Shipa Delivery - Terms & Conditions
Interpretation and Definitions
1.1 In these General Terms and Conditions (General Terms) and in any document comprising an Agreement: Affiliate means, with respect to a Party, any person, corporation, or other entity Controlled by, Controlling, or under common Control with a Party;
Agreement means the agreement for the provision of the relevant Services that is created by your: (a)Placing an order for Services via our Application, or (b)written acceptance of any proposal we give you setting out the details of our Services to be supplied to you; or (c)ordering of any Services from us from time to time and in response to which we carry out such Service, including, without limit, by you signing our Waybill, our receipt or collection of a Consignment from you, the terms of which agreement are deemed to incorporate the terms of our proposal, these General Terms, the terms in any Waybill and/or any other special conditions expressly accepted in writing by us or which we notify to you when accepting any order or Consignment, and provided that the agreement will not be otherwise replaced or amended by any contrary terms and conditions written on any order document or waybill issued by you; Application and Applications means the mobile and web applications through which Services can be booked and are rendered;
Consignee or Receiver means the person or entity specified on the address label of the Waybill as your intended recipient of a Consignment;
Consignment or Shipment means any Goods that travel under one Waybill to be delivered to the same Consignee and which may be carried by any means we choose, including air, road or any other carrier;
Control means the power (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) to appoint or remove all or such of the members of the board or other governing body of a person as are able to cast a majority of the votes capable of being cast by the members of that board or body on all, or substantially all, matters, or otherwise to control or have the power to control the policies and affairs of that person;
Dangerous Goods means any Goods classified as hazardous material, dangerous goods, prohibited or restricted articles by IATA (International Air Transport Association), ICAO (International Civil Aviation Organisation), ADR (European Road Transport Regulation on dangerous goods), IMDG (International Maritime Dangerous Goods) code, the United Nations Recommendations on the Transport of Dangerous Goods, or as may be specified from time to time by any applicable government department or other relevant organisation in the Territory;
Delivery Address means the address for delivery of a Consignment as specified on a Waybill;
Fragile Goods means any Goods that are, or include components that are, inherently fragile or breakable, and which require special packaging and/or handling to ensure they are not damaged and which Goods include for example, without limitation, electrical Goods, glass, china, ceramics, pottery, stoneware, fossils, antiques and works of art, or such similar materials or Goods;
Goods means any goods, products, items, documents or parcels;
Non Standard Size means any Consignment or Goods that do not meet our standard dimensions or weight limits set out in our Standard Operating Procedures or that otherwise requires special equipment or labour resources in excess of a single person for loading or unloading into our vehicles;
Party means either you or us and Parties means both of us; Profile means the information used by the User to register an account using our Application and may include, but is not limited to, name, mobile phone number, and email address;
Service or Services means any and all services to be provided to you by us under an Agreement; Standard Operating Procedures or SOP means our operating procedures for the relevant Services as supplemented by the industry accepted standard operating procedures relevant to the Services to the extent our operating procedures may be silent;
Stored Goods means any Goods that are stored in any of our facilities on a temporary basis as part of an existing Consignment or Waybill or otherwise as part of Warehousing Services we have agreed to provide to you; Territory means the territory where Services are rendered;
Unacceptable Goods means Goods that: (a)are Dangerous Goods; (b)have no customs declaration where required by applicable customs regulations; (c)are, or may be: alcohol; counterfeit; animals; bullion; currency; negotiable instruments; currency; stamps; money orders; precious metals or stones; real or imitation firearms, parts thereof; weapons; explosives or ammunition; human remains; pornography; tobacco; or illegal drugs; or are otherwise not permitted by applicable law to be sold or carried within the Territory or any other country in which we provide Services in connection with the
Consignment or Goods; (d)we reasonably decide cannot be stored, handled or carried safely or legally; (e)are poorly or inadequately packaged; or (f)are Fragile Goods without sufficient protective packaging, temperature sensitive or perishable Goods unless we have expressly agreed in writing otherwise to provide Services in respect to such Goods and they are correctly and adequately packaged as required by us; Users shall mean all users of the Services, including but not limited to, Customers, Consignees or Receivers and other third party providers.
Value means, in respect to any Consignment, the lesser of the cost and the market value of such Consignment; Warehousing Services means the provision by us of temporary storage space for your Goods in our facilities, which services may be subject to our additional standard terms and conditions for the supply of such services; Waybill means the label, waybill, consignment note or other similar document produced by our system, either in physical or digital form, for describing the details of a particular Consignment;
We, us, our, SHIPA Delivery means SHIPA Delivery Services L.L.C; and You, your, consignor, merchant, customer means the person or entity who engages us for the provision of certain Services which are the subject of an Agreement.
