As adapted from the conditions formulated by the INTERNATIONAL SHIP SUPPLIERS ASSOCIATION (I.S.S.A) 1995 edition and deposited at the HAGUE, Netherlands
These Standard terms and Conditions shall apply to, and be deemed incorporated into, all contracts entered into with HERMES SHIP CHANDLERS (PTY) LTD ("Hermes"), to the supply by Hermes (in its own name or under any trading name) or by any of its subsidiaries of any Goods and supplies of any nature and to the rendering by Hermes of any service whatsoever to any party.
In these conditions, unless inconsistent with the text:
Wherever they appear in these terms and conditions, the following words shall be ascribed the meanings indicated below:
"Goods" shall include all ship stores, supplies, food stuffs, equipment and any other goods of whatsoever nature;
"the vendor" shall mean Hermes;
"the purchaser" shall mean shipowners and their representatives such as agents, brokers, managers, masters, officers and crew members, in charge of purchasing of Goods and any other party who orders Goods from the vendor.
Unless otherwise expressly agreed in writing, the following conditions shall automatically apply to every single order submitted to, and delivery made by, the vendor and/or to any sequence of such orders and deliveries of Goods.
2.1 The purchaser shall communicate any order or orders for Goods as soon as reasonably practicable to the vendor.
2.2 Provided that the prevailing circumstances reasonably permit, the vendor shall supply and deliver to the purchaser the Goods as ordered at the time and place stipulated by the purchaser insofar as such Goods are available at the agreed port or port area.
2.3 Risk in and to the Goods shall pass from the vendor to the purchaser once the Goods are loaded on to the truck, vehicle or other means of conveyance for delivery to the purchaser. Delivery of the Goods from the vendor to the purchaser shall take place at the nearest point to the ship where the truck, vehicle or other conveyance can be unloaded, on the unloading of the Goods from the truck, vehicle or other conveyance. Ownership in the Goods shall not pass on delivery.
2.4 If delivery is requested outside the normal hours of the port or port area or on Saturdays, Sundays or public holidays, any extra expenses incidental to such delivery shall be paid by the purchaser as additional costs.
2.5 Once the Goods have been unloaded from the truck, vehicle or other conveyance at the point of delivery, the purchaser shall take the Goods on board the ship at his own risk and cost by means of his own equipment and personnel.
2.6 The purchaser shall refund any costs or expenses incidental to any waiting period beyond a reasonable time to the vendor.
3.1 Where no price has been quoted by the vendor to the purchaser, and subject to condition 3.2 below, the vendor shall charge to the purchaser the prices current at the relative port or port area at the time of delivery including any charges for transportation, loading or unloading, in respect of the Goods supplied by the vendor.
3.2 The vendor may, if requested by the purchaser, send to the purchaser a list, stating the prices of Goods and the period for which such prices are to apply. If such a list has expired and not been renewed, or no quotation has been given by the vendor to the purchaser, then condition 3.1 shall apply.
4.1 The Goods shall be of suitable quality as determined at the time and place of delivery. The Goods shall be supplied in the packing customary at the time and place of delivery. At the time of placing his order, the purchaser shall inform the vendor of any special packing requirements in view of the destination of the ship and/or Goods. Any additional expenditure incurred in complying with such requirements shall be chargeable to the purchaser.
4.2 Returnable packing material and containers supplied by the vendor shall be clearly marked as such on the receipt note and shall be returned by the purchaser to the vendor as soon as reasonably practicable.
4.3 Returnable packing material and containers shall be charged separately at the prices current at the time and place of delivery. The amounts so charged shall be refunded by the vendor to the purchaser provided such packing material and containers are returned undamaged within a reasonable period.
5.1 Subject only to condition 5.2 below, by taking delivery of Goods and signing the accompanying delivery note or Dock Pass, the purchaser shall be deemed to have approved and accepted the Goods in every respect.
5.2 Any claim by the purchaser must in writing and received by the vendor at the vendor's usual business address within one calendar month of delivery.
5.3 In the case of all Goods, if any such claim is not received by the vendor within one calendar month of delivery of the Goods all rights of the purchaser or any assignee of the purchaser in regard thereto shall lapse and no proceedings will be competent to enforce any such claim.
5.4 In any event, the liability of the vendor in respect of any claim will be limited to the repayment of the purchase price of any Goods proved to be defective at the time of delivery (and not attributable to any fault or negligence of the purchaser, or any inherent vice in the Goods), subject also to the Goods being returned or landed against receipt from an I.S.S.A. representative, insofar as the same is reasonably possible. If no I.S.S.A. representative is available, the purchaser shall arrange for a Lloyd's Report as evidence of any alleged defect.
