STANDARD TERMS AND CONDITIONS OF TRADE
1. QUOTES AND ORDERS
1.1 Port of Call Consulting CC (“POC”) has provided you with a quotation (“the Quote”) containing the costs at which the underwater ship maintenance and other services (collectively “Contracted Services”) which you require may be performed by various independent third party service providers identified in the Quote.
1.2 You may accept the Quote by giving POC a written notice (“Order”) to that effect, addressed to the independent third party service provider (“Contractor”) whom you require to provide the Contracted Services, within the period for which the Quote is valid in respect of the relevant Contractor. Any Order addressed to POC shall be deemed to be addressed to the Contractor concerned.
2. AGENCY SERVICES AND SERVICE FEE
2.1 By requesting the Quote from POC, you are deemed to have appointed POC on these standard terms and conditions of trade (“STC’s”) and any other terms and conditions which you agree with POC in writing, to act as your agent to:
2.1.1 provide you with the Quote;
2.1.2 secure the Contractor’s performance of the Contracted Services as contained in your Order, on your behalf; and
2.1.3 where agreed with POC in writing, collect and make payment for the Contracted Services to the Contractor on your behalf.
2.2 Each Order constitutes a separate contract for the services (“Agency Services”) provided by POC as set out in clause 2.1. By accepting the Order, in return for performance by POC of the Agency Services, you agree to pay POC a fee (“Service Fee”) of 10% of the total cost of the Contracted Services (including VAT) as set out in the Order, or such other amount agreed in writing with POC.
2.3 Unless POC sets out the Service Fee separately in the Quote, the Service Fee shall be deemed to be included in the cost of the Contracted Services set out in the Quote.
2.4 From the date on which POC receives your Order, you are liable for the full Service Fee. You are liable for the full Service Fee even if:
2.4.1 you cancel your Order at any time after you have submitted your Order to POC; or
2.4.2 you do not permit, or make it impossible for the Contractor to perform the Contracted Services contained in your Order on the date, and/or at the time and place agreed to by the Contractor.
3. INFORMATION AND INSTRUCTIONS
3.1 You must provide POC with all necessary information which POC requires to enable it to provide the Agency Services to you.
3.2 You warrant that all information which you provide to POC in respect of the Contracted Services which you require, is complete, accurate and true. If any of the information which you provided to POC changes at any time, you must immediately notify POC of the change in writing and you are responsible for all the consequences of such change.
3.3 POC is not liable for any loss or damage which you suffer arising from or as a consequence of the information and instructions which you provide to POC relating to the Contracted Services. POC is not bound by any oral instructions, but may act on those instructions if it chooses to do so.
4. PERFORMANCE OF CONTRACTED SERVICES
4.1 All Contracted Services are performed by the Contractor and not by POC. POC is only appointed by you to perform the Agency Services set out in clause 2.1.
4.2 The Contracted Services are performed by the Contractor on the Contractor’s terms and conditions, a copy of which you may request from the Contractor. By submitting your Order for the Contracted Services to POC, you agree that:
4.2.1 you will be bound by the terms and conditions on which the Contractor agrees to provide the Contracted Services to you; and
4.2.2 POC may contract with the Contractor on your behalf on the Contractor’s terms and conditions, but subject to any specific written instructions which you provide to POC.
4.3 If you are acting as an agent for a third party, you warrant that you are authorised to appoint POC to provide the Agency Services for the third party in accordance with these STC’s.
5. CHANGING YOUR ORDER
If after submitting your Order to POC, you wish to change the date, time or nature of the Contracted Services you require, although POC may assist you with such changes to your Order:
5.1 POC is not responsible for any changes to your Order which the Contractor cannot accommodate or does not agree to; and
5.2 you will be liable to pay the Contractor any extra costs which the Contractor may charge to accommodate your requested change.
If POC and/or the Contractor requires you to pay an amount (“Deposit”) in advance to secure the Agency Services and/or the Contracted Services, you must within the period specified by POC and/or the Contractor by written notice to you, pay the Deposit into a bank account nominated by POC and/or the Contractor for such purpose.
7. PAYMENT OF THE SERVICE FEE
7.1 Unless POC agrees otherwise in writing, the Service Fee shall be included in the Contractor’s tax invoice for the Contracted Services and is payable in the currency specified in the Contractor’s tax invoice, within the period specified for payment in the Contractor’s tax invoice and in accordance with the Contractor’s terms of payment.
7.2 By paying the Service Fee to the Contractor, you are deemed to have instructed the Contractor to pay the Service Fee to POC within 7 days after the due date for payment of the Contractor’s tax invoice in respect of the Contracted Services.