1.2 References to the Parties include their respective successors in title, permitted assignees, estates and legal personal representatives. 1.3 Headings to sections are used for information only and shall not form part of the operative provisions of, and shall be ignored in construing, these General Terms. 1.4 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa, words denoting any gender shall include all genders (including neuter) and words denoting persons shall include bodies corporate and unincorporated, associations, partnerships and individuals.
Registration and Provision of Services
2.1 Users may be a natural or a legal person. In order to access the Applications, all Users are required to register a profile. When registering, we may ask you for, inter alia, the following information:
(a) Name; (b) Mobile number; (c) Address; (d) Credit Card information; (e) Email address; and (f) Other information about the User that may contribute to the verification process or provision of the Service, including, but not limited to, geographical location information created by the User’s device.
2.2 Information listed in 2.1 is used to establish contact between Users and SHIPA Delivery, to manage the Services, and to take reasonable measures to verify the identity of the Users. SHIPA Delivery is not responsible for ensuring the accuracy or truthfulness of Users’ stated identities, the validity of the information entered on SHIPA Delivery’s website or Applications, nor does it make any kind of warranty in that respect, express or implied.
2.3 The Service is provided “as is” and availability may vary according to the interplay of supply and demand as well as external factors, such as weather conditions.
2.4 Upon the creation of an Agreement, we will provide to you the relevant Services in accordance with the terms of the Agreement and such Services will be provided: (a)only in the Territory; and (b)in accordance with our Standard Operating Procedures from time to time.
2.5 The terms of an Agreement may not be varied by any employee of ours (especially by any courier that collects a Consignment) other than an expressly authorised representative of ours.
3.1 and warrant that if you are not the owner of a Consignment or any Goods, or any part of them, you are the legally authorised agent of the lawful owner(s) of the Consignment and any Goods and are authorised to enter into an Agreement on behalf of the owner(s);
3.2 and warrant that all Consignments and Goods and their packaging is fit and safe to be handled and carried by us;
3.3 and warrant that no Consignment or Goods will exceed any size or weight restrictions which we from time to time specify;
3.4 and warrant that your Consignment does not contain any Unacceptable Goods and that we will have no liability (whether caused wilfully, negligently or otherwise) for any loss, damage, mis-delivery, non-delivery or late delivery of Unacceptable Goods;
3.5 to supply us with any information we reasonably request for the purposes of allowing us to perform our obligations under the Agreement and you warrant that any information you provide to us is accurate, proper and in compliance with all applicable laws;
3.6 and warrant that the Delivery Address information you provide to us will contain sufficient, and accurate, location information to enable us to complete any delivery within the agreed delivery times and windows for a Consignment;
3.7 that we have no obligation to provide any Services in connection with a Consignment or Goods that, or for which we reasonably believe, comprises any Unacceptable Goods;
3.8 we may open any packaging or Consignments in order to inspect the content of a Consignment to ensure it does not contain any Unacceptable Goods;
3.9 that Consignments can only be delivered to physical addresses and cannot be delivered to post office boxes or any non-designated address (other than a digitised government authorised addressing system);
3.10 to indemnify us for any cost, loss, expense, damage incurred by us (including any attorney fees or costs) in connection with your provision to us (or our receipt) of any Unacceptable Goods or for breach of any of the warranties in this clause 3; and
3.11 that our standard transit system is not suitable for carrying Fragile Goods unless we have expressly agreed in writing prior to transit to provide Services in respect to such Goods and they are correctly and adequately packaged to a standard acceptable to us, failing which we have no liability (however caused, including negligently or otherwise) for any loss, damage, mis-delivery, non-delivery or late delivery of Fragile Goods.
Loading and Unloading
4.1 Unless we expressly agree otherwise in writing: (a)if we collect or deliver a Consignment to or from your facility or premises, you will provide appropriate equipment and labour for loading the Consignment; and (b)if a Consignment is of a Non Standard Size and we expressly agree in writing to supply Services in relation to such Consignments, then you agree to pay the relevant additional service charges applicable to the supply of any special equipment and resources necessary for the handling of such Consignments, and until you pay such charges you agree that clause 4.2 applies.