5.5 The purchaser shall, in any event, only be entitled to a repayment of the price, if he proves that since they were delivered to him, the Goods were continuously handled, treated and stored by the purchaser in a reasonable manner, in keeping with the nature of the Goods and their propensity to deteriorate.
5.6 The purchaser shall in no circumstances whatsoever be entitled to make any claim for consequential loss, damage or injury arising out of the supply, or late supply or failure to supply, of any Goods by the vendor to the purchaser.
5.7 Any complaint by the purchaser in regard to the vendor's invoice will be absolutely barred unless received in writing by the vendor at his usual business address within 30 calendar days of despatch of the invoice.
6.1 Unless the vendor has agreed in writing specific credit terms with the purchaser, the purchaser shall pay the invoiced amount or amounts before the ship's departure.
6.2 In all cases, payment shall be made applying rates of exchange prevailing on the day of payment.
6.3 The vendor shall be entitled to collect interest from the purchaser on all overdue or unpaid sums at a rate of 2.5% per month.
6.4 Where the vendor has agreed with the purchaser a discounted price based on payment within a specified period, the purchaser's right to such discount will be conditional upon his making full payment within such period and the discount will be automatically cancelled and no longer apply in the event that payment is not made within such period.
6.5 In the event that the vendor has to arrest a ship for non-payment of debt, the vendor shall be entitled to collect from the purchaser in addition to the principal sum and interest thereon all legal costs or expenses resulting from the arrest, including costs on an attorney-and-own client scale.
6.6 Ownership in the Goods to be delivered to the ship shall not pass to the purchaser until he has paid for them in full.
6.7 Where Goods are ordered by a party as agent or broker (hereinafter called "the agent") for a shipowner (hereinafter called "the principal"), whether disclosed or undisclosed, the agent, by concluding a contract with the vendor as agent or broker, nevertheless irrevocably and unconditionally guarantees to the vendor the due performance by the principal of the obligations of the purchaser under these conditions in the following manner:
6.7.1 Whenever the principal does not perform of any of his obligations, including his obligation to pay for the Goods, the agent shall, within 7 days of written notice being given to the agent by the vendor, perform the same;
6.7.2 The fact that the agent has granted an extension of time to the principal within which payment may be made, or has given, or consented to the giving of, any other concession to the principal, shall not exempt it from liability to the vendor in terms of clause 6.7.1 above.
6.7.3 The fact that the agent has not been placed in funds by his principal shall not exempt the agent from liability to the vendor in terms of clause 6.7.1 above.
6.7.4 This guarantee of the principal's obligations by the agent shall remain in force for as long as the principal has or may have any obligation or liability under these conditions;
6.7.5 The agent shall have no right to require the vendor to institute proceedings first against the principal for the enforcement of the obligations of the purchaser under these conditions.
7.1 If the vendor is unable to make delivery, or to make delivery in good time, owing to force majeure (which shall include all or any circumstances or conditions for which the vendor cannot be held responsible and as a consequence whereof it is not reasonably possible to make delivery in good time or not at all), then the vendor's obligation to deliver shall cease or if appropriate be suspended for the duration of such force majeure.
8.1 These conditions shall apply to all business conducted by the vendor, whether gratuitously or for reward.
9.1 A dispute shall be deemed to exist if either of the parties fails to satisfy a debt owing by him to the other party or fails to comply with a demand made by the other party.
9.2 Disputes arising out of or incidental to any agreement entered into on these conditions and any further agreement resulting therefrom shall in the first instance be subject to the exclusive jurisdiction of the division of the High Court of South Africa (Exercising its Admiralty Jurisdiction) within which the Goods were delivered by the vendor to the purchaser, but the vendor shall have the option to submit the dispute to the jurisdiction of a competent Court at the place of domicile, or the principal place of business of the purchaser.
9.3 These conditions shall be governed and construed according to the law of the Republic of South Africa.
10.1 No relaxation or indulgence granted by the vendor to the purchaser in regard to any of the terms and conditions hereof shall be deemed to be a waiver of any of the vendor's rights, nor shall any such relaxation or indulgence be deemed to be a novation of any of these terms and conditions.
11.1 If in terms of any judgement or order, any phrase, sentence, paragraph or clause of these terms and conditions is found to be defective or unenforceable for any reason, then the remaining phrases, sentences, paragraphs or clauses, as the case may be, shall nevertheless be and continue to be of full force and effect.