General Terms and Conditions
Star South Fruits (Pty) Ltd (registration # 2005/005955/07)
Star South Building, 9 Church Street, Wellington, 7655
The below referenced are the General Terms and Conditions (“GTC”) under which Star South Fruits (Pty) (“Star South”) undertakes the contracted work, delivery agreement, or the Supply and Marketing Agreement (collectively referred to as the “Work”), and these GTC apply to all transactions and apply throughout the course of the transaction with Star South unless otherwise agreed in writing as prepared by Star South and approved by the Managing Director. Star South reserves the right to amend, modify or change the GTC at its sole discretion, without the requirement of advance notice, and applicable to all pending work to the extent such work has not commenced upon the date and time of the change.
All terms used in the context of the Work are those terms as defined by the International Chamber of Commerce (“ICC”), 8th Edition, International Commercial Terms (“INCOTERMS”), published January 1, 2011 (as otherwise amended) commonly known as INCOTERMS 2010. All disputes involving the terms used shall be heard in The Hague, Netherlands, before the International Chamber of Commerce, International Court of Arbitration, with administrative headquarters in Paris, France as the agreed initiation point, with the exception of claims of less than $1,000,000 USD which shall be heard by the Arbitration Foundation of South Africa, Pretoria, South Africa. The forum shall appoint a single arbitrator with at least ten (10) years of maritime commercial trade experience to hear any claims arising under the GTC. Should a judgment be entered in any proceeding the party which fails to better its position from the last written offer it made to the other party shall be required, as a result, to pay all of the costs of the proceeding assessed by the forum.
All references to law or legal requirements shall refer exclusively to the INCOTERMS 2010, the terms of Work, and custom and practice of the parties to the extent such differs from same. Interpretation of law shall be by reference to the specific laws of South Africa for all Work. The terms of Work shall be those agreed to by Star South and the parties in writing prior to the commencement of the performance of the Work (including but not limited to currency of exchange, merchandise unit size and packaging, and INCOTERMS), and thereafter shall be amended only in writings prepared by Star South and approved by the Managing Director.
Compliance with all laws of relevant jurisdictions is required of all parties engaged with Star South. All parties shall act in compliance with the anti-corruption laws of all countries with jurisdiction over the work undertaken, including but not limited to the following: the United States of America ( “Foreign and Corrupt Practices Act”), United Kingdom (“Bribery Act of 2010”), European Union (various nations), Peoples Republic of China (“Criminal Law §164 and the Anti-Unfair Competition Law”), the Russian Federation (“Russian Federal Anti-Corruption Law 273”), the Republic of South Africa (“Prevention and Combating of Corrupt Activities Act”) and the relevant laws of the other nations of the African Union where applicable. More specifically, the customer agrees to provide Star South with adequate information to comply with all laws relevant to the “Know Your Customer” (“KYC”) legislation in all countries relevant, including, but not limited to, South Africa - Financial Intelligence Center Act 38 of 2001 (as amended), and the Netherlands - Money Laundering and Terrorist Financing (Prevention) Act (2008). The customer agrees that Star South may obtain the customer’s disclosures to any other Mandatory Reporter and may provide the customer’s disclosures to any requesting Mandatory Reporter, in addition to any disclosures required by law. The party violating any such laws shall indemnify and defend the other against all claims made and penalties imposed by the appropriate legal authorities. Star South, other than for its own employees and authorized agents, shall not be responsible nor held liable to any party for any claims made of an act or occurrence is a violation of law whether said act or occurrence is arising in relation to the Work or in any other capacity served by Star South. Star South shall reserve the right to appoint counsel and direct any defense of such claims made by governmental authorities.
All claims arising as a result of the Work for which non-conformity of goods or damage to merchandise or any other irregularity is alleged (“Claim”) shall be handled pursuant to the written Consignee Claims Initiation Report (“Claims Report”) which is posted on the Star South Web site, and will be separately provided by Star South to the party making the claim upon written request. In addition to all other requirements set forth in the Claims Report, and the terms of the Work, the party making the Claim has a duty to make safe from harm, theft, and spoliation the merchandise and keep same is as good an order and condition as when the merchandise was inspected, received, or the Claim initiated (whichever occurs first). The party making a Claim has the affirmative duty at all times to inspect the merchandise at the first opportunity allowed by law. In no event shall a Claim be accepted by Star South if not delivered in writing to Star South (i) containing the information required by the Claims Report, (ii) with confirmation of receipt by Star South of the Claims Report, and (iii) delivery of the Claims Report within 72 hours of the docking of the vessel or landing of the aircraft at the Port of Entry designated by the Work. Any failure to comply with the GTC, the requirements of the Claims Report, interference with the appointment or work of the 3rd party inspector or Surveyor, or failure to perform the duties of the party (including payment for merchandise not subject to the Claim) as set forth in the GTC, the Claims Report or the terms of Work, shall void any right of the consignee to recover for a Claim. In addition to the Claims Report, the terms of Work, and the GTC, Star South reserves all other lawful rights and remedies allowed to it arising from a Claim including but not limited to spoliation of merchandise, breach of contract, and all other common law and statutory defenses to a claim of loss. The payment of a claim shall require, among all other conditions of the insurance carrier, that the consignee assign to or subrogate to the insurance carrier all claims of loss, cooperate fully in the prosecution of such claims, and acknowledge a right of the insurance carrier to offset, recoupment or other recovery for failure to so comply with these conditions of payment.
Credit Insurance, where applicable, maybe be required by Star South at its sole discretion. The decision to so require, and the decision to apply for remedy from said Credit Insurance shall be made solely by Star South without recourse by any other party. No liability may attach to Star South for said decision(s) to require or make a claim on Credit Insurance, and the party who is so subject to Credit Insurance may not make or assert any claims of loss against Star South for the exercise of such decision(s). Star South reserves the right to report the conduct of a party to the Credit Insurance carrier at its sole discretion, and Star South shall be held harmless by such party for any such reporting.
Star South reserves the right to refuse to perform Work for any party which becomes insolvent, subject to a receivership or business rescue, or has other indicia of an inability or uncertainty to pay for the Work (“Insolvency Event”), regardless of at what point in the transaction Star South makes a determination of an Insolvency Event. Star South may at its sole discretion determine that the party is subject to an Insolvency Event, or is otherwise unable to perform its payment obligations, without recourse by the party against Star South for the exercise of that discretion. Star South may re-sell, re-direct, or otherwise dispose of the merchandise in a commercially reasonable manner upon making such a determination, and shall provide written notice to the party of the decision and disposition of the merchandise within a reasonable time. Star South reserves all other rights against the party for contracted compensation, lost profits, money damages, and the costs of merchandise disposition in addition to those other rights set forth in the GTC, the terms of Work, and allowed by law.
Acts and omissions beyond the control of Star South, such as but not limited to, loss of insurance coverage for the merchandise or the party contracting, acts of piracy, armed conflict, terrorist acts, natural disasters, currency instability in country of destination, and actions of government (collectively “Force Majeure”), to the extent they interfere with, make impracticable, or commercially unreasonable the performance of the terms of Work, such acts shall relieve and absolve Star South of its obligations for performing the Work. Star South shall provide written notice to the party of the Force Majeure event relief from performance of the Work. To the extent not compensated for by insurance coverage or through loss mitigation measures, Star South shall be entitled to be paid for its costs of performing the Work, and to the extent applicable, shall be entitled to a refund of any sums prepaid, relief from any sums due to be paid, and shall be entitled to be restored to the economic position it held prior to the Force Majeure event relief exercise. In no event shall Star South be subject to a Claim for any loss or damage arising to any party as a result of a Force Majeure event.