Terms & Conditions
STANDARD TRADING CONDITIONS
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIABILITY AND LIMITATION).
1.1. The following definitions and rules of interpretation apply in these Conditions:
the current edition of the British International Freight Association Standard Trading Conditions.
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
the charges payable by the Customer for the supply of the Services in accordance with clause 5.
M&S Logistics Limited registered in England and Wales with company number 03597897, a trading member of BIFA.
has the meaning set out in clause 4.1(g).
these terms and conditions as may be amended from time to time in accordance with clause 10.1.
as defined in the BIFA Conditions.
has the meaning set out in clause 4.2.
Data Protection Legislation
the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Intellectual Property Rights
patents, [utility models,] rights to inventions, copyright and [neighbouring and] related rights, [moral rights,] trade marks [and service marks], business names and domain names, rights in get-up [and trade dress], goodwill and the right to sue for passing off [or unfair competition], rights in designs, [rights in computer software,] database rights, rights to use, and protect the confidentiality of, confidential information (including know-how [and trade secrets]), bespoke plans and materials for projects, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
the services supplied by the Company to the Customer as set out in the Specification.
the description or specification of the Services to be provided as agreed by the Company and the Customer.
as defined in the BIFA Conditions, including any ISO tank container or any other tank container used for the transport of liquids, gases, powders or other bulk cargo, and any accompanying equipment.
UK Data Protection Legislation
all applicable data protection and privacy legislation in force from time to time in the UK [including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.]
1.2. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4. A reference to writing or written includes email.
2. Application of Conditions and Basis of Contract
2.1. All and any activities undertaken by the Company in the course of business, whether gratuitous or not, are undertaken subject to these Conditions.
2.2. These Conditions expressly incorporate the following additional conditions, which shall apply pursuant to clause 2.1 as if the same were out in full in the body of these Conditions, and shall be read in conjunction with these Conditions (and, for the avoidance of doubt, any reference to these Conditions shall be deemed to include such additional conditions as the context requires):
a. for all Services, the BIFA Conditions.
2.3. Without prejudice to the foregoing, the Customer acknowledges that where the Company issues a bill of lading, waybill or other document incorporating the Company’s house bill of lading conditions, those conditions shall also apply to the relevant parts of the Services in addition to the Conditions as set out in clauses 2.1 and 2.2 above.
2.4. In the event of a conflict between these Conditions and the additional conditions referred to in clauses 2.2 and 2.3, these Conditions shall prevail and, where relevant, the BIFA Conditions (as may be applicable) shall prevail over the Company’s house bill of lading conditions as set out in clause 2.3.
2.5. If any part of these Conditions is repugnant to any international convention or other legislation which applies by force of law to any business undertaken pursuant to these Conditions, then the relevant part of such international convention or other legislation shall prevail to that extent and no further.
2.6. Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described therein and shall not form part of the contract between the Company and the Customer or have any contractual force.
2.7. Save as expressly set out above, these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.8. Any quotation given by the Company shall be deemed made subject to and in accordance with these Conditions, and shall only be valid for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1. The Company shall supply the Services to the Customer in accordance with:
a. the BIFA Conditions.
3.2. The Company shall use reasonable endeavours to meet any performance dates as may be agreed between the Company and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. The Company reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
3.4. The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
4. General Obligations of the Customer
4.1. The Customer shall, in addition to all warranties, undertakings, indemnities and other obligations of the Customer set out in the BIFA Conditions as may be applicable:
- co-operate with the Company in all matters relating to the Services;
- provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, and other facilities as reasonably required by the Company;
- provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- prepare the Customer’s premises for the supply of the Services;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- comply with all applicable laws, including health and safety laws;
- without prejudice to the provisions of clause 9 below, keep all plans, materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
- comply with any additional obligations as may be set out in the Specification.
4.2. If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
- the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
- the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
- Charges and payment
5.1. The Charges for the Services shall be calculated on the basis of the rates set out in the quotation and shall be subject to review at the Company’s discretion a) in the event of any external factor impacting the basis on which the rates were originally calculated; and b) in accordance with any mechanism as may be agreed between the parties; or c) if no such mechanism is agreed, annually. Without prejudice to the foregoing, the Company shall be entitled to charge for any additional costs and expenses not set out in the quotation incurred as a result of the Company complying with the Customer’s instructions.
