China International freight forwarders Association
Trading Conditions
1.
Definitions
In these Conditions, the following words and expressions have the following meanings unless and except as otherwise specifically defined:
¡°Company¡±
means (name of a certain freight forwarder), a member of China International Freight Forwarders Association trading under these Conditions.
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¡°Customer¡±
means any legal entity or natural person concluding contract with the Company, accepting the service provided by the Company and enjoying rights and undertaking obligations according to the contract, or any legal entity or natural person having an interest in the contract, including but not limited to owner, consignor, shipper, consignee of the goods or their agents.
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¡°Instructions¡±
means statements of the Customer's specific requirements and includes the instructions specified on the front of the Shippers' Instructions and/or on the front of the Company's form of transport document (including the Company's house bill of lading).
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¡°Owner¡±
means the owner of the goods (including any containers or equipment other than
those provided by the Company or carriers) to which any business concluded
under these Conditions relates and any other person who is or may become
interested in them and includes the consignee named on the front of the
Shippers' Instructions and/or on the front of the Company's form of transport
document (including the Company's house bill of lading).
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¡°Goods¡±
includes live
animals and the containers, pallets or similar articles of transport supplied
by the shipper for consolidating the goods.
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¡°Dangerous Goods¡±
means the goods classified as dangerous goods under international conventions or domestic laws and the goods that are likely to become dangerous, flammable, radioactive, noxious or damaging.
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2.
Application of these
Conditions
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2.1
All
business undertaken by the Company and Company's transactions are subject to
these Conditions which shall be incorporated in and to be an integral part of
any agreement between the Company and the Customer. These Standard Trading
Conditions may be modified or waived by agreement between the Company and the
Customer reduced into writing. Where the clauses of the agreement between the
Company and the Customer or the clauses of the transport documents issued by
the Company, which includes but are not limited to airway bill, seaway bill and
multi-modal bill of lading issued by the Company listing the Company as the
carrier are contrary to these Conditions, the clauses of the agreement or the
bills shall prevail.
2.2
All
and any advice, information or services provided by the Company gratuitously is
provided on the basis that the Company will not accept any liability whatsoever
therefor.
2.3
No
omission or delay on the part of the Company in exercising its rights shall operate
as a waiver thereof, nor shall any single or partial exercise by the Company of
any such right preclude the further or other exercises thereof or the exercise
of any other right which it has. The rights and remedies of the Company
provided in these Conditions shall be cumulative and not exclusive of any
rights or remedies otherwise provided by law.
2.4
Each
of the provisions of these Conditions is severable and distinct from the others
and if at any time one or more of such provisions is or becomes invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of these Conditions shall not in any way be affected or
impaired thereby.
3.
Contractual Status of the Customer and the Company
3.1
The
Customer entering into any transaction or business with the Company hereby
expressly warrants to the Company that the Customer is either the Owner or the
authorized agent of the Owner and that it is accepting these Conditions. Where
the Customer acts as the agent of the Owner, the Customer also accepts such
liability to the Company that in respect of such transaction or business the
Company is entitled to enforce its rights against the Customer and the Owner
jointly and severally.
3.2
Services
are provided by the Company as agents on behalf of its Customers, except in one
or more of the following circumstances where the Company acts on its own
behalf:
(1) The Customer's goods are actually carried,
transported, handled or stored by the Company or its servants and the goods are
under the actual control or custody of the Company,
(2) The Owner has demanded in writing the Company to
give information (name, freight rate) of the carriers undertaking the whole or
part of the carriage before the goods are carried but the Company fails to
provide such information within 28 days from receipt of such written demand,
(3) The Company has expressly agreed in writing to act
on its own behalf, or
(4) The Company is held by a court or arbitration
agency to act on its own behalf.
3.3
Without
prejudice to the generality of provisions in 3.2,
(1) The Company charges the Customer for services of
whatever nature at a fixed rate and itself does not decide or show it acts as
agent or as principal.
(2) The Company provides equipment owned or rented by
it and itself does not decide or show it acts as agent or as principal in
carrying, handling or storing the goods.
(3) If the bill of lading or other documents obtained
by the Company can show that the carriage contract is entered into by other
persons with the Owner or Customer, the Company is the agent.
(4) The Company acts as agent instead of principal
when providing services such as Customs clearance, taxation, taking out
license, consular documents and certificate of origin, inspection, and
notarization.
4.
Obligations of the Customer
4.1
The
Customer warrants that it has taken all the sufficient and effective measures
to have a full understanding of the contents of the agreement with the Company
and of the documents issued by the Company for the Customer at the time of
concluding or accepting such agreement or documents.
4.2
The
Customer warrants that each and every of the Instructions given to the Company
is lawful, valid and performable.
