DEFINITIONS AND APPLICATION
- In these Conditions:
"Company" is the BIFA Member trading under these Conditions.
"Person" Includes persons or any Body or Bodies Corporate.
"The Owner" means the Owner of the goods (including any packaging, containers or equipment)
to which any business concluded under these Conditions relates and any other person who is
or may become interested in them.
"Customer" means any person at whose request or on whose behalf the Company undertakes
any business or provides advice, information or services.
- (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 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.
- 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.
THE COMPANY
- (A) Subject to Clauses 11 and 12 below, the Company shall be entitled to
procure any or all of its services as an Agent or to provide those services as
a Principal.
(B) The Company shall on demand by the Customer provide evidence of any
Contract entered into as Agent for the Customer. Insofar as the Company may be in default
of this obligation, it shall be deemed to have contracted with the Customer as a
Principal for the performance of the Customer's instructions.
- When the Company contracts as a Principal for any services, it shall have full liberty
a) to perform such services itself or b) to subcontract the whole or any part of such
services to third parties (including the Company's own parent, subsidiary, or
associated companies).
- 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
such Contracts on behalf of the Customer as may be necessary or desirable to fulfil
the Customer's instructions and subject to the trading conditions of the parties with whom
such contracts are made.
- The Company reserves to itself a reasonable liberty as to the means, route and procedure
to be followed in the handling, storage and transportation of goods.
- (A) Subject to Sub-Clause (B) hereof, the Company shall have a general lien
on all goods and documents relating to goods in its possession, custody or control for
all sums due at any time from the Customer or Owner, and shall be entitled to sell or dispose
of 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 on 28 days notice in writing to the Customer.
Upon accounting to the Customer for any balance remaining after payment of any sum due to
the Company and the costs of sale or disposal the Company shall 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 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 Customer's
attention its intention of selling or disposing of the goods before doing so.
- 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.
- (A) If delivery of the goods or any part thereof is not taken by the Customer,
Consignee or Owner, at the time and place when and where the Company is entitled to call
upon such person to take delivery thereof, the Company shall be entitled to store the
goods or any part thereof at the sole risk of the Customer, whereupon the liability of
the Company in respect of the goods or that part thereof stored as aforesaid shall wholly
cease and the cost of such storage if paid for or payable by the Company or any Agent
or Sub-Contractor of the Company shall forthwith upon demand be paid by the Customer
to the Company.
(B) The Company shall be entitled at the expense of the Customer to dispose
of (by sale or otherwise as may be reasonable in all the circumstances):-
- on 28 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 90 days and which cannot be delivered as
instructed; and
- without prior notice, 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.
- (A) No Insurance will be effected except upon express instructions given in
writing by the Customer and all Insurances effected by the Company are subject to the
usual exceptions and conditions of the Policies of the Insurance Company or Underwriters
taking the risk. Unless otherwise agreed in writing the Company shall not be under any
obligation to effect a separate Insurance on each consignment 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. The limits of liability under Clause 27(A)(ii) of these
Conditions shall not apply to the Company's obligations under Clauses 11(A) and (B).
- (A) Except under special arrangements previously made in writing or under the
terms of a printed document signed by the Company, any instructions relating to the
delivery or release of goods in specified circumstances only, such as (but without prejudice
to the generality of this Clause) 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) The Company shall not be under any liability in respect of such arrangements
as are referred to under Sub-Clause (A) hereof save where such arrangements are made in
writing.
(C) In any event, the Company's liability in respect of the performance or
arranging the performance of such instructions shall not exceed the limits set out
in Clause 27(A) (ii) of these Conditions.
- Advice and information, in whatever form it may be given, is provided by the Company
for the Customer only and the Customer shall not pass such advice or information to any
Third Party without the Company's written agreement . The Customer shall indemnify the
Company against all loss and damage suffered as a consequence of any breach of this
Condition by the Customer.
- (A) Except under special arrangement previously made in writing the Company
will not accept or deal with bullion, coin, precious stones, jewellery, valuables,
antiques, pictures, human remains, livestock, pets or 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 special arrangements previously made in
writing the Company shall be under no liability whatsoever for or in connection with
such goods howsoever arising.
