TERMS & CONDITIONS

PART I
STANDING OFFER, DEFINITIONS, CONSTRUCTION AND SAVINGS, APPLICABLE LAWS

1.0 STANDING OFFER

1.1 These Terms and Conditions constitute a STANDING OFFER upon which Johor Port Berhad (hereinafter referred to as “JPB”) makes its facilities and services at the Port available to the Users.

1.2 The STANDING OFFER shall be deemed to be accepted either upon

(a) Receipt of notification/application from the User to JPB of the intention to use and/or engage any of the facilities and/or services at the Port as provided or made available by JPB,

OR

(b) the User transacting any Business with JPB.

2.0 ACCEPTANCE

Acceptance shall be deemed to create a distinct contract (hereinafter referred to as the Contract) in respect of each paragraph. If the whole or any part of any provision of these Terms and Conditions of Business shall be or become illegal, invalid or unenforceable for any reason whatsoever (including by reason of any statutory provision or by reason of any decision of any Court or any other body or authority having Jurisdiction over JPB and the User or the Business), such whole or part of such provision shall be deemed to be deleted from these Terms and Conditions of Business and shall not affect any other paragraph.

3.0 CUMULATIVE RIGHTS AND REMEDIES

The rights and remedies given to JPB under the Contract shall be cumulative remedies and shall not prejudice any other rights or remedies of JPB contained in the Contract or at law or the right of action or other remedy of JPB for the recovery of any sums due to JPB from the User or in respect of any antecedent breach of the Contract by the User.

4.0 SURVIVAL OF OBLIGATIONS

Notwithstanding the complete performance of the Contract or the termination of the Contract insofar as it relates to the User, the terms and conditions of the Contract shall remain in full force and effect between JPB and the User insofar as such terms and conditions shall remain unfulfilled or relevant.

5.0 CONTRACT

5.1 The Contract

JPB shall provide and the User shall accept the Services/Facilities in consideration of the payment as provided under the Tariff and any other circular in relation thereto issued by the relevant authorities from time to time, all in accordance with these Terms and Conditions of Business.

Any Business undertaken by JPB may be carried out by its authorised servants or agents, in which event all rights and protection from liability afforded to JPB by these Terms and Conditions of Business shall also be afforded to such persons.

5.2 Sooner termination for urgent reasons

Notwithstanding the other provisions to the contrary, JPB may terminate the Business forthwith at any time without any claim or charge by the User if JPB has an urgent reason for so doing.

Such urgent reasons shall include but not be limited to:-

(a) If the User shall fail to observe or perform any of its obligations under the Business and shall not remedy its failure within a reasonable time after JPB has notified the User of such failure;

(b) If JPB shall be of the opinion that the presence of the User’s cargo at any of the Port’s premises may lead to any claim against JPB, its servants or agents;

(c) If JPB shall be prevented from providing the Services/Facilities or if the Services/Facilities shall become unsuitable in any way for use due to any Force Majeure.

6.0 DEFINITIONS

In these Terms and Conditions of Business and in any agreement/contract entered into by JPB which includes these Terms and Conditions, the following words and expressions shall unless the context otherwise requires, have the following meanings:

‘Act’ means the Port Authorities Act, 1963 including its By-Laws;

‘agent’ includes unlicensed agents, direct and indirect subcontractors and their respective servants, agents and/or representatives;

‘Applications’ means the computer applications / facilities namely the Free Zone Information Processing System (FZIPS), the Marine/Vessel Services System (MSS), the Container Terminal Management System (CTMS) and the Conventional Cargo Management System (CCMS), Vessel Clearance System (VCS) and any other computer network applications as set up by JPB from time to time for purposes of conducting businesses of the Port in a paperless electronic environment;

‘Authority’ means the Johor Port Authority established under the Port Authorities Act and includes its employees and agents;

‘Business’ refers to any dealings by electronic means or otherwise between JPB and the User, including the provision of any services and/or the supply of any facilities granted by JPB to the User at the User’s request or application (whether by agreement or otherwise) and the engagement of such services and/or facilities whether with considerations or otherwise;

