1. In these Conditions:
(a) "Authority" means any duly constituted legal or administrative Person, which exercises jurisdiction or has authority within any nation, state, municipality, port, or airport.
(b) "Charges" means all freight, costs, fees, expenses, commissions, duties, penalties, taxes, surcharges and/or charges payable to the Company in respect of the Services and in accordance with the applicable tariff (if any) and/or these Conditions.
(c) "Company" means Tuatarix Ltd.
(d) "Conditions" means these Standard Trading Conditions as may be amended from time to time in accordance with the terms hereof.
(e) "Customer" means any Person for whom the Company agrees to provide or arrange a Service, and includes the shipper, holder, consignee, receiver of the Goods, any Person owning or entitled to the possession of the Goods and anyone acting on behalf of or as principals of such Person.
(f) "Dangerous Goods" means goods, which are or may become dangerous, hazardous, noxious (including radioactive materials), inflammable, explosive or which are or may become liable to damage any property or person whatsoever.
(g) "Goods" means the whole or any part of the cargo and any packaging accepted from the Customer, including Dangerous Goods and any Transport Unit not supplied by or on behalf of the Company, in respect of which the Company provides Services.
(h) "LCIA" means The London Court of International Arbitration.
(i) "Instructions" means a statement of the specific requirements from the Customer, an Authority and/or any other Person entitled to give them.
(j) "Person" includes an individual, corporation, or other legal entity.
(k) "SDR" means Special Drawing Right. The SDR shall be as defined by the International Monetary Fund and the value of a SDR in relation to any claim arising hereunder shall be calculated as at the date when settlement is agreed or the date of any judgment.
(l) "Services" means the whole or any part of any physical, management, agency and/or business process services and/or activities of whatsoever nature undertaken by the Company in respect of the Customer and/or in relation to Goods, including but not limited to loading, packing, stuffing, transporting, carriage, unloading, unpacking, de-stuffing, warehousing, storage and any other operations and services of whatsoever nature undertaken by or performed by or on behalf of the Company in relation to the Goods and cargo management services and related documentary, customs and information technology processes.
(m) "Transport Document" means a "bill of lading" (whether or not negotiable) or "waybill" or "air waybill" or similar transport document (whether issued in paper or electronic form).
(n) "Transport Unit" means any packing case, pallet, container, flat rack, platform, trailer, transportable tank, or other item used for or in connection with the carriage of Goods by land, sea or air.
(o) "Vehicle" means any vehicle, including, any lorry, van or car.
2. All Services are provided by the Company as agent only.
3. Without prejudice to the generality of clause 2:
(a) the charging by the Company of fixed Charges for any Services shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of such Services;
(b) the Company acts as an agent where the Company procures a Transport Document between a Person, other than the Company, and the Customer; and
(c) the Company acts in the name of and on behalf of the Customer, and never as a principal, when dealing with Authorities on behalf of the Customer in relation to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection certificates, documentation management, and other similar services.
Services as agent
4. The Company has the express authority of the Customer to:
(a) enter into contracts with third parties on the Customer’s behalf as may be necessary or desirable to fulfil the Customer's Instructions, whether such contracts are subject to the trading conditions of such third parties, or otherwise, including any bill of lading issued by such third parties, and the Company will sign such contract for and on behalf of the customer as agent only; and
(b) do such acts so as to bind the Customer by such contracts.
(c) act on behalf of the Customer in securing contracts with the third parties referred to in subclause 4(a) above, so that direct contractual relationships are between the Customer and such third parties; and
(d) the Company shall not be liable for the acts and omissions of such third parties.
Obligations of company
5. The Company will perform the Services with a reasonable degree of care, skill, and judgment.
Obligations of customer
6. The Customer and any Person acting on the Customer's behalf shall give lawful, sufficient, and executable Instructions.
