Index Part I Part II Part III Part IV Part V Part VI Part VII Appendices

 

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

1.0 STANDING OFFER
1.1 These Terms and Conditions as notified in the Johor Port Berhad's (hereinafter referred to as "JPB") website or through hard copies distributed by JPB to the User, its agents or by any manner deemed appropriate by JPB, shall constitute a STANDING OFFER upon which JPB makes its facilities and/or services 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 herein. 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 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 under any other contract between JPB and the User 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 and/or Facilities all in accordance with these Terms and Conditions of Business in consideration of the payment according to the rates as provided under the Tariff and any other circular or amendments in relation thereto issued by the relevant authorities from time to time.
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 the following:-

(a) If the User shall fail to observe or perform any of its obligations under the Business and shall not remedy its failure 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 include 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 and any successor Act including its by-laws enacted to provide for the establishment of a Malaysian Port Commission or any other authority and for the functions of such Commission or authority and for matters connected therewith, which together with the Ports (Privatisation) Act 1990 shall regulate the administration, management and operation of the Port by JPB;

'agent' includes unlicensed agents, representatives, brokers, freight forwarders, hauliers, persons acting in their capacities as total logistics providers, direct and indirect subcontractors and their respective servants, agents and/or representatives;

'Applicable laws' means the Free Zones Act 1990, the Ports (Privatisation) Act 1990, the Contracts Act 1950, the Limitation Act 1953 (Revised 1981) and any other laws in Malaysia applicable in the Port as may be amended from time to time;

'Applications' means the computer applications / facilities namely the Free Zone System, the Marine/Vessel Services System (MSS), the Container Terminal Management System (CTMS), Multi-Purpose Terminal System (MPTS), Port Safety Management System (PSMS) 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' shall mean the existing regulatory body established under the Act and the body empowered to regulate JPB under the Ports (Privatisation) Act 1990, until such time its functions are superseded by a Malaysian Port Commission or any authority established thereto.

'Business' refers to any dealings by electronic means or otherwise between JPB and the User, for the provision of Services granted by JPB to the User at the User's request whether with considerations or otherwise or transacted with or without a formal contract document;

'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;

'CTMS' means the Container Terminal Management System;

'EDI' means the Electronic Data Interchange of information form one computer to another computer.

'Free Zone System' means the system for the Free Zone operation and others as may be incorporated into the system from time to time;

'JPB' means the Johor Port Berhad acting in its capacity as a Port Operator under the Ports (Privatisation) Act 1990 and the Privatisation Agreement signed with the Government of Malaysia and the Authority, as the Land Manager under the said Privatisation Agreement and as the Free Zone Authority under the Free Zone Act 1990.

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

'ISPS' Code means the International Ship and Port Facility Security Code which became mandatorily applicable on 1st July 2004 on the following:

(a) vessels engaged on international voyages;

(b) passenger vessels including high-speed passenger craft;

(c) cargo vessels including high-speed craft of 500 gross tonnage and above and

(d) mobile offshore drilling units.

'Line' includes any person (including without limitation whether shipping companies, ship owners, charterers, consortiums, conference and brokers) having any interest in a vessel 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;

'MPTS' means the Multi-Purpose Terminal system used for conventional cargo.

'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 loading, landing or delivery 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 pilotage 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 Facility Security Officer' or its abbreviated term of reference "PFSO", means an appointed and qualified JPB officer, designated to facilitate the requirements of the ISPS, for the development, implementation, revision and maintenance of the port facility security assessment and plan in liaison with the Ship's Security Officers (SSO), Company Security Officers (CSO) and the Port Area Security Officer (PASO) as appointed by Johor Port Authority.