4.2 You agree: (a) that any assistance we provide to assist you to load Consignments will be provided at our sole discretion and is at your sole risk and we will not be liable for any damage caused (whether negligently or otherwise); and (b) we will have no liability (however caused, including negligently or otherwise) for any loss, damage, mis-delivery, non-delivery or late delivery of any Non Standard Size Consignments; and (c) to indemnify us and keep us indemnified against any costs, expenses, liabilities, injuries, losses, damages, claims, demands, proceedings or legal costs and judgments that we suffer as a result of the provision of such assistance.
5.1 In relation to each Consignment you must complete such Waybill and address label (“Address Label”) as we from time to time specify. You must, if and when needed, affix an Address Label to each Consignment.
5.2 Transit begins when we accept a Consignment for delivery. At your request we will sign a document acknowledging receipt of a Consignment. Such document will not, regardless of its terms, be evidence of the condition, nature, quantity or weight of the Consignment when delivered to us.
5.3 Transit ends: (a) when a Consignment is delivered to the Delivery Address (including in accordance with clause 6.1); or (b) 5 days after the Consignee is notified (whether in writing – including SMS – or orally) that we have made an unsuccessful attempt to contact and/or deliver the Consignment and that the Consignment is available for collection from us subject to extensions agreed with you up to a maximum of 7 days.
5.4 Transit may occur using any means of transport and by any route we think fit.
6.1 We will deliver Consignments: (a) Unless explicitly requested by you, to a Delivery Address only after contacting the Consignee for a delivery confirmation, subject to the provisions of our SOP or the terms of the Agreement applicable to such confirmations, or if there is none, a maximum of 3 calls and/or SMS and if unsuccessful after 2 consecutive days of follow up limited to 2 calls and 1 SMS per day, after which if the Consignee remains uncontactable or unavailable we will refer to you for instructions but subject always to clause 5.3; (b) To the Consignee or their authorised recipient. An authorised recipient is someone the Consignee identifies to us as authorised to receive on Consignee’s behalf or a person at the Delivery Address reasonably identified as being so authorised.
6.2 Except to the extent expressly agreed otherwise in an Agreement, you must select and pre-book with us a delivery service option (specifying when the Consignment is to be delivered.
6.3 Subject to clause 22.1, for: (a) On-demand delivery of Consignments they: (i) Are available in certain regions within the Territory and are for delivery within the same region where Consignment originates from; (b) Same Day delivery of Consignments they: (i) Are available in certain regions within the Territory and are for delivery on the same day it is ordered and within the same region where Consignment originates from; (ii) must be booked and confirmed with us before 12pm on the same day of delivery; (iii) must be ready with all documentation for collection by 2pm on the same day of delivery; and (iv) will be subject to a delivery period as specified in our proposal, and if none, will be delivered on the same day on or before 10pm; (c) Next Day delivery of Consignments must be booked and confirmed with us no later than 2pm and be collected (or received at our facility) by 5pm on the day before the required delivery day and will be subject to a delivery period as specified in our proposal, and if none, within 24 hours of collection by us; (i) Friday and public holiday deliveries must be booked and confirmed with us at least 48 hours in advance. (ii) For any unsuccessful attempt to make a delivery on a Friday, you must still pay the Friday delivery fee.
6.4 Subject to the requirements specified under clause 6.3, we will use reasonable endeavours to deliver in accordance with our delivery windows booked by you for a Consignment, however, time is not of the essence for such Consignments and we will not be in breach if a Consignment is not delivered within the delivery window.
6.5 Subject to clause 6.3(c)(ii), for a second failed attempt to deliver a Consignment, you will be charged an additional fee which is applicable for each further failed attempted delivery or an attempt to return the Consignment to you, whether successful or not.
6.6 If you or a Consignee cancels a delivery of a Consignment: (a) before it has been scheduled by us for delivery then we will not apply a delivery charge to that specific order; or (b) after we have scheduled it for delivery, then we will apply the attempted delivery charge to that order in addition to any other applicable fees and charges for that specific order.
6.7 At your request, within 14 days of the date the Consignment is delivered, we will use reasonable endeavours to provide a proof of delivery of the Consignment, provided that this is not a condition of payment. We may at our discretion impose a charge for providing you with a proof of delivery outside this 14 day period.
6.8 Our records will be conclusive evidence that a Consignment has been delivered to a Consignee or returned to you, including in the instance where someone refuses to sign for or accept a Consignment.