7. The Customer warrants that:
(a) it is either the owner of the Goods or the authorised agent of the Person owning or entitled to possession and/or control of the Goods;
(b) it accepts these Conditions not only for itself, but also as authorised agent for and on behalf of any Person owning or entitled to possession and/or control of the Goods;
(c) the description and particulars of the Goods, including marks, numbers, quantity and weight are full and accurate;
(d) the Goods are properly and sufficiently packed, marked, labelled, stuffed and stowed in a manner appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods;
(e) the Goods do not include any goods prohibited by the law or regulation of any Authority of any country where the Services are provided;
(f) where a Transport Unit is used to carry the Goods:
(i) the Goods are suitable for carriage in a Transport Unit;
(ii) the Transport Unit is suitable and free of defects;
(iii) the Transport Unit is sealed at the commencement of the carriage.
Compliance with applicable laws
8. The Customer warrants that:
(a) it has complied with all applicable laws, rules and regulations, including the export laws and government regulations of any country to, from, or through which the Goods may be carried;
(b) the Goods do not require the Company to obtain any special license or permit for transportation, exportation, importation or handling of the Goods and, to the extent required by law or regulation, the Customer has obtained all necessary export, re-export, and/or import licenses or permits;
(c) neither the receipt, delivery or handling of the Goods nor any payment or other transaction relating to the Goods will expose the Company or any of their employees, servants, agents, banks, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, supranational or international governmental organisation or other Authority;
(d) neither the Customer nor any Person the Customer trades with in relation to or in connection with the Goods, is or is owned or controlled by or is acting on behalf of a Person which is included on any list of individuals or entities with whom transactions are currently prohibited or restricted under any sanction, prohibition or restriction imposed by any state, country, supranational or international governmental organisation or other Authority, including but not limited to the consolidated list of financial sanctions targets in the United Kingdom or the US list of Specially Designated Nationals;
(e) the Goods are not intended to be used in the design, development, or production of nuclear, chemical, or biological weapons.
9. The Customer shall promptly provide in writing all information required in order to enable the Company to (i) arrange and safely perform the Services for the Customer and (ii) comply with all laws, regulations and conditions applicable to the Goods.
10. The Company assumes no liability to the Customer, or any other person, for any loss or expense including, but not limited to, fines and penalties due to Customer's failure to comply with any applicable export or import laws, rules, regulations, licenses or permits.
Goods requiring special handling
(a) Unless otherwise previously agreed in writing, the Customer shall not cause the Company to deal with or handle Dangerous Goods.
(b) If the Company agrees to accept Dangerous Goods, the Customer or someone acting on its behalf, shall give the Company written notice of the nature of the Dangerous Goods. The written notice shall include all information necessary for the Company to perform its obligations in connection with the Dangerous Goods in accordance with all applicable laws, regulations or requirements (or any combination of the foregoing), including information about the characteristics of the Dangerous Goods, the appropriate manner and method of storage, handling, and transportation of the Dangerous Goods. The Dangerous Goods must be distinctly marked on the outside so as to indicate the nature and characteristics of the Dangerous Goods and so as to comply with all applicable laws, regulations and requirements. Additional charges may apply to the transport of Dangerous Goods.
(c) Dangerous Goods which have been tendered to the Company in breach of clause 11 or which, in the opinion of the Company, constitute a risk to other goods, property, life or health may, at the sole discretion of the Company or any other person in whose custody they may be at the relevant time and without notice to the Customer, be destroyed or otherwise dealt with at the expense and risk of the Customer and without liability to the Company.
(d) If any of the Goods are likely to taint or affect other goods, or liable to cause contamination, soiling and remedial cleaning expenses to be incurred, or likely to harbour or encourage vermin or other pests, they may, without notice to the Customer, be destroyed or otherwise dealt with at the expense and risk of the Customer and without liability to the Company.
(a) The Customer undertakes not to tender for transportation any Goods that require temperature and/or atmosphere control without:
(i) the Customer giving written notice of their nature and particular temperature and/or atmosphere to be set; and
(ii) the Company agreeing in writing to deal with such Goods,
(b) In the case of a temperature and/or atmosphere-controlled Transport Unit stuffed or loaded by or on behalf of the Customer, the Customer further undertakes that:
(i) the Transport Unit and Goods have been properly pre-cooled, pre-heated or otherwise prepared as appropriate;
(ii) the Goods have been properly stuffed or loaded in the Transport Unit; and
(iii) the Transport Unit’s thermostatic or other controls have been properly set and checked by or on behalf of the Customer.
