Terms and 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.
1.2References to the Parties include their respective successors in title, permitted assignees, estates and legal personal representatives.
1.3Headings 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.
1.4Unless 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
2.1Users 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:
(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.
2.2Information 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.
2.3The 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.
2.4Upon 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.
2.5The 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.
3.1and 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);
3.2and warrant that all Consignments and Goods and their packaging is fit and safe to be handled and carried by us;
3.3and warrant that no Consignment or Goods will exceed any size or weight restrictions which we from time to time specify;
3.4and 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;
3.5to 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;
3.6and 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;
3.7that 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;
3.8we may open any packaging or Consignments in order to inspect the content of a Consignment to ensure it does not contain any Unacceptable Goods;
3.9that 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);
3.10to 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
3.11that 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
4.1Unless 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.
(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.
5.1In 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.
5.2Transit 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.
(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.
5.4Transit may occur using any means of transport and by any route we think fit.
6.1We 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.
6.2Except 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.
6.3Subject 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.
6.4Subject 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.
6.5Subject 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.
6.6If 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.
6.7At 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.
6.8Our 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.
7.1the Consignment is, or is deemed by us as being, Unacceptable Goods; or
7.2Consignee cannot be reasonably identified or located; or
7.3Consignee 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.
8.1You 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.
8.2Unless 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.
8.3The 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.
8.4We 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.
8.5If 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.
8.6With 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.
8.7If 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.
8.8All 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.
8.9You 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.
8.10We 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.
8.11We may make promotional offers with varying features and varying rates to any User at our sole and absolute discretion.
9.1We refund all charges that are related to potential technical errors in our Application, if the error resulted in the Service not being rendered.
9.2A 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 email us at email@example.com, stating the problem and any other relevant information. In your claim, please include an explanation and reasons for a refund and your order information.
9.3Refunds 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
10.1You 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.
10.2By 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
11.1We 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.
11.2Despite 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.
11.3Notwithstanding anything to the contrary contained herein, our liability for fraud, or death or personal injury resulting from our negligence, is not limited.
11.4Despite 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.
11.5We 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.
12.1We 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.
12.2Despite 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.
12.3No 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
13.1Before 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.
13.2We 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.
14.1Our 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.
14.2In 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
14.3In 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.
14.4If 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
14.5If 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.
14.6Any 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.
14.7Shock 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.
14.8In 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.
16.1If 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.
16.2The COD Service will be carried out in accordance with our relevant SOP.
16.3Despite 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.
16.4All 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
18.1You 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.
18.2You 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
19.1In 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
(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.
19.2If 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.
19.3Any 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.
19.4Any 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.
19.5We may terminate these General Terms or an Agreement at any time by giving you 50 (thirty) days’ written notice.
20.1If 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.
20.2If 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).
20.3If a Consignment is being exported you must supply correct and complete documentation required for customs clearance at the commencement of transit.
20.4You 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.
21.1We 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.
21.2Any 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.
21.3The 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.
21.4Any 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.
21.5All 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.
21.6Communications 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.
21.7The 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.
21.8If 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.
21.9To 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.
21.10By 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.
21.11Despite 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.
22.1You 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.
1. “Company” means, in these General Trading Conditions (“Conditions”), Agility GIL Services AG (a company registered in Switzerland) or any of its worldwide affiliates that provides services to the customer.
2. All and any business undertaken, including any advice, information or service provided whether gratuitously or not by the Company shown on the face of this document is transacted subject to the Conditions hereinafter set out. All other terms and conditions, including any trading conditions of the customer or the use of the customer’s own forms, are hereby excluded. Where international conventions or any legislation applies mandatorily to the services being provided, the provisions of such conventions and law shall apply to the services and prevail over these Conditions only to the extent that they are mandatorily applicable In such circumstances, the Company shall be entitled to all the rights, immunities, exceptions and limitations conferred on the carrier by such legislation, and if any of these Conditions are repugnant to any such legislation, the same shall be void to the extent of such repugnancy but no further. In the event any clause(s) and/or portions(s) hereof is found to be invalid and/or unenforceable, then in such event the provision shall be interpreted and/or reformed to provide for the interpretation most favourable to the Company; and shall be deemed to expressly refer to the minimum allowable limitation of liability; time for suit provision; or notice requirement, as if the provision were so originally and expressly drafted.