If: 7.1 the Consignment is, or is deemed by us as being, Unacceptable Goods; or
7.2 Consignee cannot be reasonably identified or located; or
7.3 Consignee refuses delivery or refuses to pay for the Consignment, then, subject to the terms of the applicable SOP, we will return the Consignment to you at your cost (which in the case of Unacceptable Goods, may include requiring you to collect them from our facility), and if you refuse to accept or are otherwise unable to receive, the Consignment then it may be released, disposed of or sold by us without incurring any liability whatsoever to you or anyone else, and the proceeds will be applied against any Service charges, our related administrative costs; and any remaining balance of the proceeds of a sale will be remitted to you as soon as reasonably possible. Our remittance of such balance proceeds will discharge us from all liability to you in respect of such Consignment and its carriage and storage.
8.1 You must pay us our fees and charges for Services rendered under or in connection with the Agreement upon creating an order, unless otherwise agreed in an Agreement.
8.2 Unless otherwise specified in an Agreement or in our Applications, all our fees and charges are expressed exclusive of any applicable value added taxes or other government or municipal tariffs, which amounts, are chargeable and payable by you in addition to the fees and charges.
8.3 The calculation of our fees and charges for the Services is by reference to the terms and rates in the Agreement and any other relevant rates and methods under our SOPs applicable to the Service.
8.4 We accept payment by Visa or MasterCard debit cards, credit cards, Apple Pay, PayPal, and cash for the Service. Customers will receive confirmation of payment via email to the address registered on their Profile.
8.5 If you do not pay any sum payable to us on its due date, then, without prejudice to any other rights which we may have: (a) we may charge, and you must pay, interest upon such sum from the due date until payment is made in full, both before and after any judgment, at 2 per cent per month; (b) we may recover our costs and expenses of collecting such amount and in this respect you indemnify us for any such costs, which include, without limitation, attorney fees and court costs; (c) we may suspend deliveries of your other Consignments until the outstanding amount has been received by us; (d) any other sums you owe us, regardless of whether we have issued you with an invoice for such sums or whether they are due to be paid in the future, become immediately due and payable; and (e) we may recover those sums plus any other amounts referred to in this clause 8.5 by deducting them from any security you have provided to us or from other monies paid to us by you or a Consignee, including, without limitation, from any amounts we are holding for COD or CardOD payments.
8.6 With respect to any payment under an Agreement, you must ensure that the net amount actually received by us corresponds to the amount invoiced, and in this context any bank wiring fees, credit card fees, taxes or similar costs is your responsibility and is to your account.
8.7 If any of the Services provided to you require additional work or services not expressly set out in an Agreement, then we will provide you with a revised or new proposal setting out the additional pricing for those additional services.
8.8 All payments due from you under or in connection with an Agreement must be made without deduction whether by way of counterclaim, set-off or otherwise unless you have a valid court order requiring an amount equal to the deduction to be paid by us.
8.9 You must notify us of any change in your name, address or other circumstances that may affect the payment of any charges at least 50 days in advance of the date of the change.
8.10 We reserve the right at any time or as a condition precedent to acceptance of any Consignment to require reasonable credit security and assurances from you including, without limitation, a security deposit or check, bank guarantee, unconditional confirmed letters of credit (based on our required form) or other financial security issued by a third party acceptable to us.
8.11 We may make promotional offers with varying features and varying rates to any User at our sole and absolute discretion.
9.1 We refund all charges that are related to potential technical errors in our Application, if the error resulted in the Service not being rendered.
9.2 A refund request that is not related to a technical error in our Application may only take the form of a credit note. A person requesting refunds should reach out to help center, stating the problem and any other relevant information. In your claim, please include an explanation and reasons for a refund and your order information.
9.3 Refunds are issued at the sole discretion of our management within a thirty (30) day period after the date of the order. Refunds will be made through the original mode of payment, with the exception of cash payments, which will be refunded through a bank transfer.
User Representations, Warranties and Agreements
10.1 You can access the Services using the Applications or other specifically authorized means. It is your responsibility to ensure you downloaded the correct Application for your mobile, tablet, or similar device. SHIPA Delivery is not liable if you do not have a compatible device or if you have downloaded the wrong version of the Application.
