BRITISH INTERNATIONAL FREIGHT ASSOCIATION (BIFA) STANDARD TRADING CONDITIONS2017 EDITION © 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 7, 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.
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” – 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, the Company:
(i) 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;
(ii) shall be entitled, on at least 21 days’ notice in writing to the Customer, to sell or dispose of ordeal 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;
(iii) 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 Customer’s 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 wholly 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):
(i) 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
(ii) 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 container packed with packages and cargo items), and measurements 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; and
(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 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.
(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, counter claim or set-off. 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.
(C) No omission to seek compensation for breach of 21(A) and (B) above by the Company shall constitute a waiver or release to the Customer from any liability under 21(A) and (B) above during the application of these terms unless agreed in writing by authorised officers of the Company and Customer.
(D) The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to all sums due from the Customer.
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 clause2(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 lower.
(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 2 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(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) 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 (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.
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 proceedings;
(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.
COPYRIGHT © BIFA 2017
TERMS AND CONDITIONS FOR THE SUPPLY OF CARNETS (“CONDITIONS”)
Dynamic International Freight Services Limited of Unit 1 Trident Industrial Estate Blackthorne Road Colnbrook Berkshire SL3 0AX (“we”, “us” “our”) will supply the Services on the Conditions set out below. All Customers agree to use the Services and Carnets strictly subject to these Conditions. Any use of the Services and/or a Carnet (or Carnets) by a Customer shall signify an acceptance by them to be bound by and to act in accordance with these Conditions.
1.1. In these Conditions the following words shall have the following meanings:
“Carnet” means the ATA Carnet issued under the International Convention relating to ATA Carnets, which we supply to Customers as part of the Services;
“the Chamber” means the London Chamber of Commerce and Industry; “Customer” means any of our customers who request us to supply the Services or any part of the Services;
“Equipment” means any article or articles(s) of equipment, in respect of which, a Customer requires a Carnet;
“Fees” means our fees for providing the Services as set out in clause 5;
“Information and Rules” means all information and rules supplied or made available by us, the Chamber or any of our agents or the Chamber’s agents whether verbally, in writing or otherwise that relate in any way to the Services or to the Carnets;
“Order” means your request for us to provide the Services in consideration of the Fees;
“Services” means the supply of a Carnet or Carnets to Customers for use with Equipment and the provision of information in relation to the Carnet(s);
“Security” means the security to be provided by us to the Chamber in relation to the Carnet(s);
1.2. Headings used in these Conditions are for convenience only and shall not affect their interpretation.
1.3. These Conditions cannot be varied unless agreed in writing.
1.4. References to the singular shall include the plural and vice versa.
2. THE SERVICES
2.1. We will not be obliged to accept any Order placed by Customers.
2.2. If we accept an Order we will use reasonable skill and care to provide the Services.
2.3. Whilst we have expertise in providing the Services we cannot make any guarantee about the effectiveness of any Carnets in helping to transport Customer’s Equipment to the desired destinations. Carnets may not be effective if they are not used strictly in accordance with the Information and Rules, even when Carnets are used correctly they may not be effective if for example Customs Officers or any other relevant third parties from around the world process the Carnets incorrectly.
3. CUSTOMER’S RESPONSIBILITIES
3.1. The Customer shall at all times (or shall procure that third parties shall at all times) use and complete the Carnet(s) strictly in accordance with the Information and Rules. To the extent that a Customer is not entirely clear about the use of the Carnet(s) in any way it is the responsibility of the Customer to seek the necessary guidance from us or where appropriate from the Chamber.
3.2. In order to assist the Customer in complying with clause 3.1 above the Customer shall ensure that all individuals who are in possession of the Carnet at any time:
3.2.1. are fully aware of the Customer’s obligations under these Conditions; and
3.2.2. comply with these Conditions as if they were the Customer.
3.3. The Customer agrees that it is entirely responsible for the acts or omissions of all individuals who are at any time in possession of the Carnet.
3.4. The Customer shall give us notice as soon as reasonably practicable of any problems that they may encounter in relation to the use of the Carnet or the use of the Services in general and shall at the same time provide us with all information in relation to the problem. The issue of the Carnet does not absolve the Customer from complying with any applicable legislation or rules, for example but not limited to export licences, criminal law or the need for firearm certificates, which shall be the responsibility of the Customer.
3.5. The Customer shall be entirely responsible for the Equipment and the Customer warrants that they and all of the Equipment comply with all laws, regulations, codes of practice and any other relevant rules that may affect the Customer and/or the Equipment during their respective journeys.