5.2. The Customer shall pay each invoice submitted by the Company:
- on receipt of invoice or in accordance with such other credit terms as may be agreed by the Company and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by the Company, and
- time for payment shall be of the essence of the Contract.
5.3. Where any taxable supply for VAT purposes is made by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4. The Company reserves the right to require the Customer to pay a security deposit in respect of any Transport Unit supplied by the Company to the Customer as part of the Services, and to withhold the release of any Transport Unit/products until such deposit is paid.
5.5. If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 8 of or otherwise under BIFA Conditions, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.4 will accrue each day at a rate of 4% a year above the Bank of England’s base rate from time to time, but at a rate of 4% a year for any period when that base rate is at or below 0%.
5.6. All amounts due to the Company from the Customer shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Company.
6.2. The Customer grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Company for the purpose of providing the Services to the Customer.
7. Data protection
7.1. Both parties will comply with the requirements of the Data Protection Legislation, where applicable. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Company is the processor.
7.3. Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the purposes of the Services.
8. Liability and Limitation: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation.
8.2. The Customer’s attention is drawn to the provisions of the BIFA Conditions which limit or exclude the Company’s liability and which specify time limits for notifying and bringing claims. The remainder of this clause shall be read in addition to and not in place of those provisions.
8.3. Subject always to clause 8.2, the Company’s total liability to the Customer shall in no circumstances exceed $250,000. The Company’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.4. Without prejudice to the foregoing, the Company shall in no circumstances be liable for the following heads of loss, which shall be fully excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings
- loss of market;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill;
- indirect, special or consequential loss.
9. Special Conditions relating to Transport Units
9.1. Product acceptance
- The Customer agrees and warrants that any product it supplies for carriage pursuant to these Conditions shall not cause damage to the Company’s Transport Unit(s), and nothing in this clause 9 shall relieve the Customer of its obligations under this clause 9.1(a).
- The Company reserves the right to refuse to carry any product (whether hazardous or not) at its discretion.
- The Customer agrees to supply all and any such information and documentation in relation to the product as the Company may require for the performance of the Services.
9.2. Pre-load inspection
- Any Transport Unit used for the provision of the Services shall be subject to pre-load inspection by the Company to ensure that it is internally clean, structurally sound, and free of pitting or defects.
- Unless the Customer notifies the Company otherwise in writing prior to loading, the Customer shall be deemed to accept that any Transport Unit provided by the Company for the provision of the Services is compliant with clause 9.2(a).
9.3. Damage to Transport Units
- Unless otherwise expressly agreed by a director of the Company in writing, the Customer shall be strictly liable for any pitting, staining or other damage (“Damage”) to any Transport Unit supplied by the Company for the provision of the Services identified by the Company after discharge of the product carried, and shall indemnify the Company in full for all and any repair and/or replacement costs incurred by the Company as a result of any such Damage.
- For the purposes of clause 9.3(a), Damage shall include but shall not be limited to:
- impact damage to any part of the Transport Unit whilst the Transport Unit is at the Customer’s premises or (if different) the place of loading/discharge;
- damage caused by the product coming into contact with the exterior of the Transport Unit;
iii. loss or disappearance of the Transport Unit, or its fixtures and fittings, from the premises of the Customer or (if different) the place of loading/discharge, whether explained or unexplained;
- loss of or damage to removable components during customer operation;
- ruptures or similar damage to the Transport Unit or its fixtures and fittings caused by over-pressurisation or vacuum;
- pitting, staining, corrosion or similar damage to the Transport Unit caused by the product’s incompatibility with the Transport Unit;
vii. any requirement for additional cleaning including decontamination, fumigation, deodorisation, gas freeing other unforeseen extra cleaning to the interior of the Transport Unit, including the costs of obtaining a certificate of cleanliness;
viii. additional costs incurred including the costs of transportation to/from a specialist cleaning/repair contractor; additional depot handling costs, or storage/demurrage charges whilst the Transport Unit is under repair/awaiting approval.
- The Customer shall have a period of seven days from the date of identification by the Company of the Damage to arrange its own survey report, failing which the Company shall, at its sole direction, proceed with such repairs/remedial work as it sees fit for which the Customer shall be liable in accordance with clause 9.3(a).
10.1. Variation. No variation of these Conditions shall be effective unless it is in writing and signed by the Company.
10.2. Waiver. A waiver of any right or remedy under these Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.3. Severance. If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Conditions.