‘cargo’ includes livestock, minerals, wares, vehicles, passenger luggage and effects, merchandises and articles of every kind and description whatsoever whether containerised, in bulk or breakbulk or otherwise, and includes any part thereof. For the purpose of this Terms and Conditions of Business, the word ‘cargo’ shall be interchangeable with ‘goods’, wherever the context permits;

‘container’ shall mean any box or article of transport equipment (including tanks, flats and reefers) having a permanent character and being specially designed for the transportation of cargo by one or more modes of transport, without intermediate reloading, and fitted with devices permitting its ready handling by mechanical equipment, particularly its transfer from one mode of transport to another;

‘CCMS’ means the Conventional Cargo Management System;

‘CTMS’ means the Container Terminal Management System;

‘‘EDI’ means Electronic Data Interchange of information from one computer to another computer

‘FZIPS’ means the Free Zone Information Processing System;

‘Head of Marine’ shall mean the Head of Marine Department or any person appointed by JPB to act in that capacity;

‘Line’ includes any person (including without limitation whether shipping companies, ship owners and charterers) having any interest in a vessel and/or container and may include a person who is an operator;

‘master’ includes every person, except JPB’s pilots having for the time being the command or charge of any vessel;

‘MSS’ means the Marine/Vessel Services System;

‘operator’ includes any person who directly or indirectly enters into any arrangement, contract or agreement with JPB in relation to the transport, storage or distribution of cargo or containers or any matter connected therewith and includes exporters, importers, consignors and consignees thereof and may include, if appropriate, a person who is a Line;

‘owner’ in relation:

(a) to goods, includes any consignor, consignee, shipper or agent acting on behalf of the owner of such goods or for the sale, custody, shipping or landing of such goods;

(b) to vessel, includes any part owner, charterer, consignee or mortgagee in possession of the vessel agent acting on behalf of the vessel owner; and

(c) to container, includes part owner, lessee, operator, or agent acting on behalf of the container owner.

‘passenger’ shall mean any person who travels in or on any vessel whose name appears or is recorded in the vessel’s list of passengers on board excluding a child under one year of age;

‘persons’ includes corporations whether aggregate or sole;

‘pilot’ means any person not belonging to a vessel who has conduct thereof and who is duly licensed by the Authority to act as a pilot within the pilotage district and so engaged/employed (whether by contract or otherwise) by JPB for the purposes of the pilotage Services herein provided;

‘pilotage district’ refers to the pitotage district of Johor as declared under the Act and the approaches to the Port;

‘Port Limits’ refers to the gazetted Port Limits of JPB declared under Section 6 of the Merchant Shipping Ordinance, 1952 and or any other specified areas which may be gazetted from time to time as Port limits;

‘Port ‘ shall mean Johor Port as specified in the First Schedule of the Act;

‘Port premises’ shall mean JPB’s premises and shall include all terminals, places vested with JPB or administered, leased, owned, managed or occupied by JPB at the Port and appropriated by JPB. Such terminals and places shall Include but shall not be limited to areas used for the landing and shipping of goods and any portion of the bank of the river so vested or administered, leased, managed or occupied which has been improved to facilitate such landing and shipping and any foreshore so vested with JPB or occupied and used for such purposes;

‘Tariff’ shall mean the rates and charges to be paid to JPB based on the Scale of Rates Dues and Charges By-laws 1977 and the Ports (Privatisation) Act 1990 as may be amended from time to time, or any charges as may be agreed between the User and JPB in respect of the Business;

‘Terminal Manager’ means the respective Head of the Container, Bulk and BreakBulk and Passenger Terminal appointed by JPB and includes his assistants and any other officer acting under or with his authority;

‘Safety Manager’ means the relevant Head of Health, Safety and Security Department of the JPB and including his assistants, permitted assign and any other officer acting under or with his authority;

“Services” means ship handling, cargo handling, container handling, water supply and any other services, including computerized and EDI services provided by JPB in order to cut down paper transactions between the Port and its users.

