTANCE TEMPERATURES
13.1. All Goods presented to Reefer for storage shall be at a temperature no higher than the APS Temperature. Should Goods be presented to Reefer at temperatures higher than the APS Temperature, Reefer shall, under no circumstances be held liable for any damage or deterioration of the Goods and Reefer may refuse to provide the Services in respect of such Goods.
13.2. If Reefer refuses to provide the Services in respect of Goods the temperature of which exceeds the APS Temperature, it must notify the Customer accordingly, in writing.
14. CUSTOMS FORMALITIES AND NO LIABILITY FOR CUSTOMS STOPS
14.1. Reefer may refuse to release or transfer Goods in respect of which Duty has not been paid until Reefer has received written authorization from Customs to do so.
14.2. The Customer indemnifies Reefer against all Claims sustained or incurred by Reefer in consequence of non-payment by the Customer of any Duty, tax or levy whatsoever imposed by any competent authority on the Goods.
14.3. AT LEAST ONE BUSINESS DAY BEFORE A CONTAINER WHICH HAS BEEN STOPPED BY CUSTOMS AND IS A CUSTOMS STOPPED CONTAINER IS DELIVERED TO REEFER’S PREMISES, THE CUSTOMER MUST NOTIFY REEFER THAT THE CONTAINER IS A CUSTOMS STOPPED CONTAINER as follows:
14.4. THE CUSTOMER MUST ENSURE THAT THE WORDS “CUSTOMS STOPPED-DO NOT OPEN” ARE CLEARLY HANDWRITTEN ON THE TOP OF THE SAD 500 DOCUMENTS ACCOMPANYING EVERY CUSTOMS STOPPED CONTAINER DELIVERED TO REEFER’S PREMISES; and
14.5. THE CUSTOMER MUST NOTIFY REEFER’S WAREHOUSE MANAGER TELEPHONICALLY OF THE DATE OF ARRIVAL OF EVERY CUSTOMS STOPPED CONTAINER AT LEAST ONE BUSINESS DAY BEFORE THAT CUSTOMS STOPPED CONTAINER IS DELIVERED TO REEFER’S PREMISES. THE CUSTOMER MUST ENSURE THAT THE TELEPHONIC NOTICE OF THE ARRIVAL OF A CUSTOMS STOPPED CONTAINER AT REEFER’S PREMISES IS CONFIRMED BY EMAIL TO REEFER’S WAREHOUSE MANAGER.
14.6. REEFER IS NOT LIABLE FOR ANY DUTY AND/OR ANY OTHER AMOUNT WHICH BECOMES PAYABLE IF THE CUSTOMER DOES NOT COMPLY WITH ITS OBLIGATIONS IN TERMS OF THE AGREEMENT IN RESPECT OF CUSTOMS STOPPED CONTAINERS.
15. NO WARRANTIES IN RELATION TO THE SERVICES
15.1. Reefer does not give any warranties or make any representations to the Customer in relation to the Services except as expressly included in the Agreement.
15.2. The Customer acknowledges that Reefer is not bound by any warranty or other representation or undertaking given by any person other than a director of Reefer, in a written agreement which is signed by that director.
16. DISBURSEMENTS
The Customer must reimburse Reefer immediately on presentation of invoice for all monies paid by Reefer on behalf of the Customer or in respect of the Goods, including railage and other transport charges.
17. TERMS OF PAYMENT
17.1. Reefer renders invoices for the Services at the intervals set out in the Quote. The Customer must pay all charges to Reefer within the payment period specified in the Quote.
17.2. All amounts payable to Reefer exclude VAT and all other applicable taxes and Duty, which must be paid simultaneously with Reefer’s charges and disbursements.
17.3. The Customer must pay Reefer by way of electronic funds transfer into the bank account notified by Reefer, in writing. Unless the Customer receives a call from one of Reefer’s directors advising that it has changed its bank details, Reefer will not change its bank details.
17.4. Payments for the Services provided must reflect in Reefer’s bank account as freely available funds, in South African currency, free of all bank charges, withholding, set-off, deduction or demand by the last business day when payment is due .
17.5. All outstanding amounts owing by a Customer shall immediately become due and payable on the earlier of the date that the value of the goods held by Reefer fall below 5 times the amount owing by the customer or the date that the Customer notifies Reefer that it wishes to withdraw its Goods held in store by Reefer. When the Customer wishes to withdraw all its Goods from storage at Reefer’s premises, Reefer shall release the Goods to the Customer only when the Customer has paid all amounts due to Reefer and the proof of payment has been received.
17.6. If payment is not made when due:
17.6.1. all amounts which are owing by the Customer to Reefer shall immediately become due and payable without notice to the Customer; and
17.6.2. interest accrues on the whole outstanding amount owing at the Interest Rate calculated from the due date of payment until the actual date of payment, both dates inclusive.
17.7. A certificate issued by a manager of Reefer whose appointment need not be proved, setting out the amount due, owing and payable by the Customer to Reefer is proof on the face of it of that amount.