10.4. Third party rights. These Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.5. Governing law. The Conditions, and any activities, business, services, dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
10.6. Jurisdiction. The courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
BRITISH INTERNATIONAL FREIGHT ASSOCIATION (BIFA) STANDARD TRADING CONDITIONS, © BIFA 2017.
THE CUSTOMER’S ATTENTION IS DRAWN TO SPECIFIC CLAUSES HEREOF WHICH EXCLUDE OR LIMIT THE COMPANY’S LIABILITY AND THOSE WHICH REQUIRE THE CUSTOMER TO INDEMNIFY THE COMPANY IN CERTAIN CIRCUMSTANCES AND THOSE WHICH LIMIT TIME AND THOSE WHICH DEAL WITH CONDITIONS OF ISSUING EFFECTIVE GOODS INSURANCE BEING CLAUSES 8, 10, 11(A) and 11(B) 12-14 INCLUSIVE, 18-20 INCLUSIVE, AND 24-27 INCLUSIVE. THE CUSTOMER’S ATTENTION IS ALSO DRAWN TO CLAUSE 28 WHICH PERMITS ARBITRATION IN CERTAIN CIRCUMSTANCES.
All headings are indicative and do not form part of these conditions
DEFINITIONS AND APPLICATION
1 In these conditions the following words shall have the following meanings:-
|“Company”||the BIFA member trading under these conditions|
|“Consignee”||the Person to whom the goods are consigned|
|“Customer”||any Person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services|
|“Direct Representative”||the Company acting in the name of and on behalf of the Customer and/or Owner with H.M. Revenue and Customs (“HMRC”) as defined by Article 18 of Regulation (EU) No. 952/2013 of the European Parliament and of the Council or as amended.|
|“Goods”||the cargo to which any business under these conditions relates|
|“Person”||natural person(s) or any body or bodies corporate|
|“LMAA”||the London Maritime Arbitrators Association|
|“SDR”||are Special Drawing Rights as defined by the International Monetary Fund|
|“Transport Unit”||packing case, pallets, container, trailer, tanker, or any other device used whatsoever for and in connection with the carriage of Goods by land, sea or air|
|“Owner”||the Owner of the Goods or Transport Unit and any other Person who is or may become interested in them|
2(A) Subject to sub-paragraph (B) below, all and any activities of the Company in the course of business, whether gratuitous or not, are undertaken subject to these conditions.
(B) If any legislation, to include regulations and directives, is compulsorily applicable to any business undertaken, these conditions shall, as regards such business, be read as subject to such legislation, and nothing in these conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation, and if any part of these conditions be repugnant to such legislation to any extent, such part shall as regards such business be overridden to that extent and no further.
3 The Customer warrants that he is either the Owner, or the authorised agent of the Owner and, also, that he is accepting these conditions not only for himself, but also as agent for and on behalf of the Owner.
4(A) Subject to clauses 11 and 12 below, the Company shall be entitled to procure any or all of the services as an agent, or, to provide those services as a principal.
(B) The Company reserves to itself full liberty as to the means, route and procedure to be followed in the performance of any service provided in the course of business undertaken subject to these conditions.
5 When the Company contracts as a principal for any services, it shall have full liberty to perform such services itself, or, to subcontract on any terms whatsoever, the whole or any part of such services.
6(A) When the Company acts as an agent on behalf of the Customer, the Company shall be entitled, and the Customer hereby expressly authorises the Company, to enter into all and any contracts on behalf of the Customer as may be necessary or desirable to fulfil the Customer’s instructions, and whether such contracts are subject to the trading conditions of the parties with whom such contracts are made, or otherwise.
(B) The Company shall, within 14 days’ notice given by the Customer, provide evidence of any contract entered into as agent for the Customer. Insofar as the Company may be in default of the obligation to provide such evidence, it shall be deemed to have contracted with the Customer as a principal for the performance of the Customer’s instructions.
7 In all and any dealings with HMRC for and on behalf of the Customer and/or Owner, the Company is deemed to be appointed, and acts as, Direct Representative only.
