PART II GENERAL CONDITIONS
Obligations of the Customer
5. The Customer warrants that he is either the Owner or the authorised agent of the Owner of the Goods, and that he is authorised to accept and is accepting these Conditions not only for himself but also as agent for and on behalf of the Owner of the Goods.
6. The Customer warrants that he has reasonable knowledge of matters affecting the conduct of his business, including but not limited to the terms of sale and purchase of the Goods and all other matters relating thereto.
7. The Customer shall give to the Company sufficient and executable instructions.
8. The Customer warrants that the description and particulars of the Goods are complete, accurate and correct.
9. Unless the Company has agreed in writing to pack the Goods, the Customer warrants that the Goods are 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 in particular to withstand the ordinary risks of handling, storage and carriage.
10. The Customer warrants that where the Company receives the Goods from the Customer already stowed in or on a Container or any other device constructed for the carriage of goods (each hereafter individually referred to as “the transport unit”), the transport unit is in good condition, and is suitable for the carriage of the Goods to the intended destination.
11. The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packing, handling, storage and carriage of the Goods.
Special Instructions, Goods and Services
12. (a) Unless otherwise previously agreed in writing, the Customer shall not deliver to the Company or cause the Company to deal with or handle Dangerous Goods.
(b) If the Customer delivers to the Company or causes the Company to deal with or handle Dangerous Goods in breach of Clause 12(a) above, the Company shall not be liable for any loss or damage whatsoever caused by or to the Dangerous Goods and the Customer shall defend, indemnify and hold harmless the Company against all penalties, claims, liabilities (whether civil, criminal or otherwise), damages, costs and expenses whatsoever arising in connection with or incidental to such loss or damage, and the Dangerous Goods may without notice be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time without compensation to and at the cost of the Customer
(c) If the Company agrees in writing to accept Dangerous Goods and subsequently, in the sole opinion of the Company, (i) they are deemed to constitute a risk to other goods, property, life or health or (ii) owing to legal, administrative or other obstacles whether as to their carriage, discharge or otherwise they may be detained or cause any other property or person to be detained, they may without notice be destroyed or otherwise dealt with at the expense of the Customer or Owner without compensation or any liability whatsoever attaching to the Company.
13. No insurance will be effected except upon express instructions given in writing by the Customer and all such 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. Should the insurers dispute their liability for any reason whatsoever the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability whatsoever in relation thereto notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by its Customers. The Company acts solely as agent for the Customer in effecting insurance and does so subject to the limits of liability contained in clauses 29 and 30 herein notwithstanding that loss or damage was caused by the Company’s negligence or default including any failure to place any insurance or the appropriate insurance.
14. Except in accordance with express instructions previously received in writing and accepted in writing by the Company, 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.
15. (a) Unless otherwise previously agreed in writing by the Company, instructions relating to the delivery or release of goods in specified circumstances only (including without limitation against payment or against surrender of a particular document) are accepted by the Company as agents for the Customer where third parties are engaged to effect compliance with these instructions.
(b) Notwithstanding the neglect or default of the Company, the Company shall not be under any liability in respect of such arrangements referred to in sub-clause (a) above.
(c) In any event and notwithstanding the Company’s negligence, the Company’s liability in respect of the performance and arranging the performance of such instruction referred to sub-clause (a) above shall not exceed that provided under clause 29 herein.
16. The Company does not undertake that the goods shall depart or arrive by any particular date.
17. The Customer undertakes that no claim shall be made against any director, servant or employee of the Company which imposes or seek to impose upon them any liability in connection with any Services undertaken by the Company and if any such claim is made, to indemnify the Company and the said director, servant or employee against all consequences thereof.
18. The Customer and the Owner shall hold harmless, defend 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, imports, levies, deposits and outlays of whatsoever nature levied by any Authority in relation to the Goods and for all payments and fines arising out of the Company acting in accordance with the Customer’s instructions or arising from any breach by the Customer or Owner of any Warranty or obligation contained in these Conditions or from the negligence of the Customer or Owner; 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.
(d) Advice and information, in whatever form as may be given, are provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information. Except under special arrangements, advice and information which are not related to instructions accepted by the Company are provided gratuitously and without liability.