3.6. The Customer agrees to comply with all reasonable instructions that we or where relevant the Chamber may give to them.
3.7. The Customer shall return the Carnet to us duly completed immediately after use but at the latest within 12 months from the date of issue. In order to complete the return of the Carnet to us we must be in receipt of it. If the Carnet is sent, Customers shall send it by registered post and if the Carnet is returned by hand the person returning it must sign our Carnet Register and must collect a receipt from us as evidence of our acceptance of the Carnet. A Customer must be able to supply a valid receipt if it wants to show that a Carnet has been returned to us.
3.8. The Customer shall ensure that they have in place appropriate insurance protection for all losses costs or expenses that may arise from any misuse, delay or failure of a Carnet, for example for losses flowing from the Customer’s delay or failure to take Equipment to the intended destination which is caused in any way by a Carnet or the lack of a Carnet.
4. SECURITY AND INDEMNITY
4.1. In order to use a Carnet the Chamber requires the provision of Security in order to guarantee any payments they are required to make to foreign authorities.
4.2. As part of the Services we shall provide the required Security to enable Customers to use the Carnets. In order to provide this as part of the Services we require all Customers to indemnify us as set out in clause 4.3 below. We are not released from the Security in relation to each Carnet until that particular Carnet has been returned to the Chamber duly completed and is officially released by the Chamber or until 33 months has expired from the date of issue of the Carnet.
4.3. The Customer agrees to indemnify us for all losses, liabilities, costs, fees, payments and expenses that relate in any way to the Customer and/or to their relevant Carnet(s) and in particular that relate to any claim made by the Chamber (including any claim made by a foreign Customs Authority via the Chamber) in relation to the Customer and/or their relevant Carnet(s). Furthermore the Customer agrees to indemnify us for all losses, liabilities, costs, fees, payments and expenses that relate in any way to any breach by the Customer of any of these Conditions.
5.1. The Customer will pay the Fees as set out in the invoice. Payment of the Fees shall be made by the Customer within 30 days of the date of the invoice. Payment of the Fees shall not be made until received by us in cleared funds.
5.2. If the cost of providing the Services increases for any reason we may give notice of an increase of the Fees to our Customers. If a Customer does not accept the increase they can cancel the Order and we shall have no obligation to provide the Services. In such circumstances the Customer shall reimburse us for any costs or expenses incurred by us in relation to such Customer.
5.3. If at any stage the Customer uses a Carnet outside of the scope of their Order, for example for a longer period or in respect of different destinations, we reserve the right to amend the Fees and the Customer agrees to pay for any shortfall within 30 days of the date of invoice in relation to such shortfall.
5.4. The Fees and any additional charges payable under these Conditions are stated exclusive of VAT which shall be paid by Customers in addition and at the appropriate rates.
5.5. Without prejudice to all of our rights or remedies in the event of any later payment by a Customer under these Conditions we reserve the right to:
5.5.1. charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; or
5.5.2. suspend or terminate the provision of the Services in relation to such Customer.
6.1. We will use reasonable endeavours to deliver Carnets by any estimated delivery dates. Furthermore we will use reasonable endeavours to carry out any other actions by any estimated dates. However, time in relation to all such estimated dates is not of the essence.
6.2. We shall in no event be liable to Customers for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay or failure in delivery of any Carnets or any other obligations under these Conditions.
7. INTELLECTUAL PROPERTY
7.1. Nothing in these Conditions assigns any ownership in any way of any intellectual property rights that may exist in any Carnet or any other part of the Services. All such intellectual property rights are owned by the Chamber, by us or by our respective licensors as appropriate. Customers shall therefore not copy or modify the Carnets.
8.1. These Conditions are in lieu of all other Conditions, warranties, or other terms which may otherwise by implied whether by statue, common law or otherwise which are, to the greatest extent permitted by law, excluded.
9. LIMITATION OF LIABILITY
9.1. All Customers acknowledge that we are only able to offer the Services on the basis of the following limitations and exclusions of liability. We have in place certain insurance protection in relation to our business but we cannot know what losses our Customers may suffer as we do not know the extent and workings of their business. It is therefore the responsibility of Customers to ensure that they have adequate insurance in place to protect them in the event that the Services, for whatever reason fail. We are only able to offer our Fees on the basis of the limitations and exclusions of liability as set out below.
9.2. This clause 9 prevails over all other clauses in these Conditions and sets forth our entire liability to Customers in respect of the performance, non performance, purported performance or delay in performance of the Services and any breach of these Conditions in general.