8(A) Subject to sub-clause (B) below,
- has a general lien on all Goods and documents relating to Goods in its possession, custody or control for all sums due at any time to the Company from the Customer and/or Owner on any account whatsoever, whether relating to Goods belonging to, or services provided by or on behalf of the Company to the Customer or Owner. Storage charges shall continue to accrue on any Goods detained under lien;
- shall be entitled, on at least 21 days notice in writing to the Customer, to sell or dispose of or deal with such Goods or documents as agent for, and at the expense of, the Customer and apply the proceeds in or towards the payment of such sums;
- shall, upon accounting to the Customer for any balance remaining after payment of any sum due to the Company, and for the cost of sale and/or disposal and/or dealing, be discharged of any liability whatsoever in respect of the Goods or documents.
(B) When the Goods are liable to perish or deteriorate, the Company’s right to sell or dispose of or deal with the Goods shall arise immediately upon any sum becoming due to the Company, subject only to the Company taking reasonable steps to bring to the Customers attention its intention to sell or dispose of the Goods before doing so.
9 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by, or paid to, freight forwarders.
10(A) Should the Customer, Consignee or Owner of the Goods fail to take delivery at the appointed time and place when and where the company is entitled to deliver, the Company shall be entitled to store the Goods, or any part thereof, at the sole risk of the Customer or Consignee or Owner, whereupon the Company’s liability in respect of the Goods, or that part thereof, stored as aforesaid, shall who][y cease. The Company’s liability, if any, in relation to such storage, shall be governed by these conditions. All costs incurred by the Company as a result of the failure to take delivery shall be deemed as freight earned, and such costs shall, upon demand, be paid by the Customer.
(B) The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale or otherwise as may be reasonable in all the circumstances):-
- after at least 21 days notice in writing to the Customer, or (where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the Goods) without notice, any Goods which have been held by the Company for 60 days and which cannot be delivered as instructed; and
- without prior notice, any Goods which have perished, deteriorated, or altered, or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to the Company, or third parties, or to contravene any applicable laws or regulations.
11(A) No insurance will be effected except pursuant to and in accordance with clearly stated instructions given in writing by the Customer and accepted in writing by the Company, and all insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk. Unless otherwise agreed in writing, the Company shall not be under any obligation to effect a separate insurance on the Goods, but may declare it on any open or general policy held by the Company.
(B) Insofar as the Company agrees to effect insurance, the Company acts solely as agent for the Customer, and the limits of liability under clause 26(A) of these conditions shall not apply to the Company’s obligations under clause 11.
12(A) Except under special arrangements previously made in writing by an officer of the Company so authorised, or made pursuant to or under the terms of a printed document signed by the Company, any instructions relating to the delivery or release of the Goods in specified circumstances (such as, but not limited to, against payment or against surrender of a particular document) are accepted by the Company, where the Company has to engage third parties to effect compliance with the instructions, only as agents for the Customer.
(B) Despite the acceptance by the Company of instructions from the Customer to collect freight, duties, charges, dues, or other expenses from the Consignee, or any other Person, on receipt of evidence of proper demand by the Company, and, in the absence of evidence of payment (for whatever reason) by such Consignee, or other Person, the Customer shall remain responsible for such freight, duties, charges, dues, or other expenses.
(C) The Company shall not be under any liability in respect of such arrangements as are referred to under sub-clause (A) and (B) hereof save where such arrangements are made in writing, and in any event, the Company’s liability in respect of the performance of, or arranging the performance of, such instructions shall not exceed the limits set out in clause 26(A) (ii) of these conditions.
13 Advice and information, in whatever form it may be given, is provided by the Company for the Customer only. The Customer shall indemnify the Company against all loss and damage suffered as a consequence of passing such advice or information on to any third party.
14 Without prior agreement in writing by an officer of the Company so authorised, the Company will not accept or deal with Goods that require special handling regarding carriage, handling, or security whether owing to their thief attractive nature or otherwise including, but not limited to bullion, currency, securities, precious stones, jewellery, valuables, antiques, pictures, human remains, living creatures, plants. Should any Customer nevertheless deliver any such goods to the Company, or cause the Company to handle or deal with any such goods, otherwise than under such prior agreement, the Company shall have no liability whatsoever for or in connection with the goods, howsoever arising.