(e) (i) The Customer and Owner expressly agrees that no servant, agent or other person (including any independent contractor) shall in any circumstances be under any liability to the Customer or Owner for any loss or damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment or as agent of the Company or otherwise. Without prejudice to the generality of the foregoing every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity applicable to the Company shall also be available and shall extend to protect every such servant, agent or other person (including any independent contractor) and for the purpose of this condition, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such servants, agents or other persons (including any independent contractors) and all such persons shall to this extent be or deemed to be parties to the contract between the Company and the Customer or Owner.
(ii) In this Clause 18, “contractor” and “contractors” include direct and indirect sub-contractors and their respective servants and agents.
(f) The Customer and Owner shall solely be liable for demurrage or loss, damage, contamination, soiling or detention before during or after the carriage of property (including but not limited to Containers) of the Company or any person or vessel referred to herein caused directly or indirectly by the Customer or Owner or any person acting as servants, agents or independent contractors for or on behalf of either of them.
19. (a) The Customer shall pay to the Company in cash or in such manner as the Company may agree all sums immediately when due without deduction or deferment on account of any claim, counterclaims or set-off and the Customer agrees to waive the right of set-off, if any, as against the company.
(b) When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer, the Customer shall remain responsible and shall make payment of the same to the Company on receipt of evidence of demand and in the absence of evidence of payment for whatever reason by such other person.
(c) On all amounts overdue to the Company, the Customer shall pay to the Company interest, calculated from the date such amounts are overdue until payment thereof, at the rate of two (2) per cent. per month.
(d) Notwithstanding and without prejudice to Clause 19(c), in the event that the Customer fails to pay any sum due to the Company within five (5) days from the date any such sum is due, the Company shall be entitled at any time thereafter by written notice to the Customer declare that:
(i) all credit terms in respect of all or any part of the Services rendered pursuant to these Conditions shall be cancelled, whereupon the same shall be cancelled; and
(ii) all sums payable by the Customer to the Company in respect of all or any part of the Services rendered pursuant to these Conditions have become due and payable, whereupon the same shall immediately or in accordance with the terms of such notice become due and payable.
(e) Any dispute as to the amount or accuracy of any invoice issued by the Company shall be raised by the Customer within 30 days from the date of the invoice, failing which, the Customer is deemed to have conclusively accepted that the invoice is complete and accurate.
(f) Unless otherwise expressly agreed in writing, all invoices rendered by the Company are payable immediately on sight
(g) Quotations are given on the basis of immediate acceptance and are subject to withdrawal or revision. Unless otherwise agreed in writing the Company shall be, after acceptance, at liberty to revise quotations or charges with or without notice in the event of changes outside the Company’s control including but not limited to charges in currency exchange rates, rates of freight, insurance premiums or any changes applicable to the “Goods”.
Liberties and Rights of the Company
20. Except insofar as has otherwise been agreed in writing, the Company shall be entitled and the Customer hereby authorises the Company to enter into contracts on behalf of itself or the Customer and without notice to the Customer,
(a) for the carriage of Goods by any route, means or person;
(b) for the carriage of Goods of any description whether containerised or not on or under the deck of any vessel;
(c) for the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of time;
(d) for the carriage or storage of Goods in Containers or with other Goods of whatever nature; or
(e) for the performance of any of its own obligations,and to do such acts as in the sole opinion of the Company may be necessary or incidental to the performance of the Company’s obligations.
21. (a) The Company shall be entitled but under no obligation to depart from the Customer’s instructions in any respect if in the sole opinion of the Company there is good reason to do so in the Customer’s interest and the Company shall not thereby incur any additional liability whatsoever, other than its liability (if any) hereunder.
(b) The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility of the Company in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
22. If at any time the performance of the Company’s obligations, in the sole opinion of the Company or any person whose services the Company makes use of, is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever and which cannot be avoided by reasonable endeavours by the Company or such other person, the Company may, on giving notice in writing to the Customer or Owner or without notice where it is not reasonably possible to give such notice, treat the performance of its obligations as terminated and place the Goods or any part of them at the Customer’s or Owner’s disposal at any place which the Company may deem in its sole opinion safe and convenient, whereupon the responsibility of the Company in respect of the Goods shall wholly cease. The Customer shall pay on demand any additional costs of carriage and delivery to and storage at such places and all other expenses incurred by the Company.