(c) If the above requirements are not complied with, the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
13. Unless otherwise agreed in writing, the Company does not undertake that the Goods or any documents shall depart, arrive, or be available on particular dates or take a particular route.
14. Instructions relating to the delivery of Goods against payment or surrender of a particular document shall be in writing and subject to the Company's prior written approval.
15. The Company shall not be obliged to make any declaration for the purposes of any statute, convention, or contract as to the nature or value of any Goods or as to any special interest in delivery, unless express written Instructions to that effect have been accepted in writing by the Company.
(a) The Company will effect cargo insurance for all Goods (excluding any Transport Units) unless otherwise requested by the Customer in writing. Such insurance will be a separate contract of insurance between the Customer and the insurance underwriters which is subject to the conditions and exceptions incorporated into such contract. Insofar as the Company effects such insurance, the Company acts solely as agent for the Customer.
(b) If the Customer elects the Company not to effect cargo insurance, the Company will not have any liability for any loss and damage to the Goods other than what is stipulated in these Conditions.
(c) The Company is not liable for any acts, omissions, or decisions of the insurance underwriters of any open or general policy or separate contract of insurance whatsoever, and should the insurance underwriters dispute liability to settle a claim for any reason whatsoever, the Customer shall not have any recourse against the Company.
(a) The Customer shall defend, indemnify, and hold harmless the Company against all liabilities, losses, damages, costs (including the costs of investigating and defending any claims), expenses, awards and fines of whatever nature and howsoever assumed, invoked or suffered arising from or out of:
(i) the nature of the Goods, unless caused by the Company’s negligence; (ii) the Company acting in accordance with the Customer’s Instructions;
(iii) any breach of any of the warranties or undertakings given or obligations undertaken by the Customer under these Conditions;
(iv) the negligence of the Customer;
(v) any duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any Authority in respect of the Goods and/or Transport Unit, and for all liabilities, payments, fines, costs, expenses, loss and damage sustained by the Company in connection therewith, unless caused by the Company’s negligence;
(vi) the Company incurring any liability in excess of its liability under the provisions of these Conditions regardless of whether such liability arises from, or in connection with a breach of contract, negligence, wilful misconduct or breach of duty by the Company, its agents, servants or Subcontractors;
(vii) any contracts made pursuant to clause 4, except to the extent caused by the Company’s negligence.
17. In the event of loss of or damage to Goods or delay in the performance of the Services, the Company's liability in respect of the same shall be determined and limited in accordance with the provisions of clauses 18 to 23 unless an international convention or national law applies compulsorily to any element of the Services and cannot be waived or modified ("Compulsory Legislation"), in which case the liability of the Company in relation to that element of the Services will be determined and limited in accordance with the provisions of such Compulsory Legislation.
Exclusions from and limitations of liability
18. Exclusions of liability
(a) Except insofar as otherwise provided by these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from:
(i) the act or omission of the Customer or any Person (other than the Company) acting on their behalf;
(ii) compliance with any Instructions given to the Company;
(iii) insufficiency of the packing or labelling of the Goods;
(iv) handling, loading, stowage or unloading of the Goods by the Customer or any Person acting on their behalf;
(v) inherent vice of the Goods;
(vi) riots, civil commotion, strikes, lockouts, stoppage or restraint of labour from whatsoever cause;
(vii) act of war or terrorism;
(viii) fire, flood or storm;
(ix) the breakdown of, accident to, failure or interruption of or reduction in the mains electrical supply to the Company and/or Subcontractor; or
(x) any cause, which the Company could not avoid, and the consequences whereof it could not prevent by the exercise of reasonable diligence.
(b) Where under sub-clause 18(a) above the Company is not under any liability for loss or damage caused by one or more of the causes, events, or occurrences above, the Company shall only be liable to the extent that the causes, events or occurrences for which it is liable under these Conditions have contributed to the loss or damage. The burden of proof that the loss or damage was due to one or more of the causes, events or occurrences specified in sub-clause 18(a) above shall rest upon the Company save that when the Company establishes that in the circumstances of the case, the loss or damage could be attributed to one or more of the causes, events or occurrences specified in (a)(iii) to (a)(v)of sub-clause 18(a), it shall be presumed that it was so caused. The Customer shall, however, be entitled to prove that the loss or damage was not in fact caused wholly or partly by one of the causes, events or occurrences listed under sub- clause 18(a).