17.8. If any new law is imposed or if any law changes and that causes Reefer’s costs to increase, Reefer may notify the Customer of those increases and Reefer may thereafter recover those additional costs from the Customer.
18. LIEN, PLEDGE AND OTHER SECURITY
18.1. The Customer warrants that it owns the Goods and that the Goods are unencumbered.
18.2. Irrespective of whether or not the Customer owns the Goods, the Customer agrees that it is liable to pay all amounts owed to Reefer in terms of the Agreement.
18.3. The Customer shall not in any way encumber the Goods without Reefer’s prior written consent on each occasion. The Customer shall ensure that any encumbrance of the Goods is subject to Reefer’s interest in and to the Goods and that Reefer’s interest is endorsed on the record of the encumbrance.
18.4. Reefer has a general lien over all the Goods in respect of which any of the Services are provided. The Customer expressly agrees that Reefer shall have this lien over the Goods received by Reefer, irrespective of whether or not the Customer owns the Goods. The Customer agrees that Reefer’s lien constitutes continuing covering security for all amounts owed to Reefer in terms of the Agreement and not just the Goods in respect of which an amount is owed.
18.5. If all or some of the Goods have been removed from Reefer’s premises, Reefer shall have a general lien upon the remainder of any other Goods of the Customer stored by Reefer.
18.6. The Customer hereby pledges to Reefer all the Goods received by Reefer in terms of the Agreement as security for any Claim which Reefer may have against the Customer and which arises directly or indirectly, from or in connection with the Agreement.
18.7. If the Customer fails to pay any amount to Reefer when due, then without prejudice to any of Reefer’s other rights, and without further notice to the Customer, at Reefer’s option, Reefer may sell all or any part of the Goods, either by public auction or by private treaty, and apply the proceeds of any such sale, after deducting all expenses thereof, to paying any sum due by the Customer to Reefer. Reefer shall account to the Customer for the balance, if any, of the proceeds of any such sale which remains after the sum due by the Customer to Reefer is paid in full.
19. ACCEPTANCE OF PROMISSORY NOTES OR BILLS OF EXCHANGE
The acceptance by Reefer of any promissory note or bill of exchange does not novate any existing debt, nor shall it affect any lien held by Reefer.
20. ENTIRE AGREEMENT
20.1. The Customer acknowledges that these STCs read with the Quote and any credit application made by the Customer and approved by Reefer, in writing, comprise the entire agreement between the parties and that no act or representation contrary thereto has been done or made by Reefer or any of its Personnel.
20.2. No variation of the Agreement shall be of any force or effect unless contained in a written agreement which is signed by both the Customer and Reefer.
21. NO RELAXATION
No extension of time or indulgence granted by Reefer to the Customer shall be deemed in any way to affect, prejudice or derogate from Reefer’s rights in terms of the Agreement , nor shall it in any way be regarded as a waiver by Reefer of any of its rights in terms of the Agreement.
22. FORCE MAJEURE AND TERMINATION OF CONTRACT
22.1. Notwithstanding anything to the contrary which may have been agreed by the parties, the Agreement shall terminate automatically and with immediate effect if the premises in which the Goods are stored are destroyed or so damaged to make them unusable from any cause whatsoever.
22.2. The Customer shall not have any Claim against Reefer arising from or in connection with the termination of the Agreement in terms of this clause.
22.3. Reefer is not liable for any failure to meet any of its obligations in terms of the Agreement, or any delay in meeting them, to the extent to which the failure or delay is caused by Force Majeure.
22.4. The following events or circumstances are examples of Force Majeure events provided that they also meet the requirements for a Force Majeure event set out in the definition of Force Majeure:
22.4.1. war, invasion, hostilities, civil war and acts of terrorism;
22.4.2. any riot, civil commotion, disorder, labour dispute, strike or lock-out by persons other than the employees of a party to this agreement;
22.4.3. natural catastrophes such as earthquakes, hurricanes, floods or droughts and inclement weather; and
22.4.4. shortages of components or ingredients due to natural catastrophes such as earthquakes, hurricanes, floods or droughts and inclement weather or contamination;
22.4.5. changes to any applicable laws;
22.4.6. the COVID-19 pandemic;
22.4.7. any other disease which causes an epidemic or pandemic;
22.4.8. changes to any laws in respect of the COVID-19 pandemic or any other disease which causes an epidemic or pandemic; and
22.4.9. any precautions adopted by Reefer in relation to COVID-19 pandemic or any other disease which causes an epidemic or pandemic.
22.5. Despite any other provision of this agreement, Force Majeure excludes any inability to meet a payment due by the Customer to Reefer because of lack of funds.
22.6. Reefer must give notice to the Customer as soon as possible after the Force Majeure occurs and must resume performing its obligations as soon as possible after the cause preventing performance has ceased.
22.7. Each party must take all reasonable and necessary steps at its own expense to mitigate the consequences of any Force Majeure which affect the performance of that party's obligations.
22.8. Should a Force Majeure event prevent Reefer from performing any of its obligations for a continuous period of 180 days, Reefer may terminate this agreement with immediate effect and by giving notice of termination to the Customer and in that event, the Customer must remove its Goods from Reefer’s premises within the period specified in Reefer’s termination notice.