23. If delivery of the Goods or any part thereof is not taken by the Customer or Owner at the time and place when and where the Company or any person whose services the Company makes use of calls upon the Customer or Owner 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 such Goods shall wholly cease and the cost of such storage and all other expenses and liability whatsoever paid or payable or incurred or which may be incurred by the Company shall be paid by the Customer on demand.
24. Without prejudice to Clauses 22 and 23, the Company shall be entitled but under no obligation, at the expense of the Customer payable on demand and without any liability on the part of the Company to the Customer or the Owner, to sell or dispose:
(a) on giving 7 days’ notice in writing to the Customer of Goods or any part thereof which in the sole opinion of the Company cannot be delivered as instructed; or
(b) without notice to the Customer, of Goods which have perished, deteriorated or altered, or are in immediate prospect of doing so or which has caused or may reasonably be expected to cause loss or damage to any person or property or to contravene any applicable laws or regulations.
25. (a) All Goods and documents in the possession, custody and control of the Company or its agents shall be subject to a general lien and right of detention for all sums (including without limitation all costs and charges payable by the Customer) due to the Company at any time and from time to time whether in respect of Services provided or in respect of such Goods or other goods or otherwise. If the sums due as aforesaid are not satisfied within 7 days of a notice in writing by the Company to the Customer, the Company shall be entitled to sell or dispose of the Goods or documents whether by public auction, private treaty or otherwise, and the proceeds of sale shall be applied in satisfaction of firstly, the costs and expenses of the sale or disposal and secondly, the sums due to the Company without any liability whatsoever on the part of the Company to the Customer. In the event that the proceeds of sale are insufficient to satisfy all sums due to the Company, the Company shall be entitled to recover from the Customer all sums which remain outstanding.
(b) Notwithstanding Clause 25(a) above, 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.
26. The Company shall have the right to enforce against the Customer and Owner jointly and severally any liability of the Customer under these Conditions or to recover from them any sums to be paid by the Customer which upon demand have not been paid.
27. (a) If a Container has not been packed nor stuffed by the Company, the Company shall not be liable for loss of or damage to the contents thereof if caused by:
(i) the manner in which the Container has been packed or stuffed;
(ii) the manner in which the Container has been packed or stuffed;
(iii) the unsuitability or defective condition of the Container provided that where the Container has been supplied by or on behalf of the Company, this paragraph shall apply only if the unsuitability or defective condition (a) arose without any negligence on the part of the Company or (b) would have been apparent upon reasonable inspection by the Customer or Owner or person acting on behalf of either of them or (c) arose as a result of the peculiarity of the Goods and such peculiarity is not made known to the Company; or
(iv) the Container not being sealed at the commencement of any carriage.
(b) The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising from one or more of the matters provided for in (a) above.
(c) Where the Company is instructed to provide a Container, in the absence of any specific request in writing, the Company is not under an obligation to provide a Container of any particular type or quality.
28. (a) The Company shall not be liable for any loss or damage whatsoever arising from:
(i) the act or omission of the Customer or Owner or any person acting on their behalf;
(ii) compliance with the instructions given to the Company by the Customer, Owner or any other person entitled to give them;
(iii) insufficiency of the preparation, packing, storage, labelling or marking of the Goods except where such service has been provided by the Company;
(iv) handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf;
(v) inherent vice of the Goods;
(vi) riots, civil commotion, strikes, lockouts, stoppage or restrain of labour from whatsoever cause; or
(b) The Company shall not in any circumstances whatsoever and howsoever arising, including without limitation any negligence on the part of the Company, its servants and/or agents be liable for loss or damage howsoever caused to property other than the Goods themselves, indirect or consequential loss or damage, loss of profits, loss of market or the consequences of any delay or deviation.
Amount of Compensation
29. Except in so far as otherwise provided by these Conditions, the liability of the Company howsoever arising and notwithstanding that such liability shall have arisen from the neglect or default of the Company, shall not exceed:
(a) in respect of all claims other than those subject to the provisions of Clause 31 below, the lesser of
(i) the value of the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises; or
(ii) S$5.00 per gross kilogram of the said Goods,and shall not exceed S$100,000.00 in any event whatsoever in respect of any one claim; and
(b) in respect of claims for delay where not excluded by the provisions of these Conditions, the amount of the Company’s charges for the services in respect of the Goods delayed.