10.2 By using the Services and the Applications, you expressly represent and warrant that: (a)you are legally entitled and have all the rights, authority and capacity to enter into the Agreement and to fully comply with its provisions; (b) the data you provide for the registration of your account is true, accurate, and complete; (c) you will keep secure and confidential your User account password or any identification we provide you with which grants you access to our Applications and/or Services; (d) you will not represent yourself to be an agent, representative, employee, or affiliate of SHIPA Delivery; (e) you will only use the Services and/or the Applications in accordance with Applicable Laws; (f) you will not authorize other persons to use your SHIPA Delivery account, and you will not assign or otherwise transfer your User account to any other person or entity; (g) you will not in any way copy, reproduce, or distribute any material provided by SHIPA Delivery, including the Applications, Services, texts, graphics, images, music, software, audio, videos (collectively “Content”) without the express written consent of SHIPA Delivery; (h) you will not assist any third party in breaching any of the above; (i) you will inform us of any unauthorized use of your credentials or violation of your confidentiality promptly upon becoming aware thereof.
General Exclusions of Liability
11.1 We will not be liable to you under or in connection with these General Terms, an Agreement or in connection with the provision of the Services, including, without limitation, for any loss, damage, mis-delivery, non-delivery or delayed delivery of any Consignment which occurs as a direct or indirect result of: (a) Your, or your employee’s or agents’: acts; omissions; breach of Agreement; negligence; misstatement or misrepresentation; (b)any inherent liability to wastage, latent or inherent defect, vice or natural deterioration or electrical or magnetic derangement of the Consignment; (c) the Consignment being insufficiently or improperly packaged; or (d) the Consignment being incorrectly or insufficiently addressed or labelled.
11.2 Despite any other provision of the Agreement to the contrary, but subject to clauses 11.3 and 11.4 we (and our Affiliates) are not liable to you or your Affiliates for any special, indirect, consequential, exemplary or incidental damages, loss of profits, loss of opportunity, loss of data, loss of privacy, loss of security, loss of revenues or loss, damages, compensation, penalties or fines arising from any loss of use, howsoever arising under or in connection with the Agreement or the Services and whether or not we contemplated, knew about, should’ve known about or were advised of the possibility of any such consequence, loss, damage, compensation, penalty or fine and whether the liability is based in contract, tort, negligence, equity, indemnity, statute or on any other legal basis.
11.3 Notwithstanding anything to the contrary contained herein, our liability for fraud, or death or personal injury resulting from our negligence, is not limited.
11.4 Despite anything to the contrary contained elsewhere or in the Agreement, we are not under any greater liability to you in respect of any Consignment than you have contractually committed to your customer.
11.5 We are not liable for any loss, mis-delivery, non-delivery or delayed delivery of or damage to a Consignment or otherwise for any failure or delay in performance of our obligations under an Agreement due to any event beyond our reasonable control including, without limitation: (a) delay or cancellation of ferries, flights or railway transport or scheduled trucking; (b) failure by a Consignee to accept or otherwise be available for accepting delivery of a Consignment; (c) delays in or refusal of customs clearance; (d) act of God, war, riot, civil commotion, malicious damage or blockades, strikes, lockouts or other industrial disputes (whether involving our workforce or that of a third party) compliance with any law or governmental order, rule, regulation or direction seizure under legal process, national emergencies, fire, flood, tempest or storm, accident, breakdown of plant or machinery default of supplies (including, without limitation fuel) or sub-contractors.
12.1 We will not be liable (whether in negligence or otherwise) for loss or damage under or in connection with these General Terms or the Agreement or in connection with the provision of the Services, including, without limitation, damage to Consignments or loss, mis-delivery or non-delivery of any Consignment (or any part thereof), unless you notify us (other than upon any delivery document): (a) of the same, in respect to delivered Consignments, within: (i) 5 days of the date of delivery if the proof of delivery is signed as having been received in good condition; and (ii) 7 days of the date of delivery (or the due date for delivery if the whole Consignment has been lost or mis-delivered) in all other cases, and make a written claim against us within 21 days of the date of delivery or the due date of delivery (as appropriate); or (b) subject to clause 12.1(a), of your claim in respect to Goods stored during Warehousing Services, within 14 days of the date you become aware, or are notified by us, of the damage.
12.2 Despite anything to the contrary in these General Terms or in an Agreement each Party agrees that: (a)it will not make any claim or bring any legal action under or in connection with these General Terms or an Agreement after 12 months from the date when transit commences; and (b) it waives any right to make any such claim or bring any action; and (c) it must ensure its Affiliates do not bring any such claim or action after that period.
12.3 No claim shall be made on any grounds whatsoever against (i) any of our officers or servants, or (ii) any of our parent, subsidiary or associated companies. which seeks to impose upon him or them any liability in connection with these Genera Terms or an Agreement or the Services undertaken by us.
