| 1. |
|
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.
|
|
| 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 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 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. |
| 5. |
|
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). |
| 6. |
|
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. |
| 7. |
|
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. |
| 8. |
(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. |
| 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) |
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):-
(i)
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
(ii)
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.
|
| 11. |
(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). |
| 12 |
(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. |
| 13 |
|
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. |
| 14 |
(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. |
| 15 |
|
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. |
| 16 |
|
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 |
|
|
| 17 |
|
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. |
| 18 |
|
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. |
| 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 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. |
| 21 |
(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. |
| 22 |
|
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. |
| 23 |
|
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. |
|
|
| 24 |
|
The
Company shall perform its duties with a reasonable degree of care,
diligence, skill and judgement. |
| 25 |
|
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. |
| 26 |
|
Except
under special arrangements previously made in writing the Company
accepts no responsibility for departure or arrival dates of goods. |
| 27 |
(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:
(i) in the case of claims for loss or damage to goods: (a) the value
of any goods lost or damaged, or (b) 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.
(ii) in the case of all other claims: (a) the value of the goods
the subject of the relevant transaction between the Company and
its Customer, or (b) a sum at the rate of two SDRs per kilo of the
gross weight of the goods the subject of the said transaction, or
(c) 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. |
| 28 |
(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. |
|
|
| 29 |
|
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 |