‘unprotected cargo’ in relation to :-

(a) containerised cargo shall mean any cargo which are packed, stuffed, secured or stowed in or on a flat rack or u-rack or placed in an open-sided or open-top container or in a container where the bottom is not sufficiently secured or the container doors are not properly closed; and

(b) bulk or breakbulk cargo shall mean any cargo not placed in a carton or any form of packaging or protective covering;

whereby such packing, stuffing, storage or form of packaging would result in their loss in weight, value or quality or in their damage;

‘User’ includes any persons, customers, owners, operators and their respective representatives, successors and permitted assigns, having or transacting Business with JPB in any manner whatsoever;

‘VCS’ means the Vessel Clearance System;

‘vehicle’ includes a carriage travelling on its own wheels or runners and used or intended to be used for the conveyance or carriage of persons, animals or goods;

‘vessel’ includes every description of watercraft and include non-displacement crafts capable of being used as a means of transportation on water, barges, lighters and any mechanically propelled ship or boat or any seagoing or inland water craft including any floating objects used in navigation for the carriage of cargo, containers or passengers;

‘Wharf’ includes any quay, pier, jetty, ramp, landing place and any wall and building adjoining the foreshore, seabed or river bed.

7.0 CONSTRUCTION AND SAVINGS

7.1 In the construction of these Terms and Conditions of Business, no paragraph of any condition shall be taken to derogate from the generality of other paragraph.

7.2 Where the context permits, singular includes the plural and male gender includes female and neuter gender. In these Terms and Conditions of Business, any reference to more than one person, shall be construed as a reference to such persons or any one of them.

7.3 Reference in the Contract and in these Terms and Conditions of Business, to any statute includes a reference to such statute in force from time to time and any regulations or orders made under such statute.

7.4 For the purposes of and applicable throughout this entire Terms and Conditions of Business, any references to any:

(i) prescribed statutory forms, written applications, notices, notifications, circulars, orders, shipment manifests, permissions, advises, forms, directives, bills of lading, delivery order, etc.; or

(ii) any documents whatsoever similar to those listed above whether referred to or not in this Terms and Conditions of Business or any communications required to be in written form or any documents whatsoever as required or may be required by the Port to be used in any transaction or business with the Port;

which is required to be made by the User to JPB or vice versa in writing or in written form and/or communicated electronically through Johor Port Network, EDI or internet network for any particular business of the Port or circumstances whether expressly stipulated, or not, by the Port in this Terms and Conditions of Business shall be made by way of the Applications.

7.5 For the purposes of and applicable throughout this entire Terms and Conditions of Business, any reference(s) to certification required for any particular documents whatsoever as stipulated in this Terms and Conditions of Business shall mean the certification of document by use of digital signatures under the Digital Signature Act 1997.

Any and all documents or communications, whether referred to in this Terms and Conditions of Business (inclusive of all documents required for purposes of transaction of the Port services/facilities) or not, which are required to be made by the User to the Port shall be digitally certified and signed by the User or authorized persons by digital signature(s) issued or certified by a certification authority recognised by JPB.

Such digitally signed documents or communications (including copies thereof) shall, under the provisions of the Digital Signature Act 1997 and/or any other applicable laws of Malaysia in force at the time of the User’s acceptance of this Terms and Conditions of Business and continuing therefrom, be deemed to be written original documents with all attending rights and liabilities under law attaching to written original documents.

7.6 [Notwithstanding the procedures as may be set out in any Business or Service referred to herein this Terms and Conditions of Business, any transaction carried out by the User with JPB shall be in accordance with such operational rules, procedures and guidelines of the applicable department(s) of JPB, and the user manual(s) of the applicable Application(s), both of which may be amended by JPB from time to time.]

8.0 CONDUCT OF BUSINESS

EVERY BUSINESS CONDUCTED BY JPB IS SUBJECT TO THE EXCLUSIONS AND LIMITATIONS OF LIABILITY AS SET OUT IN THESE TERMS AND CONDITION BUSINESS. THE LIABILITY OF THE USER AND JPB UNDER THESE TERMS AND CONDITIONS OF BUSINESS SHALL BE DEEMED TO OPERATE IN ADDITION TO AND IN NO WAY DEROGATES FROM ANY LIABILITY WHICH BUT FOR THESE TERMS AND CONDITIONS OF BUSINESS WOULD ARISE BY CONTRACT, IN TORT, BY STATUTE OR OTHERWISE ON THE PART OF THE USER OR JPB.