23. REEFER DOES NOT INSURE THE GOODS
23.1. Reefer does not insure the Goods and is not obliged to insure the Goods, including if they are transported by Reefer or any of its Personnel.
23.2. The Customer must procure any insurance it considers necessary including insurance of its Goods against all risks and in transit.
24. APPLICABLE LAWS INCLUDED IN THE AGREEMENT AND REJECTED GOODS
24.1. The Customer must comply with all applicable laws relating to the storage and handling of Goods and for the purpose of the Customer’s compliance, those laws are deemed to form part of these STCs.
24.2. If Goods are rejected by any Government or other competent authority, the Customer must obtain a removal permit as soon as possible after the Goods are rejected and provide Reefer with that removal permit. The Customer is liable to Reefer for all Claims incurred or suffered by Reefer because the Goods are rejected and must pay such amounts to Reefer on demand.
24.3. If the Customer fails to obtain a removal permit for rejected Goods and remove them from Reefer’s premises within 90 days after the Goods are rejected, then after expiry of that 90 day period, Reefer’s Prices for storage as set out in the Quote shall increase in respect of the rejected Goods by 10% of such Prices for storage for every week or part thereof that the Goods remain in storage at Reefer’s premises.
25. COMPLIANCE WITH REEFER’S SITE RULES
25.1. The Customer must at all times comply with Reefer’s Site Rules and the Customer must ensure such compliance by its Personnel. The Customer is liable for any noncompliance by it or its Personnel with Reefer’s Site Rules and any Claim arising from that noncompliance.
25.2. The Customer must obtain the prior written consent of each of the Customer’s Personnel to:
25.2.1. submission to breathalyser testing and searches of their persons, possessions and vehicles by Reefer upon entering and/or leaving Reefer’s premises; and
25.2.2. to the processing by Reefer of their personal information including their names, identity numbers, vehicle registration numbers and driver’s licence numbers for the purposes of enabling Reefer to control access to its premises, protect, monitor and secure its premises and dealing with any Claims arising from or in connection with the provision of the Services.
25.3. The Customer agrees that Reefer may refuse to permit any of the Customer’s Personnel to enter Reefer’s premises if that person has previously failed to comply with Reefer’s Site Rules or if that person refuses to submit to any of the testing, searches or processing provided for in clause 25.2.
26. BREACH
If the Customer commits a material breach of the Agreement (and without limiting the generality of this clause, failing to pay any amount when due is deemed to be in a material breach) and fails to remedy that breach within 5 days after receiving written notice calling upon it to do so, then without prejudice to any of Reefer’s in terms of the Agreement or in law, Reefer may cancel the Agreement with immediate effect by giving written notice to the Customer or Reefer may claim specific performance and in both cases, claim damages.
27. APPLICABLE LAW AND CONSENT TO JURISDICTION
27.1. The Agreement shall be governed by and construed in accordance with South African law.
27.2. For the purposes of any legal proceedings which may arise between Reefer and the Customer, the Customer hereby consents to the jurisdiction of:
27.2.1. the High Court of South Africa; and/or
27.2.2. the Magistrate’s Court having jurisdiction, notwithstanding that the amount in issue exceeds the jurisdiction of the Magistrates Court.
27.3. Despite clause
27.2.2, Reefer may in its sole and absolute discretion elect to institute any legal proceedings in either the High Court of South Africa or the Magistrate’s Court.
28. GENERAL
28.1. The Customer may not cede, delegate or assign any or all of its rights or obligations in terms of the Agreement to any other person without Reefer’s prior written consent.
28.2. The Customer must notify Reefer of any changes to its members/majority or controlling shareholders/trustees/partners (Change in Control). Within 30 days after receiving notice of a Change in Control, Reefer may immediately terminate the Agreement or withdraw any credit granted to the Customer. If Reefer terminates the agreement or withdraws credit granted to the Customer, the Customer must immediately pay all amounts owed to Reefer.
28.3. The Customer must immediately notify Reefer of any changes to its address for service of notices in terms of the Agreement.
28.4. This Agreement is also for the benefit of, and binding upon, the respective successors in title and permitted assigns of the parties or any of them.
28.5. The rule of contract interpretation that ambiguous provisions shall be interpreted against the party responsible for drafting the contract shall not apply in the interpretation of the Agreement.
28.6. A reference to any legislation (including statutes, ordinances, regulations and by laws) means that legislation as at the Signature Date and as amended or re-enacted or substituted from time to time.
28.7. A reference to any statutory body or court or to any association for the purposes of appointing an expert or arbitrator means that statutory body or court or association as at the Signature Date and its successors.
28.8. A reference to South African law includes a reference to the equivalent law or process in any other jurisdiction in which the Agreement may apply or to the laws of which a party is, or becomes, subject.
28.9. The documents which are part of the Agreement are to be read together and if they conflict or are inconsistent, the provisions of the Quote prevail over the STCs.
Got questions regarding the above? Email us at info@reefercoldstorage.co.za
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