9.3. Nothing in these Conditions shall limit or exclude liability for death or personal injury caused by our negligence.
9.4. We shall in no event be liable for any loss of profits; loss of contracts; loss of use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; or any indirect or consequential loss. All such liability is excluded whether it is foreseeable, known or otherwise and the exclusions shall all apply whether such losses are direct, indirect, consequential or otherwise.
9.5. Subject to clause 9.3 our liability in contract, tort (including negligence or breach of statutory duties) misrepresentation or otherwise shall in no circumstances exceed the sum of the Fees payable by the Customer in relation to the relevant Carnet, if such limitation is considered to be unreasonable by a court or body with competent jurisdiction, such liability shall be limited to the amount received by us from our insurance provider in relation to the Customer’s claim.
9.6. We shall in no event be liable to any Customer to the extent that any loss or damage suffered is in any way a result of any breach by such Customer of any provision of these Conditions.
10.1. Without prejudice to any other provisions of these Conditions we may terminate any agreement formed under these Conditions immediately on written notice:
10.1.1. if a Customer commits any material breach of any provision of these Conditions and if such breach is capable of being remedied the same shall not have been so remedied within 30 days after receipt of written notice requiring the same to be remedied;
10.1.2. if a Customer makes a voluntary arrangement under Part I of the Insolvency Act 1986 (as amended by the Enterprise Act 2002) , or makes or proposes any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors; or enters into administration or is the subject of an administration order under the Insolvency Act 1986 or the Enterprise Act 2002; or shall enter into administrative receivership; or is the subject of a resolution for voluntary winding up otherwise than for the purpose of amalgamation or reconstruction when solvent; or has a winding up order made against it; or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or has an encumbrancer taking possession of any of its assets; or ceases to or threatens to cease to exist; or if in relation to the Customer there occurs in any jurisdiction any event or process (by whatever name called) equivalent or similar to any event or process mentioned in this clause 10.1.2.
10.2. Termination of an agreement shall not affect any accrued rights or liabilities of either party or affect the coming into force or the continuance in force of any provision of these Conditions which is expressly or by implication intended to come into or continue in force on or after such termination, for example the indemnity given in clause 4.3. On termination howsoever caused the Customer shall immediately return the Carnet or Carnets to us as prescribed by clause 3.7. Upon termination we shall have no further obligations to the Customer in relation to these Conditions.
11. FORCE MAJEURE
11.1. We shall not be liable to Customers for any delay or non performance of our obligations under these Conditions arising from any cause or causes beyond our reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, infrastructure failure, failure of any third party, power failure, explosion or civil commotion.
12.1. All notices to be given under these Conditions shall be in writing and shall either be delivered personally or sent by first class or airmail prepaid post or facsimile transmission and shall be deemed duly served:
12.1.1. in the case of a notice delivered personally, at the time of delivery;
12.1.2. in the case of a notice sent inland by first class prepaid post, 2 clear business days after the date of dispatch;
12.1.3. in the case of a notice sent overseas by airmail, 7 business days (being business days in the place to which the notice is dispatched) after the date of dispatch: and
12.1.4. in the case of facsimile transmissions, if sent during normal business hours then at the time of transmission and if sent outside normal business hours then on the next following business day provided (in each case) that a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day. Each notice shall be addressed to our address set out in these Conditions or to such other address as we shall have previously notified to the sender.
13.1. Customers may not assign or transfer any rights, licences or obligations under these Conditions without our prior written approval.
14. ENTIRE AGREEMENT
14.1. Any agreement formed under these Conditions supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of such agreement. The parties confirm that they have not entered into any agreement on the basis of any representation that is not expressly incorporated (or appropriately referred to) in these Conditions.
15.1. If any provision of these Conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from any agreement formed under these Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Conditions, and shall not in any way affect any other circumstances or the validity or enforcement of these Conditions.
16.1. No delay, neglect or forbearance on the part of either party in enforcing against the other party any provision of these Conditions shall either be or be deemed to be a waiver or in any way prejudice any right of that party under these Conditions. No right, power or remedy in these Conditions conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
17. RIGHTS OF THIRD PARTIES
17.1. The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Conditions except to the extent that any provision of these Conditions expressly provides to the contrary.
18. APPLICABLE LAW AND JURISDICTION
18.1. These Conditions shall be governed by the laws of England and Wales and the English courts shall have exclusive jurisdiction in relation to any dispute in relation to these Conditions.