1.1 The following definitions apply to these Conditions:
“Carrier” means the carrier appointed by the Company to deliver the Goods;
“Company” means Harlor Limited (registered in England and Wales with company number 02515378) t/a Universal Forwarding;
“Conditions” means these terms and conditions as amended from time to time;
“Consignee” means the Person to whom the Goods are consigned;
“Contract” means the contract between the Company and the Customer for the provision of the Services in accordance with these Conditions;
“Customer” means any Person at whose request or on whose behalf the Company undertakes any business, or provides any advice, information or services to;
“Data Protection Legislation” means EU Directive 95/46/EC, as implemented into domestic legislation of each member state and as amended, replaced or superseded from time to time, including the GDPR and laws implementing or supplementing the GDPR.
“Direct Representative” means the Company acting in the name of and on behalf of the Customer and / or the Owner with H.M. Revenue and Customs as defined by Council Regulation 2193/92 or as amended;
“Goods” means the cargo to which any business under these Conditions relates;
“Order” means the Customer’s order for the Company to provide the Services;
“Owner” means the Owner of the Goods and any other Person who is or may become interested in them;
“Person” means natural person, or any body or bodies corporate;
“SDR” means Special Drawing Rights as defined by the International Monetary Fund; and
“Services” means the movement of Goods from point of origin to destination.
1.2 The following rules of interpretation apply to these Conditions:
1.2.1 a reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 a reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to the Company for the Company to provide the Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
2.2.1 the Company issuing written acceptance of the Order; or
2.2.2 any act by the Company consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer, Consignee, Owner or any other Person seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 If any legislation is compulsorily applicable to the Services, these Conditions shall be 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 incompatible with that legislation, such part shall be void to that extent but no further.
3. THE SERVICES
3.1 The Company shall:
3.1.1 use all reasonable endeavours to meet any performance dates specified in the Contract, but such dates shall be estimates only and time shall not be of the essence for performance of the Services;
3.1.2 in its absolute discretion, decide the means, route and procedure to be followed when providing the Services;
3.1.3 not be obliged to arrange for the Goods to be carried, stored or handled separately from the goods of any other customers; and
3.1.4 be entitled to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. The Company shall notify the Customer in any such event.
3.2 The Services may be performed by the Company or by a third party instructed or employed by the Company, all or in part.
4. CUSTOMER OBLIGATIONS
4.1 The Customer warrants that:
4.1.1 it is the Owner or the authorised agent of the Owner of the Goods;
4.1.2 it is authorised to accept and duly accepts these Conditions not only for itself but also as agents for and on behalf of all other persons who are or may become interested in the Goods; and
4.1.3 all descriptions, values and other particulars provided to the Company for customs, consular and other purposes are accurate. The Customer undertakes to indemnify the Company against all losses, damages, expenses and fines whatsoever arising from any inaccuracy or omission, even if such inaccuracy or omission is not due to any negligence.
4.2 The Customer shall be liable for any duties, taxes, imposts, levies, deposits or outlays of any kind levied by authorities at any port or place for or in connection with the Goods and for any payments, fines, expenses, loss or damage whatsoever incurred or sustained by the Company in connection therewith.
4.3 The Customer undertakes that it shall indemnify the Company against all liabilities, loss, damage, costs and expenses whatsoever suffered or incurred by the Company arising directly or indirectly from or in connection with the Customer’s instructions, or arising from any breach by the Customer of any warranty contained in these Conditions, or from negligence of the Customer and, in particular, the Customer shall indemnify the Company in respect of any liability, loss, damage, costs and expenses whatsoever it may be under to any servant, agent, or sub-contractor or any haulier, carrier, warehouseman, or any other person indirectly against any such party by the Customer or by any sender, Consignee or Owner of the Goods or by any person interested in the Goods or by any other person whatsoever.
5.1 Pending forwarding or delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Company and at the cost of the Customer.
5.2 The Company shall be entitled to store the Goods, or any part thereof, at the sole risk of the Customer, or sell or dispose of all non-perishable Goods, which in the opinion of the Company cannot be delivered, either because they are insufficiently or incorrectly addressed, or because they are not collected or accepted by the Consignee, or for any other reason, upon the Company giving 21 days’ notice in writing to the Customer, whereupon the Company’s liability in respect of the Goods shall wholly cease. All charges and expenses arising in connection with the storage and sale or disposal of the Goods shall be paid by the Customer.