Extended Liability Option
13.1 Before our relevant Service commences you may request an increase in our liability under clause 14 under the extended cover option (“Extended Cover”). If we agree, Extended Cover is available in units of $250 (each a “unit” of Extended Cover) up to a maximum of 10 units per Consignment subject to the pre-payment of the fee under clause 13.2.
13.2 We do not provide insurance coverage for Consignments and you will not receive an insurance policy if the Extended Cover applies. For any Extended Cover, there is an administration fee of $2.50 per unit of Extended Cover.
14.1 Our sole and maximum liability under or in connection with these General Terms or an Agreement or in connection with the provision of the Services, including, without limitation, arising from or in connection with any delay, loss, damage, mis-delivery or non-delivery of any Consignment whether caused negligently or otherwise, is limited to the lesser of: (a) the Value of the Consignment, or the part of the Consignment as appropriate, which has been lost, mis-delivered or damaged; (b) in the case of damaged Goods within a Consignment, the cost of repairing the damage; and (c) the sum determined by either clause 14.2 or 14.3.
14.2 In respect of any Consignment in relation to which you have not taken out Extended Cover under clause 13, the applicable sum for the purpose of clause 14.1(c) is an amount equal to the lesser of: (a) $20.00 per kilogram of the gross weight of such Consignment or the part of such Consignment which has been lost, mis-delivered or damaged; and (b) $100.00; or
14.3 In respect of any Consignment in relation to which you have taken out Extended Cover, the applicable sum for the purpose of clause 14.1(c) is an amount equal to the total value of the units of Extended Cover purchased for such Consignment.
14.4 If relevant, we will use our reasonable endeavours to find any cheque which forms part of a Consignment and which is actually lost, provided that our liability for such loss will be limited to the lesser of the cost of cancelling and reissuing any such cheque and $2.50
14.5 If during transit a Consignment is carried by water, rail or air, our liability for any loss of or damage to the Consignment during the period of transit by water, rail or air will not exceed the liability of the carrier providing the water, rail or air carriage to us.
14.6 Any Consignment, which has a Value of less than $25.00, is carried at your risk and we will have no liability for any loss, mis-delivery or non-delivery of or damage to such Consignment.
14.7 Shock labels or similar devices designed to show whether a Consignment has been subject to treatment likely to cause damage to it are not accepted as proof of damage caused by us to any Consignment.
14.8 In the event of any loss of, damage to, or mis-delivery of a Consignment, you will be required to prove the value of the Consignment subject to the claim. We will not pay a claim, without reasonable proof of the Consignment’s replacement value or documentation verifying the repair cost of the Consignment.
We have a general and particular lien over all Consignments for all monies owing from you. If any lien is not satisfied within 7 days of us notifying you of its exercise, we may sell the Consignment as your agent. We will tender the sale proceeds to you after deducting all monies owing from you and all expenses and charges incurred in the sale. Having done so we will have no further liability to you for the Consignment.
16.1 If a Consignment is purchased from you by the method of cash-on-delivery (“COD”) then such cash as specified in your invoice will be collected by us upon delivery of the Consignment and is offered as one of our specified Services, which carries an additional fee for that Service as set out in an Agreement.
16.2 The COD Service will be carried out in accordance with our relevant SOP.
16.3 Despite COD being specified we have absolute discretion to offer the Consignee the option to pay for the Consignment by credit or debit card (“CardOD”) using our payment processing method and point of sale tools, in which case you agree and acknowledge that: (a) we will use our own account and payment facility for this payment option and the Consignee will pay the Consignment invoiced price direct to us. You appoint us as your payment collection agent for this purpose; (b) we will deduct our CardOD transaction fees as set out in the Agreement and calculated against the Consignment invoiced amount, and remit the net amounts to you (together with any COD amounts) every Wednesday and otherwise in accordance with our SOP; (c) If a Consignment is returned by the Consignee to you via our return collection Service then we will reverse the CardOD transaction through our payment processing portal provider and this will be charged back to you in the next available COD cycle subject to any additional transaction fees we charge as set out in the Agreement; and (d) We bear no responsibility for any fees, charges or exchange rate differences the Consignee may incur with their bank for using the CardOD option nor do we have any responsibility or liability in connection with any other disputes or claims from the Consignee in connection with such payment option, including in relation to returns and reversal of payments, additional fees, charges or exchange rate differences the Consignee may incur due to such method of payment or reversal; and you will indemnify us for any claims, actions, cost, expense, loss or damages we may incur as a result of any such dispute raised or claim made against us.