4.3
The
Customer warrants that the presentations it made to the Company concerning the
goods are sufficient and correct.
4.4
The
Customer warrants that the packing and marks of the Goods met the requirement
of carriage. The Customer shall comply with the special requirements demanded
by the Company at the time of receiving the goods according to the nature of
the goods and the special conditions of the voyage.
4.5
Except
under special arrangements previously made in writing, the Customer warrants
that the goods are not the dangerous goods as defined under binding documents
such as laws, regulations, international conventions, nor are other goods
likely to cause damage. Should the Customer nevertheless deliver any such goods
to the Company or cause the Company to accept or handle or deal with any such
goods otherwise than under special arrangements previously made in writing, the
Customer shall be liable for all expenses, losses, damages whatsoever caused,
fines and claims in connection with the goods howsoever arising. The Company or
other persons in actual control of the goods has the right to decide whether
the goods are dangerous goods without notice to the Customer and shall be
entitled to destroy or otherwise dispose of the goods at the risk and expenses
of the Customer.
4.6
The
Customers shall not ask the Company to stop carriage, return the goods, change
the place of destination, or deliver the goods to other consignee or dissolve
the contract unless, before the Company delivers the goods to the consignee,
the Customers return all bills or transport documents previously issued by the
Company and shall compensate the Company for all the losses caused to the
company.
5.
Rights and Obligations of the Company
£¨¢ñ£©General
provisions
5.1
Unless
otherwise previously agreed in writing, the Company is authorized to enter into
contract on its own behalf or on behalf of the Customer for the following matters,
without notice to the Customer:
(1) selecting the carrier, mode and route of transport
for the goods;
(2) selecting whether to containerize the goods or not
and whether to carry the goods on deck or not;
(3) for the storage, packing, unpacking, transshipping
or otherwise handling of the goods;
(4) other arrangements in pursuance to the
Instructions of the Customer or as deemed necessary by the Company.
5.2
The
Company is authorized (but is not obliged) to depart or deviate from the
Customer's Instructions in any respect if in the opinion of the Company such
departure or deviation is necessary or desirable in the Customer's interests.
The Company shall in any time comply with the instruction or orders of the
governmental departments and the Company¡¯s responsibility for the Goods shall
cease at the time of delivery or otherwise handling of the goods as per the
above instructions and orders.¡¡
5.3
The
Company is authorized by the Customer to act and the Company is not required,
unless specifically requested by the Customer in writing, to inform the
Customer of details of acts taken by the Company.
5.4
At
any time when the Company deems that impediment, risks, delay or disadvantage
is or likely to be affecting its performance of the obligations and the Company
does not have reasonable methods to avoid the same, the Company may terminate
the performance of obligations by giving a written notice to the Customer. The
Company may hand over all or part of the goods to the Customer for control at
any place the Company deems convenient and the Company¡¯s responsibility for the
Goods shall cease till then. The Customer shall, upon request, pay the expenses
additionally incurred by the Company for carrying, delivering and storing the
goods at the above place and other relevant expenses.¡¡
5.5
If
delivery of the goods or any part thereof is not taken by the Customer at the
time and place notified by the Company, the Company shall be entitled to store
the goods or any part thereof at the sole risk of the Customer, whereupon any
liability which the Company may have in respect of the goods or that part
thereof stored as aforesaid shall wholly cease.
5.6
The
Company is entitled (but not obliged) to sell or dispose of all or part of the
Goods at the sole risk and expense of the Customer under any of the following
circumstances:
(1) The Company has given a written 21-day notice to
the Customer when the Company at its sole discretion deems that all the Goods
can not be delivered as instructed;
(2) The Goods have perished or deteriorated 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 other persons or properties.
5.7
The
Company shall not be under any liability for the date of arrival or departure
of the Goods, except and unless under special arrangement previously made in
writing.
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£¨¢ò£©Where the Company contracts on
behalf of the Customer
5.8
Where
the Company acts as agent, the Company is entitled to enter into a contract on
behalf of the Customer in the name of the Customer or in its own name with any
third party. The contract thus concluded shall have direct binding effect on
the Customer and the third party.
5.9
Where
the Company acts as agent, the Company shall not be liable for the loss of the
Customer unless and except to the extent that the loss is caused by the
negligence of the Company.
5.10
Where
the Company acts as agent, the Company shall not be liable for the loss caused
by the acts or omissions of the third party including but not limited to the
carriers, warehousemen, stevedores, railway bureau and truckmen, unless the
Company has not acted diligently in selecting, instructing and supervising the
third party.