15 Except pursuant to instructions previously received in writing and accepted in writing by the Company, the Company will not accept or deal with Goods of a dangerous or damaging nature, nor with Goods likely to harbour or encourage vermin or other pests, nor with Goods liable to taint or affect other Goods. If such Goods are accepted pursuant to a special arrangement, but, thereafter, and in the opinion of the Company, constitute a risk to other goods, property, life or health, the Company shall, where reasonably practicable, contact the Customer in order to require him to remove or otherwise deal with the goods, but reserves the right, in any event, to do so at the expense of the Customer.
16 Where there is a choice of rates according to the extent or degree of the liability assumed by the Company and/or third parties, no declaration of value will be made and/or treated as having been made except under special arrangements previously made in writing by an officer of the Company so authorised as referred to in clause 26(D).
17 The Customer warrants:
(A) (i) that the following (furnished by on or behalf of the Customer) are full and accurate: the description and particulars of any Goods; any information furnished (including but not limited to, the nature, gross weight, gross mass (including the verified actual gross mass of any contained packed with packages and cargo items), and measurement of any Goods); and the description and particulars of any services required by or on behalf of the Customer are full and accurate, and
(ii) that any Transport Unit and/or equipment supplied by the Customer in relation to the performance of any requested service is fit for purpose;
(B) that all Goods have been properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods.
(C) that where the Company receives the Goods from the Customer already stowed in or on a Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the Goods loaded therein, or thereon;
(D) that where the Company provides the Transport Unit, on loading by the Customer, the Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the Goods loaded therein, or thereon.
18 Without prejudice to any rights under clause 15, where the Customer delivers to the Company, or causes the Company to deal with or handle Goods of a dangerous or damaging nature, or Goods likely to harbour or encourage vermin or other pests, or Goods liable to taint or affect other goods, whether declared to the Company or not, he shall be liable for all loss or damage arising in connection with such Goods, and shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the Goods may be dealt with in such manner as the Company, or any other person in whose custody they may be at any relevant time, shall think fit.
19 The Customer undertakes that no claim shall be made against any director, servant, or employee of the Company which imposes, or attempts to impose, upon them any liability in connection with any services which are the subject of these conditions, and, if any such claim should nevertheless be made, to indemnify the Company against all consequences thereof
20 The Customer shall save harmless and keep the Company indemnified from and against:-
(A) all liability, loss, damage, costs and expenses whatsoever (including, without prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods) arising out of the Company acting in accordance with the Customers instructions, or arising from any breach by the Customer of any warranty contained in these conditions, or from the negligence of the Customer;
(B) without derogation from sub-clause (A) above, any liability assumed, or incurred by the Company when, by reason of carrying out the Customer’s instructions, the Company has become liable to any other party;
(C) all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under the terms of these conditions, regardless of whether such claims, costs, and/or demands arise from, or in connection with, the breach of contract, negligence or breach of duty of the Company, its servants, sub-contractors or agents;
(D) any claims of a general average nature which may be made on the Company.
21(A) The punctual receipt in full of sums falling due from the Customer to the Company is critical to the operation of the Company’s business and its performance of its obligations to the Customer. Accordingly the Customer shall pay to the Company in cash, or as otherwise agreed, all sums when due, immediately and without reduction or deferment on account of any claim, counterclaim or set-0ff. Time is of the essence of payment of all and any sums payable by the Customer to the Company.
(B) In the event of any failure by the Customer to make full and punctual payment of any sum payable to the Company (in accordance with clause 21(A) above):
(i) Any and all other sums properly earned by and/or otherwise due to the Company (but which, but for this clause 21(B), would otherwise not yet be payable by the Customer, whether by virtue of an agreed credit period or otherwise) shall become immediately payable in full; and
(ii) Any sum thereby becoming immediately payable shall be paid to the Company in cash, or as otherwise agreed, and without reduction or deferment on account of any claim, counterclaim or set-off.
22 Where liability arises in respect of claims of a general average nature in connection with the Goods, the Customer shall promptly provide security to the Company, or to any other party designated by the Company, in a form acceptable to the Company.
LIABILITY AND LIMITATION
23 The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgment.
24 The Company shall be relieved of liability for any loss or damage if, and to the extent that, such loss or damage is caused by:-
(A) strike, lock-out, stoppage or restraint of labour, the consequences of which the Company is unable to avoid by the exercise of reasonable diligence; or
(B) any cause or event which the Company is unable to avoid, and the consequences of which the company is unable to prevent by the exercise of reasonable diligence.