Except where the Company agrees in writing to pack the Goods on behalf of the Customer, the Customer warrants that all consignments of the Goods (and any separate package forming part of the consignment) have been properly and sufficiently packed, stowed, labelled and / or prepared and that such packing, stowage, labelling and preparation is appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods.
7. CHARGES AND PAYMENTS
7.1 The Customer shall pay each invoice issued to it by the Company in full and in cleared funds within 30 days of the date of issue.
7.2 In the event that the Company issues an invoice to the Customer in respect of HM Customs import VAT and DUTY, such invoice shall be paid immediately.
7.3 Without prejudice to any other right or remedy that the Company may have, if the Customer fails to pay the Company on the due date, the Company may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.4 All sums due to the Company from the Customer in accordance with this clause 7 shall be paid to the Company in cash immediately when due without reduction and payment, and shall not be withheld, delayed, conditioned or deferred on account of any claim, counterclaim or set-off.
7.5 Time for payment under this clause 7 shall be of the essence.
Quotations are given on the basis of immediate acceptance by the Customer and are subject to withdrawal or revision at any time by the Company. The Company shall, after acceptance, be permitted to revise quotations or charges with or without notice to the Customer in the event of changes occurring in currency exchange rates, rate of freight, insurance premiums or any other charges applicable to the Goods.
9.1 Either party may terminate the Contract at any time by providing notice to the other party. Termination shall be effective from the date on which notice of termination is received by the other party.
9.2 If the Customer terminates the Contract prior to completion of the Services, the Company may claim fair and reasonable compensation for any costs, loss or expenses incurred as a result of the Customer’s termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
9.3 If the Company terminates the Contract prior to completion of the Services, the Company has no obligation or liability to the Customer, Owner or any other Person.
10. RISK AND RESPONSIBILITY
Risk in and responsibility for the Goods shall remain with the Customer until such time as the Goods are in the possession of the Carrier, at which point risk in and responsibility for the Goods shall pass to the Carrier.
11.1 The Customer shall, at its own expense, obtain and maintain:
11.1.1 such insurance policies as a prudent owner of goods of a similar kind to the Goods would obtain to cover all usual risks of loss, damage, destruction by fire, theft, collision or accident, and wreck removal to a value not less than the full replacement value of the Goods; and
11.1.2 insurance of a sufficient amount to cover any third party or public liability risks of whatever nature and however arising in connection with the Goods.
11.2 In the event that the Customer requests that the Company provides any insurance cover and such request is accepted in writing by the Company, any and all insurances effected by the Company shall be subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk. 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. Should the insurers dispute their liability for any reason, 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 the Customer.
12. LIMITATION OF LIABILITY
12.1 Nothing in the Contract shall limit or exclude the Company’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982, or any other liability which cannot be limited or excluded by applicable law.
12.2 The Company shall only be responsible for any loss of or damage to the Goods, or for any non-delivery or mis-delivery of the Goods if it is proved that the loss, damage, non-delivery or mis-delivery occurred whilst the Goods were in the actual custody of the Company and under its actual control and that such loss, damage, non-delivery or mis-delivery was due to the negligence, wilful neglect or default of the Company or its own servants and the Company shall not be held liable for any loss, damage, non-delivery or mis-delivery caused by or attributable to any other party, including but not limited to, the Carrier.
12.3 The Company shall only be liable for non-compliance or mis-compliance with instructions given to it by the Customer if it is proved that the same was caused by the negligence, wilful neglect or default of the Company.
12.4 In the event of loss of the Goods, or any separate package forming part of the consignment of the Goods, following delivery or collection by the Carrier of the same, the Company shall have no liability towards the Customer for such loss or non-delivery but shall, if requested to do so, provide the Customer with such reasonable assistance, at the cost of the Customer, to enable the Customer to take action against the Carrier, or such other party, as the case may be.
12.5 Save as aforesaid, the Company shall be under no liability whatsoever however arising, and whether in respect of or in connection with the Goods or any instructions, business, advice, information or service or otherwise including (but not limited to), for any failure by the Company to adhere to agreed departure or arrival dates of the Goods.
12.6 The Company shall not in any event be under any liability whatsoever for any indirect or consequential loss such as (but not limited to) loss of profit or loss of market or fire or consequence of fire or delay or deviation however caused, or any cause or event which the Company is unable to avoid and the consequences of which the Company is unable to prevent including (but not limited to) any strike, lock-out, stoppage or restraint of labour.