(B) The Company may at any time waive its rights and exemptions from liability
under Sub-Clause (A) above in respect of any one or more of the categories of goods
mentioned herein or of any part of any category. If such waiver is not in writing, the
onus of proving such waiver shall be on the Customer.
- Except following instructions previously received in writing and accepted 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
and then in the opinion of the Company they constitute a risk to other goods, property,
life or health, the Company shall where reasonably practicable contact the Customer,
but reserves the right at the expense of the Customer to remove or otherwise deal with
the goods.
- Where there is a choice of rates according to the extent or degree of the liability
assumed by carriers, warehousemen or others, no declaration of value where optional will
be made except under special arrangements previously made in writing.
THE CUSTOMER
- The Customer warrants:
(A) that the description and particulars of any goods furnished by or on
behalf of the Customer are full and accurate.
(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 container, trailer, tanker, or any other device specifically constructed for
the carriage of goods by land, sea or air (each hereafter individually referred to as
"the 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.
- Should the Customer otherwise than under special arrangements previously made in writing
as set out in Clause 15 above deliver to the Company or cause 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, 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.
- 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.
- 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 Customer's instructions or arising
from any breach by the Customer of any Warranty contained in these Conditions or from
the negligence of the Customer, and
(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 reasonably become liable or may become liable to any other party, and
(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
whether such claims, costs and demands arise from or in connection with the negligence or
breach of duty of the Company, its Servants, Sub-Contractors or Agents, and
(D) Any claims of a General Average nature which may be made on the Company.
- (A) The Customer shall pay to the Company in cash or as otherwise agreed all
sums immediately when due without reduction or deferment on account of any claim,
counterclaim or set-off.
(B) In respect of all sums which are overdue with reference to the Late Payments
(Interest) Act 1998 the Customer shall be liable to pay to the Company interest calculated
at 8% above the prevailing Base Rate of the London clearing banks.
- Despite the acceptance by the Company of instructions to collect freight, duties, charges
or other expenses from the Consignee or any other person the Customer shall remain
responsible for such freight, duties, charges or expenses on receipt of evidence of
proper demand and in the absence of evidence of payment (for whatever reason) by such
Consignee or other person when due.
- Where liability for General Average arises 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
- The Company shall perform its duties with a reasonable degree of care, diligence,
skill and judgement.
- 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;
(B) any cause or event which the Company is unable to avoid and the
consequences whereof the Company is unable to prevent by the exercise of reasonable
diligence.
- Except under special arrangements previously made in writing the Company accepts no
responsibility for departure or arrival dates of goods.
- (A) Subject to clause 2(B) and 11(B) above and sub-clause (D) below
the Company's liability howsoever arising and not withstanding that the cause of loss
or damage be unexplained shall not exceed:
- in the case of claims for loss or damage to goods:
- the value of any goods lost or damaged, or
- a sum at the rate of two Special Drawing Rights as defined by the International
Monetary Fund (hereinafter referred to as SDRs), per kilo of the gross weight
of any goods lost or damaged whichever shall be the least.
- in the case of all other claims:
- the value of the goods the subject of the relevant transaction between the
Company and its Customer, or
- a sum at the rate of two SDRs per kilo of the gross weight of the goods the
subject of the said transaction, or
- 75,000 SDRs in respect of any one transaction whichever shall be the least.
For the purposes of Clause 27(A) the value of the goods shall be their value when
they were or should have been shipped. The value of SDRs 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 26)
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
transaction.
(C) Save in respect of such loss or damage as is referred to at Sub-Clause (B)
and subject to Clause 2(B) 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) By special arrangement agreed in writing, the Company may accept liability
in excess of the limits set out in Sub-Clauses (A) to (C) above upon the Customer agreeing
to pay the Company's additional charges for accepting such increased liability. Details
of the Company's additional charges will be provided upon request.
- (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 should 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 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
- These Conditions and any act or contract to which they apply shall governed by English Law
and any dispute arising out of any act or contract to which these conditions apply
shall be subject to the exclusive jurisdiction of the English Courts.
|