30. For the purposes of Clause 29 and Clause 31, the value of the Goods:
(a) shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid; and
(a) if there is no invoice value for the Goods, shall be calculated by reference to the value of such Goods at the place and time when they are delivered to the Customer or Owner, their assignees or such persons as instructed by the Customer or should have been so delivered. The value of the Goods shall be fixed according to the current market value or commodity exchange price or if there is no current market value or commodity exchange price, by reference to the normal value of Goods of the same kind and quality
31. By special agreement in writing and on payment of additional charges, higher compensation may be claimed from the Company not exceeding the value of the Goods or the agreed value, whichever is the lesser.
32. (a) The Company shall be discharged of any liability whatsoever unless:
(i) notice of any claim, such notice being a condition precedent to any liability on the part of the Company, is received in writing by the Company or its agent within 7 days after the date specified in (b) below; and
(ii) The Company shall be discharged of any liability whatsoever unless suit is brought in the proper forum within 9 months after the date specified in (b) below.
(b) The date referred to in Clause 32(a) above shall:
(i) in the case of damage to Goods, the date of delivery of the Goods, and in the case of loss of the Goods, the date the Goods should have been delivered;
(ii) in the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered; and
(iii) in any other case, the event giving rise to the claim.
33. (a) The Customer shall defend, indemnify and hold harmless the Company in respect of any general average or any claims of a general average nature which may be made on the Company and the Customer shall provide such security as may be required by the Company in this connection.
34. (a) Any notice served by post in relation to or in connection with the Agreement or the Services hereunder shall be conclusively deemed to have been received on the second day following the day on which it was posted to the address of the recipient last known to the Company. Any notice sent by facsimile transmission by the Customer or the Owner to the Company shall be conclusively deemed to have been received at the time of actual receipt by the Company. This clause shall be without prejudice to any other agreement or arrangement between the Company and the Customer or Owner relating to communications by means of Electronic Data Interchange.
35. (a) The waiver by the Company of a breach or default of any of the provisions set out in these Conditions shall not be construed as a waiver of any succeeding breach of the same or other provisions herein nor shall any delay or omission on the part of the Company to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the Customer.
36. (a) The rights and remedies conferred on the Company under these Conditions shall be cumulative and shall be in addition to and without prejudice to any rights or remedies otherwise available (whether at law or in equity) to the Company.
37. (a) The defences and limits of liability provided for by these Conditions shall apply in any action against the Company whether such action be founded in contract or tort or in whatsoever form.
(b) Notwithstanding any provisions to the contrary contained herein, Services in relation to goods of a fragile nature such as glass or china; antiques, works of art and pictures; bullion, precious metal objects and jewellry, precious stones; bank notes, coins, travelers cheques, drafts, credit and charge cards, any cards and documents entitling the holder to receive cash, goods or services, accounts, bills, deeds, evidence of debt; computer data on any medium, bonds, negotiable instruments or securities of any kind; goods of a perishable nature such as plants, foodstuffs or provisions; human remains; special goods such as live animals, birds, reptiles, fish and the like and radioactive cargoes are only rendered by the company solely at the Customer’s risk without any liability whatsoever to the Company, including without limitation any liability arising from the negligence of the Company.
(c) The rates published herewith are for the conveyance to all parts of the world of goods consisting of ordinary merchandise; the Customer is responsible for the payment of any increase in rates, freights, premiums or other charges which may be imposed after the commencement of the transit. Works of art and other goods of high value, goods out of proportion in bulk to their weight such as bicycles, perambulators, feathers, bamboo-furniture or hollow glass, may be accepted at rates which are available from the Company on request. Customs duties, local taxes and charges, porterage and local delivery expenses are additional to the rates for carriage unless otherwise stated. All rates and charges when payable abroad are liable to be slightly increased.
(d) The Company shall have the option of charging by value, weight or measurement.
Jurisdiction and Law
38. These Conditions and any claim or dispute arising out of or in connection with the Services of the Company shall be subject to Singapore law and the exclusive jurisdiction of the Singapore courts.