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£¨¢ó£©Where the Company contracts as
principal
5.11
The
Company acts as principal when undertaking carriage with its own means of
transport or concluding agreement and issuing transport document in the name of
carrier. The responsibility period of the Company as the multimodal transport
operator with respect to the goods under multimodal transport contract covers
the period from the time of taking the goods in its charge to the time of their
delivery. The responsibility of the Company shall be determined by the
principle of ¡°network liability¡±, subject to the laws and regulations governing
a specific section of the multimodal transport. Where the Customers accepts the
transport document issued by persons other than the Company and fails within a
reasonable time to demand the Company to bear the responsibility as the
principal, the Company shall no longer bear the responsibility as the
principal.
5.12 Where the Company contracts as principal it shall be responsible for the acts and omissions of the third party employed by the Company in undertaking the carriage contract or other services as if such acts and omissions are done by the Company itself.
5.13 The operation of the 5.12 does not preclude the Company from the benefits of the exceptions and liability limitation under the laws and these Conditions.
6.
Special provisions concerning containerized transport
6.1
Where
containers are not stuffed or sealed by the Company, the Company shall not be
liable for the loss of and damage to the content in the containers resulting
from one or more of the following circumstances:
1.
Mode
of stuffing or sealing;
2.
Unfitness
of the goods for containerized transport, unless the Company expressly requires
the goods to be carried in containers;
3.
Un-cargo-worthiness
of the containers unless the containers are supplied by the Company or on its
behalf. Even if the containers are supplied by the Company, if the
un-cargo-worthiness of the containers is the result of the failure of the
Customer to make presentation of the special nature of the goods, the Company
shall not be liable.
6.2
The
Customer shall hold the Company harmless from any circumstance under 6.1 and
shall indemnify the Company for any loss caused.
6.3
Where
the Customer asks the Company to supply containers, the Company is not obliged
to supply containers of special type or quality that fit the Goods, except
express requirement to the contrary has been given to the Company.
7.
Warranties
7.1
The
Customer shall save harmless and indemnify the Company from and against all
claims, liabilities, losses, damages, costs and expenses (including without
limitation all duties, taxes, imposts, levies, deposits, fines and outlays of
whatsoever nature levied by any authority) arising out of the Company acting in
accordance with the Customer's instructions, or arising from a breach of
warranty or obligation by the Customer, or arising from the Customer's inaccurate
or incomplete or ambiguous information or instructions, or arising from the
negligence of the Customer or Owner.
7.2
Advice
and information, in whatever form as may be given by the Company, are provided
by the Company for the Customer only and the Customer shall save harmless and
indemnify the Company from and against all claims, liabilities, losses,
damages, costs and expenses arising out of any other person relying on such
advice or information.
7.3
The
Customer undertakes that any officer, servant, agent or sub-contractor of the
Company shall have the benefit of all exceptions and liability limitations
herein benefiting the Company.
7.4
The
Customer shall defend, indemnify and hold harmless the Company from and against
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.
7.5
The
Customer shall defend, indemnify and hold harmless the Company in respect of
any general average or any claims of a general average nature that may be made
on the Company and the Customer shall provide such security as may be required
by the Company in this connection.
7.6
After
the Company agrees to accept dangerous goods for carriage, if the goods in the
opinion of the Company constitute a risk to other goods, property, life or
health, or by the restriction of some laws, the carriage or discharge of such
goods may cause the arrest of the goods, other property or persons, the Company
may destroy or otherwise deal with the goods without notice, at the risk and
expenses of the Customer or the Owner and without any liability to the Company.
7.7
The
Customer shall be liable for any loss, pollution, contamination, delay,
demurrage, or loss of and damage to the property (including but not limited to
containers) of the Company or others and the ship directly or indirectly caused
by the Customer, Owner and their servants, agents and representative before, in
the course or after the carriage.
8.
Charges
8.1
The
Company is entitled to charge on gross weight or volume weight. Further details
relating to the computation of freight charges will be provided to the Customer
upon request.
8.2
The
Customer shall pay to the Company all sums immediately when due without
deduction or deferment on account of any claim, counterclaim or set-off.
8.3
When
the Company is instructed to collect freight, duties, fees, charges or other
expenses from any person other than the Customer and encounters difficulty in
collecting, the Customer shall unconditionally forthwith pay the same.
8.4
On
all amounts overdue to the Company, the Company shall be entitled to interest
calculated on a daily basis from the date such accounts are overdue until
payment thereof at 0.4¡ë
per day during the period that such amounts are overdue.
8.5
Quotations
are given on the basis of immediate acceptance by the Customer. Notwithstanding
acceptance of the quotations by the Customer, the Company shall be at liberty
to revise quotations or charges in the event of changes of state polices and
market in currency exchange, rates of freight, insurance premiums or any
charges applicable to the goods.