'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;

'PSMS' means Port Safety Management System;

'Restricted Areas' mean any areas identified by JPB to be restricted, within the requirements of the Protected Areas and Protected Places Ordinance 1959 (Revised Act 1959), to any unauthorised persons including Users, their personnel, invitees, vessel's crew and passengers. The Restricted Areas shall include the following areas and any additional areas as may be notified by JPB from time to time:

(a) JPB shore and water-side area immediately adjacent to any vessel berthed alongside any JPB wharf or jetty;

(b) JPB dangerous cargo jetties or Oil jetties;

(c) all JPB warehouses, wharves, yards where loading, unloading or storage and handling of cargo(es) and stores is being carried out;

(d) all locations within the Port where security-sensitive information including cargo documentations are held and where the JPB computer server rooms are located;

(e) all areas where dangerous goods and hazardous substances are stored or held;

(f) all vessel traffic management control rooms, terminal control rooms, safety and security surveillance control rooms or tower;

(g) all essential electrical, radio and telecommunications, water and other utility installations erected by JPB within the Port;

(h) other locations in the Port where access by vessels, vehicles and individuals are restricted.

'Tariff' shall mean the rates and charges to be paid to JPB based on the rates and charges as specified in the Schedule of the Scale of Rates Dues and Charges By-laws 1988 as may be amended from time to time or any successor by-laws of any Act as may be enacted arising from the establishment of the Malaysian Port Commission or any other authority which may supersede the Authority and for the functions of such Commission or authority and matters connected therewith, or any rates and or charges as may be agreed between the User and JPB in respect of the Business;

'Tariff By-Laws' shall mean the Scale of Rates Dues and Charges By-Laws 1988 or its successor by-laws which shall be enacted to supersede the said Tariff By-Laws.

'Terminal Manager' means the respective Head of the Container Department, Bulk and Break Bulk and Passenger Terminal Department, and includes his assistants and any other officer acting under or with his authority;

'Safety Manager' means the Head of the Port Safety Department of the JPB and includes his assistant(s), and any other officer acting under or with his authority;

'Services' means the provision by JPB of ship handling, cargo handling, container handling, logistics, water supply, internal haulage, collection of demurrage, reefer monitoring, container repairs and any other port services and facilities, including computerized and EDI services provided by JPB in order to cut down paper transactions between the Port and its users and including the provision of information by electronic means or otherwise which shall be subject to charges published in the Tariff and/or as may be contractually agreed between JPB 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 into and out of the Port Premises;

'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 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 references 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 which are listed under Annexure III) or not, which are required to be made by the User to the Port shall be digitally certified and signed by the User only 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 Insofar as all matters that concern the commercial procedure and practice carried out by JPB for the purpose of its Business and the Contract, the Act or its successor Act as the case may be, shall only be used as a guide for the interpretation of these Terms and Conditions of Business, and the Contract entered into based on these Terms and Conditions of Business in relation to such commercial procedure and practice shall at all times be independent of the Act for all intents and purposes.

7.7 Pursuant to the preceding Clause 7.6, except for the items prescribed in the Schedule in the Tariff By-Laws as may be amended from time to time and which shall be applicable in these Terms and Conditions of Business unless otherwise agreed upon, references to "Authority" in the Tariff By-Laws shall mean references to JPB, and that the by-laws provided in the Tariff By-Laws which relate to:

(a) Labour requisition under by-law 12;

(b) Conditions of hire of mechanical equipment, gears and appliances under by-law 13;

(c) General conditions under by-law 14 and

(d) Any other conditions not relating to the rates and charges prescribed in the Tariff By-Laws may be varied by JPB as deemed necessary for the efficacy of its Business within the requirements of the Applicable laws.
Pursuant to the preceding Clause 7.6, all other by-laws under the Act shall be used only as a guide for the interpretation of these Terms and Conditions of Business, as the by-laws are intended for the regulation by the Authority of the operation and management of the Port by JPB.

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 Conditions of Business. The liability of the User and JPB under these Terms and Conditions of Business shall be deemed to be superseded only to the extent required by tort or statute.

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 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, request, demand, or communication equivalent to notice with respect to the Services shall be given or made in writing by the User to JPB, or vice versa or posted on the website of JPB as the case may be or by using the computer Applications designed and implemented to support the Services.

10.2 Every notice, request, demand or other communication shall be given or made in writing by registered mail or by facsimile or by e-mail using the Applications, 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 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 and e-mail). In the event that notice is posted on the website of JPB, such parties being the intended recipients(s) of the notice shall be deemed to have had notification of the said notice.

10.3 In the event of failure of the Applications, every notice, request, demand or other communication shall be given or made in writing by registered mail or by facsimile or by e-mail 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 or by e-mail).

10.4 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.