16.4 All payments by us to you shall be made after deducting any applicable currency exchange fees, bank transfer fees and similar costs.
Compliance with Laws
You agree that it is your responsibility to ensure, and you also warrant that, all Goods within a Consignment comply with all applicable laws and regulations at all points in the delivery chain, and that all authorizations or licenses necessary for the sale and transit of such Goods have been obtained. In no event will we be held responsible for the consequences of any failure by you to ensure compliance with applicable laws and you indemnify us for all costs (including legal costs), expenses, damages, losses or fines incurred by us arising from or in connection with your breach of this clause.
Sanctions and Export Laws
18.1 You shall be responsible for ensuring compliance with any and all applicable laws, regulations, rules, orders and other requirements relating to export control, economic sanctions, embargoes and sectoral sanctions of the United States, the European Union and its member states, the United Nations, and other governments having jurisdiction (together, “Sanctions and Export Laws”). You represent and warrant that that each and every order you place using our Services is not prohibited, would not subject SHIPA Delivery to sanction, and does not require specific prior government authorization, under any and all Sanctions and Export Laws, or if any prior government authorization is required, you have obtained such authorization and provided us with a copy.
18.2 You indemnify us and hold us harmless from and against any and all claims, demands, actions, suits, proceedings, investigations, judgments, orders, losses, damages, liabilities, fines, penalties, costs, and expenses, including attorney’s fees, suffered or incurred by us and arising out of, resulting from, or related to: (a) any non-declaration or illegal, inaccurate, and/or inadequate declaration by or caused by you, your directors, officers, employees, agents, or representatives; and (b) any actual or alleged violation of any Sanctions and Export Laws (whether intentional or unintentional) by or caused by you, your directors, officers, employees, agents, or representatives.
Suspension and Termination
19.1 In addition to our other rights set out in these General Terms or in an Agreement, we may suspend our performance of or terminate the Agreement by notice to you if: (a) You breach these General Terms and fail to remedy such breach within 7 days from the date of written notice of breach; (b) You breach any of the terms of the Agreement and fail to remedy such breach within 7 days from the date of written notice of breach; (c) You breach any applicable law or regulation; (d) You fail to pay us when due in accordance with the terms of the Agreement and fail to remedy such breach within 7 days from the date of written notice of breach; or (e) you: (i) stop or suspend or threaten to stop or suspend, payment of all or any class of your debts; or (ii) are, or state that you, or are deemed by law to be, unable to pay your debts as and when they fall due; or (iii) take or have properly and validly instituted against you any order, action or proceeding for winding up or dissolution or resolve to wind up or otherwise dissolve the customer entity; or (f) you enter into an arrangement, compromise or composition with or assignment for the benefit of any of your creditors; or (g) you have an administrator, controller, receiver, receiver and manager, liquidator, provisional liquidator or similar officer appointed over any of your assets; or (h) you are an individual, if you die or become bankrupt or make a compromise or composition with or assignment of your property in favour of creditors.
19.2 If we suspend or terminate the Agreement under clause 19.1, payment for all Services provided by us up to the date of such suspension or termination becomes immediately due and payable, despite any credit arrangements or facilities previously granted to you. We may also retain any security given to us or other monies paid to us under COD or CardOD payments and apply it against the assessed amounts outstanding to us as well as toward any other loss or damages incurred by us as a result of the suspension of termination.
19.3 Any action taken by us under this clause 19 does not invalidate the Agreement or prejudice any of our rights, powers and remedies, whether under the Agreement or otherwise.
19.4 Any termination of these General Terms or the Agreement (howsoever occasioned) is without prejudice to any other rights or remedies a party may be entitled to under this Agreement and will not affect any accrued rights or liabilities of either Party.
19.5 We may terminate these General Terms or an Agreement at any time by giving you 50 (thirty) days’ written notice.
20.1 If the Convention on the Contract for the International Carriage of Goods by Road (CMR) applies to the delivery of any Consignment by us then: (a) if any provision of the Agreement conflicts with any provision of the CMR, the provisions of the CMR will take precedence; and (b) our liability for loss of or damage to or late delivery of a Consignment will be governed by and limited in accordance with the CMR.
