1) DEFINITIONS
In these Trading Condition unless there is anything repugnant in the subject or context:
a. Company
Company means EXCEL FREIGHT SYSTEMS (PVT.) LIMITED
b. Customer
Means any person by whom or in whose name or on whose behalf an understanding is made into with the Company to under-take any business, or provide information, advice or service.
C. Dangerous goods
Means goods that are classified as hazardous and/or may become of a dangerous, inflammable, radioactive, noxious or damaging nature.
D. Goods
Goods means the whole or any part of the cargo received from the customer and includes all kinds of packaging etc as well as the pallet or container supplied by or on behalf of the customer.
E. Instructions
Means a statement of the customer’s requirements provided by the customer to the Company in writing on Company’s stationary.
F. Sub-contractor
Means and includes any independent contractor to whom any part or portion of the contract is assigned for performance by the Company directly or indirectly, their respective agent and /or their sub-agent.
G. OWNER
Owner means the owner of the goods (including packaging, containers, or equipments) to which any business, concluded under these conditions relates and any person who is or may become interested in or in possession or entitled to possession of them.
2) Scope and application
2.1: Subject to clause (2.2) below, all and any activity of the Company in the course of business whether gratuitous or not are undertaken subject to these conditions.
2.2: 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) Company’s Liability
3.1: Basis of liability
3.1.1: The Company’s duty of care
The Company is liable, if it fails to exercise due diligence and to take reasonable measures in the performance of the freight forwarding services, in which case the company subject to Exclusion clause (3.3) shall compensate the customer for loss of and damage to the goods resulting from breach of its duty of care.
3.1.2: No liability for the third party
The Company is not liable for acts and omissions by third parties, such as, but not limited to, carriers, warehousemen, stevedores, port authorities and other Companies unless it has failed to exercise due diligence in selecting, instructing and supervising third parties.
3.2: Monetary limits of liability
3.2.1: Loss OF and damage TO the goods in general:
A. 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 goods lost or damaged, or
b) a sum at the rate of PKR 50.00 (fifty) per kilo of gross weight of any goods lost or damaged, subject to a limit of PKR 5,000.00 (five thousand) per package or unit, whichever shall be the least,
(ii) In 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 PKR 50.00 (fifty) per kilo of the gross weight of the goods the subject of the said transaction, subject to a limit of PKR 5,000.00 (five thousand) per package or unit, whichever shall be the least.
For the purposes of clauses under (3) above, the value of the goods shall be their value when they were or should have been shipped.
B. Subject to clause (2.2) 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 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 (3.2.1 B) above and subject to clause (2.2) above and sub clause (3.2.1 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 profits, 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 clauses 3.2.1(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.
3.2.2: NOTICE FOR CARRIAGE OF GOODS BY AIR:
If the Company acts as a principal in making an agreement for the carriage of goods by air, the following notice is hereby given:
- If the carriage involves an ultimate destination to or stopping place in a country other than the country of departure that limits the liability of carriers in respect of loss of or damage to cargo, the limit of liability shall not exceed as prescribed by/under law. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in the carriers' timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.
3.2.3: RECEIPT OF damageD goods:
Receipt by the Customer or Owner of visibly damaged goods without complaint shall invalidate any claim against the Company. Any claim against the Company arising from loss of or damage to the goods not visible at the time of receipt by the Customer or Owner must be made in accordance with the provisions of the applicable law.
3.2.4: DECLARATION OF VALUE:
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
3.3: Exclusion from liability
3.3.1: The Company shall in no event be liable for the loss or damage occurs for the following cargoes:
Blood stock, live stock, treasury notes, bullion, cash, bonds, deeds, stamps, securities, manuscripts, documents and plans
3.3.2: The Company shall not be liable for valuable and dangerous goods unless declared as such to the Company at the time of conclusion of contract.
3.3.3: The Company shall not be liable for loss following from delay unless expressly agreed in writing.
3.3.4: The Company shall not be liable for the consequential loss such as, but not limited to, loss of profit and loss of market.
3.3.5: The Company shall not be liable for any loss occurred due to unforeseen circumstances.
3.3.6: The Company shall not be liable for any loss or damage caused by;
- The act or omission of the customer, or person acting on behalf of the customer or of the person from whom the Company takes the goods in charge.
- Insufficiency of packing and/or marks and/or label and /or number save where the Company had undertaken in writing to carry out the packing, application of marks, or labeling and numbering of goods.
- Handling, loading, stowage, or unloading of the goods by the customer and the person acting on his behalf.
- Inherent vice of the goods.
- Strike, lockout, stoppage or restraint of the labor, the consequence of which the Company was unable to avoid.
3.3.7: That without prejudice to the clauses of these terms and conditions, the liability of the company is subject and restricted to the terms, conditions, exclusions, and qualifications contained in the Marine Umbrella Liability cover. In case of any conflict between any clause, term, or condition of this agreement with any clause, term, and condition of Marine Umbrella Liability cover, the Later would prevail.
3.3.8: 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.
3.3.9: Except under special arrangements previously made in writing the Company accepts no responsibility for departure or arrival dates of goods.
3.4: Assessment of compensation
The value of goods shall be determined according to the current commodity exchange price or, if there is no such price, by reference to the normal value of the goods of the same kind and the quality.
4) Company as an agent & principal
- The company shall be entitled to procure any or all of its services as an agent or to provide those services as a principal.
- The offer and acceptance of an all inclusive price for the accomplishment of any service or services shall not itself determine whether any such service is or services are to be arranged by the Company acting as agent or to be provided by the company acting as a contracting principal.