19. Limitations and exclusions of liability
(a) In relation to claims for loss of or damage to the Goods or other property owned or leased by the Customer (including any Transport Unit, Vehicles, or premises) the Company's liability howsoever arising and, notwithstanding that the cause of the loss or damage be unexplained, shall not exceed the lower of:
(i) the value of the relevant Goods;
(ii) the reasonable cost of repair in the case of damage; or
(iii) 2 SDR per kg. of the relevant Goods,
provided always that the Company's liability under this clause shall not exceed a maximum of 75,000 SDR per event or events arising from a common cause.
(b) In relation to claims for delivery of the Goods to an incorrect Person or destination, the Company's liability howsoever arising shall not exceed the cost of carriage of the Goods to the correct destination by the originally contemplated mode of carriage.
(c) In relation to all other claims arising out of or in relation to the Services or the Goods, the Company's liability howsoever arising shall not exceed the lower of:
(i) the amount of the Company’s Charges in respect of the Services in relation to which the claim arose; and
(ii) 75,000 SDR in aggregate per event or events arising from a common cause.
(d) If, notwithstanding clause 13, the Company is nevertheless found liable for delay, its liability shall in no circumstances exceed the amount of the Company’s Charges in respect of the relevant Services.
(e) The Company shall not be liable to the Customer for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill (in each case whether direct or indirect), or any indirect or consequential loss.
20. For the purposes of clause 19:
(a) the value of Goods is the Ex works invoice value plus freight and insurance if paid, plus any customs duty or tax incurred on the Goods in respect of their carriage and not recoverable from any Authority.
(b) if there is no Ex works invoice value for the Goods, compensation shall be calculated by reference to the value of such Goods at the place and time when they are delivered in accordance with the Customer’s Instructions or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
(c) the value of the Customer’s property (other than Goods) is (i) if leased by the Customer, its lease value or (ii) if owned by the Customer, its market value at the place where the loss or damage occurred.
21. The defences, exclusions and limits of liability provided for by these Conditions shall apply in any action whether such action be founded in contract, tort, bailment, breach of express or implied warranty, negligence, wilful misconduct or otherwise.
22. Save as set out in these Conditions, the Company shall not be liable for loss of or damage to any Goods or delay howsoever arising (whether caused by negligence, wilful misconduct or otherwise).
Notice of claim, time bar
(a) The Company shall be discharged of all liability unless:
(i) notice of any claim is received in writing by the Company or its authorised agent within fourteen (14) days after the date specified in (b) below, except where the Customer can show that it was impossible to comply with this time limit and that the claim has been made as soon as it was reasonably possible for the Customer to do so, and
(ii) arbitration is brought in the proper forum and form as specified in clause 25 and written notice thereof received by the Company within 9 months after the date specified in sub-clause 23(b) below.
(b) For the purposes of clause 23(a) the relevant date shall be:
(i) in the case of loss or damage to Goods, the date of delivery of the Goods,
(ii) in the case of delay or carriage of the Goods to the incorrect destination, the planned date of delivery (if the Company advised the Customer of such a date),
(iii) in any other case, the date of the event giving rise to the claim.
(c) Any claim which does not comply with the provisions of clause 23 shall be deemed to be waived and absolutely barred.
24. If any clause, or part of a clause, be found to be invalid, void or unenforceable to any extent, the reminder of these Conditions and the clause shall remain valid, in full force and effect.
General Average and salvage
25. The Customer shall defend, indemnify and hold harmless the Company in respect of any claims for General Average or salvage contribution that may be made on the Company, irrespective of whether the Charges are pre-paid or not. The Customer shall provide such security as may be required by the Company for General Average or salvage contributions promptly and in a form acceptable to the Company.
Jurisdiction and governing law
25. Any dispute arising out of or in connection with these Conditions, including any question regarding their existence, validity, or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. The governing law of the Conditions shall be the substantive laws of England and Wales.