8.6
The
Company or its agents are entitled to have a lien on all the goods and
documents received for monies due from the Customer to the Company. If any such
monies due to the Company are not paid within 28 days after notice has been
given to the Customer that such goods or documents are being detained, or if
such monies are not paid within a reasonable time when the goods detained are
perishable goods, the Company is entitled to dispose of the goods and/or the
documents to satisfy such indebtedness and disposal expenses.
9.
Exceptions of the Company
Except under special arrangements previously made, 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:
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9.1
Acts
of omissions of the Customer or its agents;
9.2
In
pursuance of the Customer¡¯s Instructions;
9.3
Improper
packing or marking;
9.4
Handling,
loading, discharging and stowing of the Goods by the Customer or its
representatives;
9.5
Inherent
defect of the Goods;
9.6
Strike,
commotion, embargo, etc;
9.7
Any
other cause or event which the Company is unable to avoid by the exercise of
due diligence.
10. ¡¡Liability Limitation
10.1
Except
insofar as otherwise provided by law and regulation or other clauses of these
Conditions, the Company¡¯s liability, whether arising from negligence, fault or
other causes, shall not exceed the following, whichever is the least of
(i) the value of the Goods lost, damaged,
misdirected, misdelivered or in respect of which a claim arises, or
(ii) 2 SDR per gross kilogram of the Goods lost,
damaged, misdirected, misdelivered or in respect of which a claim arises.
(Note: SDR refers to a Special Drawing Right. The
SDR shall be as defined by International Monetary Fund and the value of a SDR
shall be calculated as at the date when settlement is agreed or judgement.)
10.2
In
the case of claims for delay in respect of the transportation or delivery, the
Company¡¯s liability shall not exceed the amount of the Company¡¯s freight for
the Goods the delivery of which has been delayed.
10.3
The
actual value of the Goods means the value of the Goods at the time the Company
takes over the Goods plus insurance (if paid) and freight. Deduction shall be
made, at the time of compensation, of the expenses that had been reduced or
avoided as a result of the loss of damage occurred.
10.4
Further
and without prejudice to the generality of the preceding provisions of this
Clause 10, if the Customer declare the value of the Goods at the time the
Company takes over the Goods or by mutual arrangement agreed in writing, the
Customer may claim in excess of the limits set out above, but the Company¡¯s
liability shall in no event exceed the declared value or agreed value.
11. Notice
11.1
Unless
notice of loss or damage is given in writing by the consignee to the Company at
the time of delivery of the Goods to the consignee, such delivery shall be
deemed to be prima facie evidence of the goods carried and delivered in
apparent good order and condition. Where the loss of or damage to the Goods is not
apparent, the notice in writing shall be given within 7 days from the next day
of the delivery of the Goods. In the absence of such written notice, the
delivery shall also be deemed to be prima facie evidence of the goods carried
and delivered in apparent good order and condition.
11.2
Other
claims shall be made within 14 days of the date upon which the Customer became
or should have become aware of the loss or damage. And any claim not made shall
be deemed to be waived except where the Customer can show that it was
impossible for him to comply with the time limit and he has made the claim as
soon as it was reasonable possible for him to do so.
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12. ¡¡Insurance
No insurance will be arranged except upon express
instructions given in writing by the Customer and accepted by the Company. All
insurance arranged by the Company is subject to the usual exceptions and
conditions of the policies of the insurance company or underwriters taking the
risk. The Company shall not be under any obligation to arrange a separate
insurance on each consignment. 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 its
Customer. In so far as the Company agrees to arrange insurance, the Company
acts solely as the agent of the Customer using reasonable effects to arrange
such insurance. The Company does not warrant or undertake any such insurance
will be accepted by the insurance company or underwriters.
13. Time Bar
Unless agreed differently by the Company in writing or
suit is brought in the proper forum as specified under clause 14 of these
Conditions, all the Company¡¯s liabilities shall be relieved within 9 months
from the date the goods was delivered or should have been delivered by the
Company or from the date the consignee was entitled to deem the Goods to have
been lost due to failure of delivery.
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14. Jurisdiction and Law and Dispute
Resolution
14.1
These
Conditions and any claim or dispute arising out of or in connection with the
services of the Company shall be subject to China law and regulation and
exclusive jurisdiction of China courts.
Or
14.2
Any
dispute arising out of or in relation to these Conditions and any dispute
arising from the freight forwarding services provided by the Company shall be
referred to China Maritime Arbitration Commission, Beijing for arbitration in
accordance with its current arbitration rules. The arbitration award shall be
final and binding upon the parties.
(Note: You should choose either clause 14.1 or 14.2 as
your law and jurisdiction clause.¡¡
However, you should not show both of the aforesaid two clauses at the
same time in your Standard Trading Conditions)
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