4.1: Company as an agent:
4.1.1: When and to the extent that the company in accordance with these conditions is acting as an agent on behalf of the customer, it is acting in a customary manner. The company shall be entitled, and the customer hereby expressly authorizes the company such entitlement, to enter into contracts on behalf of the customer and the owner;
- For the carriage of goods by any route or means or person.
- For the storage, packing, transshipment, loading, unloading or handling of the goods by any person at any place and for any length of time.
- For the carriage or storage of goods in or on transport units and with other goods of whatever nature, and
- To do such acts as may in the opinion of the company be reasonably necessary or desirable in the performance of its obligations to the customer and in the interests of the customer and the owner.
4.1.2: 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.
4.1.3: When acting as an agent the Company does not make or purport to make any contract with the customer for the carriage, storage, packing or handling of any goods nor for any other physical service in relation to them and act solely on behalf of the customer in securing services by establishing contracts with third parties so that direct contractual relationships are established between the customer and such third parties.
4.1.4: 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 its obligation, it shall be deemed to have contracted with the customer as a principal for the performance of the customer’s instructions
4.2: COMPANY AS THE PRINCIPAL:
When and to the extent the company has contracted as principal for the performance of any of its services, it undertakes to perform and/or in its own name to procure the performance of those services and subject always to the totality of these conditions hereof accepts the liability for the loss of or damage to the goods occurring between the time when it takes the goods into its charge and the time when the company is entitled to call upon the customer or the owner to take delivery of the goods. When the company contracts as the principal for any services it shall have full liberty;
- To perform such services itself, or
- To subcontract the whole or any part of such services to third parties (including the company’s own parent, subsidiary, or associated companies)
5) Customer’s obligations and liability
5.1: The Customer warrants:
a) that the description and particulars of any goods furnished by or on behalf of the Customer are full and accurate and he will be liable for consequences of any penalties levied by Port, Customs or other authorities arising from any incorrect information supplied.
b) that all goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked, and that the preparation, packing, stowage, labeling 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.
5.2: The customer warrants that either he is the owner of goods delivered to the Company for carriage or the authorized agent of the owner or also that he is accepting those conditions not only for himself but also as an agent for and on the behalf of the owner.
5.3: The customer shall be deemed to have guaranteed to the Company the accuracy, at the time the goods were taken in charge by the Company, of all particulars relating to the general nature of the goods, their marks, number, weight volume, the quantity and if applicable, to the dangerous character of the goods, as furnished by him or on his behalf.
5.4: Should the Customer otherwise than under special arrangements previously made in writing deliver to the Company or cause the Company to deal with or handle goods of a dangerous or damaging nature, or goods likely to harbor 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 a manner as the Company or any other Person in whose custody they may be at any relevant time shall think fit.
5.5: 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.
5.6: 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 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 of 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.
6) General duty of indemnification
a) Except to the extent of the Company’s liability, the customer shall indemnify the Company for all liability incurred in the performance of the Freight Forwarding services.
b) The customer shall be liable and hereby indemnifies the Company with respect to all duties, taxes, import levies, deposit and out lays what so ever nature levied by any authority in relation to the goods and for all payments, fines, costs, expenses, loss, or damage whatsoever incurred or sustained by the Company in connection therewith.
7) LIEN
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 retain, 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 21 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.
8) FREIGHT AND CHARGES
The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to Company.
9) DELIVERY
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 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 30 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.
c) Except under special arrangements previously made in writing or under the form 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 only as agents for the customer where third parties are engaged to effect compliance with the instructions.
d) The Company shall not be under any liability in respect of such arrangements as are referred to under clause (a) hereof save where such arrangements are made in writing.
e) In any event, the Company's liability in respect of the performance or arranging the performance of such instructions shall not exceed that provided for in these conditions in respect of loss of or damage to goods,
10) INSURANCE
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 affect 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 with the customer to arrange insurance, the Company acts solely as agent for the customer, at his costs, using its best endeavors to arrange such insurance and does so subject to the limits of liability contained in clauses (3) hereof.
11) Arbitration
11.1: This agreement is governed by the law of Pakistan. Any differences or disputes arising out of this agreement shall be referred to arbitration in accordance with the prevailing law and under the provisions of the Arbitration Act, 1940 or any amendments thereof. The forwarder and each party shall nominate one arbitrator each, and in case of difference of opinion between the arbitrators, the two nominated arbitrators shall mutually appoint an umpire whose decision shall be final and binding on the parties. The arbitrators and umpires
to be appointed under this clause shall only be from the panel of arbitrators duly approved by the Pakistan International Freight Forwarders Association (PIFFA). The arbitration shall be held at the Company’s principal place of business, in the English language.
11.2: Any provision of this agreement which is determined to be invalid / unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this agreement/affecting the validity/enforceability of such remaining provisions. In the event of a conflict between any provision of this agreement and any law regulation or decree affecting this agreement, the provision of this agreement so affected shall be regarded as null and void or shall, where practicable, be limited to the extent necessary to bring it within the requirements of such law regulation or decree but otherwise it shall not effect or render null and void other provisions of this agreement.
12)TIME LIMIT
Any claim against the Company shall be Time Barred within a period of 1-year commencing from the day of delivery of goods to the consignee named in the contract/transport document or, if no delivery has taken place, from the date of the conclusion, which is the date of the shipment.
13)Jurisdiction and applicable laws
In case, the dispute, if any, is not resolved amicably or through arbitration as per clause (11) of this contract, the matter shall be referred to the competent court of law of Pakistan holding jurisdiction over the matter and no other court beyond the territories of Pakistan shall have the jurisdiction to take cognizance of any dispute or matter whatsoever emanated from this contract or otherwise between the company and the customer. |