9.0 APPLICABLE LAWS

These Terms and Conditions of Business shall be governed, construed and interpreted in all respects according to the laws in force in Malaysia, and in particular the Act and all parties to these Terms and Conditions of Business shall submit to the jurisdiction of the Malaysian courts.

10.0 NOTICE

10.1 Unless otherwise provided, every notice, or other communication equivalent to notice shall be given or made by in writing by the User to JPB or vice versa or posted on the website of JPB as the case may be.

10.2 Every notice, request, demand or other communication shall be given or made in writing by registered mail or by facsimile to the other party and shall be addressed to the party at its last known address, and it shall be deemed to have been received seven (7) days after being deposited in the post office (in the case of a notice by registered mail) or on the next business day following the day upon which it was duly transmitted (In the case of a notice by facsimile). [In the event that notice is posted on the website of JPB, such parties being the intended recipient(s) of the notice shall be deemed to have had notification of the said notice.]

10.3 JPB may in its absolute discretion where JPB considers appropriate or conducive to efficiency or expediency, choose to give any notice to the User in relation to any matter under the Terms and Conditions of Business which may include but not limited to any amendments or modifications of this Terms and Conditions of Business, by written circulars addressed to the User or any relevant agency or generally by electronic means or by posting a copy of such notices or circulars at the site office of any of JPB’s Terminals or such places where JPB deems fit.

11.0 WAIVER

No failure to exercise and no delay in exercising on the part of JPB In respect of any rights, remedies or privileges under these Terms and Conditions of Business or the general law shall operate as a waiver by JPB thereof.

PART II SERVICES

A. IN RELATION TO VESSELS

12.0 APPLICATION FOR A BERTH

12.1 Notification of Arrival

The User intending to call at the Port shall provide adequate notice by using CTMS in the case of container berths and CCMS in the case of conventional cargo berths to the respective Terminal Manager of the expected date and time of arrival of his vessel and supply information relating to such vessel in the following manner:

i. When applying for a berth for the handling of Bulk and Breakbulk cargo, the User shall give not less than forty eight (48) hours notice prior to the estimated time of arrival of its vessel; and

ii. When applying for a berth for the handling of containers, the User shall give not less than seven (7) days notice prior to the estimated date of arrival of its vessel.

12.2 THE USER SHALL ENSURE THAT THE INFORMATION PROVIDED IS ACCURATE. IT IS EXPRESSLY AGREED THAT by accepting and acting upon the information so provided, JPB shall not, at all material times, be subject to any liability or responsibility for any changes in the berthing schedules, delays, loss and/or damage resulting therefrom howsoever caused.

12.3 Allocation of Berths

(a) The allocation of a berth for any vessel calling at the Port is subject to the procedures and requirements as may be specified by the Terminal Manager who shall have the absolute discretion for the allocation of any berth.

(b) Allocation of berth shall be made by JPB or the Terminal Manager using the CTMS or CCMS subject to:

i. a written application by the User by entry into or keying in of data in the appropriate forms for such services by using of the CTMS or CCMS;

13.0 CLEARANCE BY GOVERNMENT AGENCIES FOR VESSEL TO BERTH AND TO DEPART

Shipping agents must submit the necessary applications to the various Government agencies, such as Marine Department, Immigration Department, Port Health Department, and in the case of Dangerous Goods carried onboard, to Chemistry Department, and the approval by these departments, through the Application called Vessel Clearance System (VCS), before the vessel can be berthed or depart from JPB.

14.0 VESSELS BERTHING, UNBERTHING AND ALONGSIDE

14.1 At all material times, the Master shall be and remain in command of his vessel and take all necessary steps to preserve her safety and security at his own risk and expense.

14.2 Every vessel approaching, leaving, berthed or while lying alongside the Wharf or in the Port’s Lay-Up areas does so at the sole risk and expense of the Master and shall remain in the charge of the Master.

14.3 The Master shall ensure and maintain at all material times, that the vessel:-

(a) will be navigated, berthed or unberthed safely and in compliance with all relevant legislation or regulation prevailing and in accordance with JPB’s operating procedures and safety requirements;

(b) will not ground while approaching, leaving or lying alongside the Wharf;

(c) will not break adrift from her moorings;