20.2 If the Warsaw Convention of 1929 (1929 Convention or the Warsaw Convention) as amended at the Hague 1955 (1955 Convention) applies to the delivery of any Consignment by us then: (a) If any provision of the Agreement conflicts with any provision of the 1929 Convention or the 1955 Convention (as appropriate) the provisions of the 1929 Convention or the 1955 Convention (as appropriate) will take precedence; and (b) our liability for loss of or damage to a Consignment or late delivery of a Consignment will be governed by and limited in accordance with the 1929 Convention or the 1955 Convention (as appropriate).
20.3 If a Consignment is being exported you must supply correct and complete documentation required for customs clearance at the commencement of transit.
20.4 You must indemnify us and keep us indemnified against any costs, expenses, liabilities, injuries, losses, damages, claims, demands, proceedings or legal costs and judgments which we suffer as a result of: (a) you failing to provide us with the documentation specified in clause 20.3;and (b) any claims made by any relevant Customs authority in respect of dutiable goods.
21.1 We are not and do not contract as a common carrier. Any Consignment accepted for transit is accepted upon the terms of the Agreement to the exclusion of all others that you attempt to apply, even if they are endorsed upon, delivered with or contained in any document that you deliver to us. Delivery of a Consignment to us by you will be conclusive evidence of your acceptance of these General Terms.
21.2 Any failure by us to enforce or partially enforce any provision of these General Terms or the Agreement will not amount to a waiver of our rights.
21.3 The Agreement is personal to you and you may not assign, licence or sub-contract any or all of your rights or obligations under them without our prior written consent. For the avoidance of doubt, we may assign or novate the Agreement to our Affiliate without your consent.
21.4 Any provision of these General Terms or the Agreement which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) will, to the extent of the invalidity, voiding, unenforceability or unreasonableness be deemed severable and the other provisions of these General Terms or the Agreement and the remainder of such provision shall not be effected.
21.5 All communications between the Parties must be in writing and delivered by hand, pre-paid first class or fax, if to us, to our registered office and if to you, to the address specified on the account application form, or in either case, to such other address as notified by either Party to the other.
21.6 Communications will be deemed to be received: (a) if sent be pre-paid first class post, two days (excluding Fridays, Saturdays and Bank or public holidays) after posting (excluding the day of posting); (b) if delivered by hand, on the day of delivery; (c) if sent by fax before 4pm on a day other than a Friday, Saturday or a Bank or public holiday, at the time of transmission or otherwise on the next day which is not a Friday, Saturday or a bank or public holiday.
21.7 The formation, construction, performance, validity and all aspects of these General Terms and/or the Agreement and its interpretation is governed by the law of the Dubai International Financial Centre (DIFC) without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the DIFC.
21.8 If any dispute or difference occurs between the Parties arising out of or in connection with these General Terms or the Agreement (Dispute), either Party may give written notice of that Dispute to the other Party, giving details of the subject matter of the Dispute (Notice of Dispute) and the following procedures apply to any Dispute under these General Terms or the Agreement: (a) As a pre-condition to any other form of legal proceedings, the Dispute must be submitted for negotiation by the respective Chief Executive Officers of the Parties or their respective nominees; (b) If within twenty-one (21) days of the giving of the Notice of Dispute, the Dispute has not been resolved pursuant to clause 21.8(a), the Dispute may be referred by either Party to the DIFC Courts. (c) subject to these General Terms, a reference of a Dispute to court under this clause does not relieve either Party of any other obligations hereunder.
21.9 To the extent not prohibited by mandatory applicable law the Parties agree to exclude the operation of any legislation that permits a third party to bring claims against a Party in connection with these General Terms or the Agreement without that third party being an actual party to these General Terms or the Agreement. 21.10 By entering into these General Terms, the Parties do not intend to create any relationship of employment, partnership, or joint venture, and at no time must we position ourselves as affiliated with the Customer in any way other than as an independent contractor for the provision of Services as described herein.
21.11 Despite any provision in an Agreement or these General Terms to the contrary, we may, in our absolute discretion, from time to time vary or amend these General Terms by publishing an updated version of the General Terms on our website which is effective on that date of publication. The last updated version of the General Terms will be deemed incorporated into any Agreement with you from the date of its publication. You are responsible for checking the website for such amendments to these General Terms and will be deemed to have accepted, and be bound by, them upon your use or ordering of any Services.
22.1 You consent to and understand that, for all account applications, a credit search may take place using a credit reference agency and that this information may also be shared with our other Affiliate companies if needed for the provision of the Services.