25 Except under special arrangements previously made in writing by an officer of the Company so authorised, the Company accepts no responsibility with regard to any failure to adhere to agreed departure or arrival dates of Goods.
26(A) Subject to clause 2(B) and 11(B) above and sub-clause (D) below, the Company’s liability howsoever arising and, notwithstanding that the cause of loss or damage be unexplained, shall not exceed:
(i) in the case of claims for loss or damage to Goods:
(a) the value of any loss or damage; or
(b) a sum at the rate of 2 SDR per kilo of the gross weight of any Goods lost or damaged whichever shall be the lesser.
(ii) subject to (iii) below, in the case of all other claims:
(a) the value of the subject Goods of the relevant transaction between the Company and its Customer; or
(b) where the weight can be defined, a sum calculated at the rate of two SDR per kilo of the gross weight of the subject Goods of the said transaction; or
(c) 75,000 SDR in respect of any one transaction,
whichever shall be the lesser.
(iii) in the case of an error and/or omission, or a series of errors and/or omissions which are repetitions of or represent the continuation of an original error, and/or omission:
(a) the loss incurred; or
(b) 75,000 SDR in the aggregate of any one trading year commencing from the time of the making of the original error and/or omission,
whichever shall be the lesser.
For the purposes of clause 26(A), the value of the Goods shall be their value when they were, or should have been, shipped. The value of SDR shall be calculated as at the date when the claim is received by the Company in writing.
(B) Subject to clause 2(B) above and sub-clause (D) below, the Company’s liability for loss or damage as a result of failure to deliver, or arrange delivery of goods, in a reasonable time, or (where there is a special arrangement under Clause 25) to adhere to agreed departure or arrival dates, shall not in any circumstances whatever exceed a sum equal to twice the amount of the Company’s charges in respect of the relevant contract.
(C) Save in respect of such loss or damage as is referred to at sub-clause (B), and subject to clause 2(8) above and Sub-Clause (D) below, the Company shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market, or the consequences of delay or deviation, however caused.
(D) On clearly stated instructions in writing declaring the commodity and its value, received from the Customer and accepted by the Company, the Company may accept liability in excess of the limits set out in sub-clauses express (A) to (C) above upon the Customer agreeing to pay the Company’s additional charges will be provided upon request.
27(A) Any claim by the Customer against the Company arising in respect of any service provided for the Customer, or which the Company has undertaken to provide, shall be made in writing and notified to the Company within 14 days of the date upon which the Customer became, or ought reasonably to have become, aware of any event or occurrence alleged to give rise to such claim, and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where the Customer can show that it was impossible for him to comply with this time limit, and that he has made the claim as soon as it was reasonably possible for him to do so.
(B) Notwithstanding the provisions of sub-paragraph (A) above, the Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any service provided for the Customer, or which the Company has undertaken to provide, unless suit be brought and written notice thereof given to the Company within nine months from the date of the event or occurrence alleged to give rise to a cause of action against the Company.
JURISDICTION AND LAW
28 (A) These conditions and any act or contract to which they apply shall be governed by English law.
(B) Any dispute arising out of any act or contract to which these Conditions apply shall, save as provided in (C) below, be subject to the exclusive jurisdiction of the English courts.
(C) Notwithstanding (B) above, the Company is entitled to require any dispute to be determined by arbitration.
(D) The Company may exercise its rights under (C) above either by itself commencing arbitration in respect of a dispute or by giving written notice to the Customer requiring a dispute to be determined by arbitration.
(E) In the event that the Company exercises its rights under (C) above, the corresponding arbitration shall be conducted as follows:
(i) Where the amount claimed by the claimant is less than£400,000, excluding interest, (or such other sum as the Company and Customer may agree, and subject to (iii) below), the reference shall be to a tribunal of three arbitrators and the arbitration shall be conducted in accordance with the LMAA Intermediate Claims Procedure applicable at the date of the commencement of the arbitration proceedings:
(ii) Where the amount claimed by the claimant is less than £100,000, excluding interest, (or such other sum as the Company and Customer may agree, and subject to (iii) below), the reference shall be to a sole arbitrator and the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure applicable at the date of the commencement of the arbitration proceeding;
(iii) In any case where neither of the LMAA Procedures referred to in (i) and/or (ii) above applies, the reference shall be to three arbitrators in accordance with the LMAA Terms applicable at the date of the commencement of the arbitration proceedings.
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