12.7 In no case whatsoever shall any liability of the Company howsoever arising and notwithstanding any lack of explanation exceed:
12.7.1 the value of the Goods;
12.7.2 a sum at the rate of two (2) SDR (as published in the most recent edition of the Financial Times preceding the date on which the relevant booking was placed with the Company) per kilo based on the actual gross weight of the Goods; or
12.7.3 50,000 SDR in respect of any one transaction, whichever shall be the least.
12.8 In any event, the Company shall be discharged from all liability:
12.8.1 for loss from a package or an unpacked consignment or for damage or mis-delivery (however caused) unless notice of a claim is received in writing by the Company from the Customer no later than seven (7) days after the end of the transit where the transit ends in the British Isles or, where the transit ends in any place outside the British Isles, no later than fourteen (14) days after the end of the transit where the transit is by air or three (3) days after the end of the transit where the transit is by sea; or
12.8.2 for loss or non-delivery of the whole of the Goods or any separate package forming part of the consignment of the Goods (however caused), unless notice of a claim is received in writing by the Company from the Customer or Owner within twenty-eight (28) days of the date when the Goods should have been delivered and unless any legal proceedings are brought (and written notice of them is given to the Company) within six (6) months of the date when the Goods should have been delivered.
13.1 Any claim not notified in accordance with clause 12.8 shall be deemed to be waived and absolutely barred.
13.2 The Company shall not be obliged to make any declaration for the purpose of any statute or convention or contract as to the nature or value of the Goods or as to any special interest in delivery, unless expressly instructed by the Customer in writing.
13.3 Where there is a choice of rates according to the extent or degree of the liability assumed by the Carrier, warehousemen or any other third party, the Goods will be forwarded, and / or otherwise dealt with, at the Customer’s sole risk and no declaration of value (where optional) will be made, unless express instructions in writing to the contrary have previously been given by the Customer.
14. PERISHABLE GOODS
Perishable Goods which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not readily identifiable may be sold or otherwise disposed of without any notice to the Customer and payment or tender of the net proceeds of any sale after deduction of charges and expenses shall be equivalent to delivery. All charges and expenses arising in connection with the sale or disposal of the Goods shall be paid by the Customer.
15. EXEMPT GOODS
15.1 Except under special arrangement previously agreed in writing between the Customer and the Company, the Company will not accept or deal with any noxious, dangerous, hazardous or inflammable or explosive, or anything likely to cause damage, or bullion, coins, precious stones, jewellery, valuables, antiques, livestock or plants (hereinafter referred to as “Exempt Goods”).
15.2 Should the Customer nevertheless deliver Exempt Goods to the Company or cause the Company to handle or deal with Exempt Goods, the Customer shall be liable for all loss or damage whatsoever caused by or to or in connection with the Exempt Goods however arising and the Customer shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever and however arising in connection therewith and Exempt Goods may 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.
15.3 If Exempt Goods are accepted by the Company under arrangements previously made in writing they may nevertheless be so destroyed or otherwise dealt with so as to minimise the risk to other goods, property, life or health.
The Goods (and any documents relating to the Goods) shall be subject to a particular and general lien and right of detention for any and all monies due to the Company either in respect of such Goods, or for any particular or general balance or other monies due from the Customer, Consignee, Owner or any other Person to the Company. If any monies due to the Company are not paid within one (1) calendar month after notice has been given to the person from whom the monies are due that such Goods are being detained, the Company may, without prejudice to any other rights or remedies it may have, sell those Goods by auction or otherwise, at the Company’s sole discretion and at the expense of such persons, and the net proceeds of such sale shall be applied in or towards satisfaction of such indebtedness.
17. FORCE MAJEAURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
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19.1 The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remuneration customarily retained by, or paid to, freight forwarders.
19.2 In any and all 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.
19.3 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.4 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
19.4.1 waive that or any other right or remedy; or
19.4.2 prevent or restrict the further exercise of that or any other right or remedy.
19.5 If any provision or part provision of the Contract is or becomes invalid, illegible or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity or enforceability of the rest of the Contract.
19.6 No one other than a party to the Contract shall have any right to enforce any of its terms.
19.7 These Conditions and the Contract shall be governed by English Law and be within the exclusive jurisdiction of the English Courts.