7.3 POC may allocate any payment which you make to POC for any purpose, to reduce or settle any Service Fee which you owe to POC in terms of any Agency Services which POC has provided to you.
7.4 If any dispute regarding these STC’s and/or the Agency Services and/or Contracted Services arises, you may not withhold payment of any amount which you owe to POC in terms of these STC’s.
7.5 Your obligation to pay for the Agency Services is only discharged when POC receives payment of the whole amount of the Service Fee from you or the Contractor, as the case may be.
8. PAYMENT FOR THE CONTRACTED SERVICES
8.1 The Contractor may invoice you directly, or may invoice POC on your behalf, for the amounts which you owe to the Contractor for the Contracted Services. The Contractor’s tax invoice may include the amount which you owe to POC for the Agency Services.
8.2 You must pay the full amount reflected on the Contractor’s invoice to the Contractor in accordance with the Contractor’s terms of payment, and into the bank account nominated by the Contractor for such purpose.
8.3 Your obligation to pay for the Contracted Services is only discharged when the Contractor receives the whole amount payable for the Contracted Services in its nominated bank account.
9. LIMITATION OF LIABILITY, INDEMNITY AND INSURANCE
9.1 POC has no control over the Contracted Services provided by the Contractor or the manner in which the Contractor provides the Contracted Services. POC shall not inspect, examine or oversee any Contracted Services provided to you by a Contractor.
9.2 You must satisfy yourself as to the suitability of the Contractor which you select to provide you with the Contracted Services, in particular, the Contractor’s expertise, capacity and reputation.
9.3 POC and its members and employees (collectively “Personnel”) are not liable for any loss, damage or harm which you or your Personnel suffer from, or as a result of, the Agency Services and/or any Contracted Services which any Contractor provides to you, including as a result of:
9.3.1 any negligent act, omission or statement by POC and/or its Personnel;
9.3.2 any act or omission, including any negligent act or omission, of any Contractor;
9.3.3 any circumstances beyond POC’s reasonable control and which temporarily or permanently delay, or partly or totally prevent, the performance by the Contractor and/or POC of any or all of its obligations;
9.3.4 any circumstances beyond POC’s reasonable control and which temporarily or permanently delay, or partly or totally prevent, the performance by the Contractor and/or POC of any or all of its obligations;
9.3.5 a Contractor’s failure to carry out any Contracted Services in accordance with your instructions, or at all.
9.4 You indemnify POC and its Personnel against any claim of any nature for loss or damage of any nature made by any third party, including any Contractor, against POC or any of its Personnel, arising from or in connection with these STC’s, the Agency Services and/or the Contracted Services provided by a Contractor.
9.5 If, for any reason, despite the provision of these STC’s excluding POC’s liability, POC is held to be liable for a claim, POC’s liability is limited to twice the Service Fee payable for the Agency Services from which the claim arose.
9.6 You must ensure that you take out and maintain appropriate insurance cover to cover you in respect of the risks which you assume in terms of these STC’s.
10.1 The parties agree that any legal proceedings arising out of, or in connection with, these STC’s shall be instituted in a division of the High Court of South Africa having jurisdiction. You irrevocably submit to the jurisdiction of the High Court of South Africa in respect of all such proceedings.
10.2 Any invoice, notice or communication in terms of these STC’s must be in writing to be effective and must be sent by hand, telefax or e-mail to the parties’ respective head offices, which physical addresses the parties select as their respective domicilium citandi et executandi and in the case of POC, its head office address is that set out on its letterhead.
10.3 Any invoice, notice or communication shall:
10.3.1 if delivered by hand during business hours to the person apparently in charge of the premises selected by the addressee for the delivery of notices, be deemed to have been received on the date of delivery;
10.3.2 if sent by registered post to the selected address, be deemed to have been received 6 days after posting;
10.3.3 if telefaxed to the selected telefax number, be deemed to have been received on the first business day following the date of transmission; and
10.3.4 if sent by e-mail to the selected e-mail address of the addressee, be deemed to have been received on the first business day following the date on which it has been transmitted from the information system under the control of the sender.
10.4 Any written notice or communication which has actually been received by a party shall be regarded as sufficient notice even if it has not been sent in the manner or to the address/telefax number provided for above.
10.5 Whenever any number of days is prescribed, it excludes the first and includes the last day unless the last day falls on a Saturday, Sunday or South African public holiday, in which case the last day will be the next succeeding business day.
10.6 No agreement varying, adding to, deleting from or cancelling these STC’s (including this clause) and no waiver of any right under these STS’s shall be effective unless in writing and signed by or on behalf of the parties.