3. The Company may act either as an agent or a principal contractor. The Company acts as a principal contractor where (i) the Company has held itself out to be the operator of a regular line or service over the route, or part of the route, on which the goods are to be carried, and has accepted instructions for the carriage of the goods by that line or service, or (ii) when it has issued a transport document in its own name as a carrier or (iii) when it is acting solely as a warehouse keeper. In such circumstances the Company is not a common carrier and transacts business only on the basis of these Conditions only. In all other cases, the Company is deemed to be acting as an agent only on behalf of the customer and the special provisions at Section II of these Conditions shall apply. Where multiple services are provided by the Company under these Conditions, the Company only contracts as principal contractor for the part(s) of the services which fall within (i)-(iii) above, and shall in all other cases act as agent only.
4. When the Company acts as an agent on behalf of the customer, 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, but acts as agent only on behalf of the customer in procuring services from third parties, so that direct contractual relationships are established between the customer and such third parties.
5. No quotation shall be binding until such quotation has been accepted by the customer in writing. Prior to such acceptance, the Company shall be at liberty to revise or withdraw quotations. After such acceptance, the Company can only revise its quotations or charges in the event of changes outside the Company’s control occurring in relation to currency exchange rates, third party freight rates, insurance premiums or any third party charges applicable to the goods.
6. The customer warrants that the description and particulars of any consignments furnished by or on behalf of the customer are accurate. All instructions and descriptions must be given to the Company in good time in writing either by letter, facsimile, telex, e-mail or otherwise by online means. No responsibility whatsoever is accepted by the Company in respect of instructions or descriptions issued verbally until such time as they are confirmed in writing.
7. Except where the Company is instructed in writing to pack the goods, the customer warrants that all goods have been properly and sufficiently packed and/or prepared for transit. The Company accepts no liability for loss of or damage to goods caused by insufficient or inadequate packing or preparation for transit.
8. No insurance will be effected except upon express instructions given in writing by the customer. Where customer expressly instructs the Company to procure insurance, the customer acknowledges that: (i) the Company does not arrange insurance on a brokerage basis, (ii) such insurance will be subject to customary conditions and exclusions of the policies of the insurance Company or underwriters taking the risk; (iii) the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy; (iv) notwithstanding that the premium on the policy may not be the same as that charged by the Company to the customer, the Company shall in no circumstances incur liability as insurer or insurance broker and, if for any reason the insurers dispute liability, the customer shall have recourse against the insurers only, however, this provision shall not detract from the rights of the customer against the Company in respect of any negligence on the part of the Company in effecting insurance, which shall be subject to these Conditions.
9. Except under special arrangements previously agreed in writing, the Company will not accept or deal with (i) any noxious, dangerous, hazardous or inflammable or explosive goods or any goods likely to cause damage; or (ii) bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants. Should any customer nevertheless deliver any such goods to the Company or cause the Company to handle or deal with any such goods otherwise than under special arrangements previously made in writing, he shall be solely liable for all loss or damage whatsoever caused by or to or in connection with the goods however arising and shall indemnify the Company in full against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith.
10. Where the customer delivers dangerous goods to the Company or causes the Company to handle or deal with any such goods whether under special arrangements referred in the preceding section or not, the Company reserves the right to abandon, destroy or otherwise dispose of such goods without notice in the event that the Company, at its sole discretion, considers such goods to present or risk presenting a risk to other goods, property, life or health (although the Company will, where reasonably practicable, contact the customer). Any responsibility of the Company in respect of such goods shall cease upon the aforementioned disposal of the goods, and the Company shall still be entitled to its remuneration for the services performed.
11. The customer undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and particular temperature range to be maintained and undertakes to properly set the container in which the goods are to be stuffed. If the above requirements are not complied with the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
12. The Company shall not be obliged to arrange for the goods to be carried, stored or handled separately from the goods of other customers.
13. The Company shall be entitled, at the expense of the customer, to sell or dispose of:
(i) on 21 days’ notice in writing to the customer or without notice where despite reasonable efforts the customer cannot be traced, after the goods have been held by the Company for 90 days, any goods which in the opinion of the Company cannot be delivered either because they are insufficiently or incorrectly addressed or because they have not been collected or accepted by the consignee for any reason; and
(ii) without notice, perishable goods which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked or which in the opinion of the Company would be likely to perish in the course of the carriage, storing or handling.
Without prejudice to the Company’s rights under clause 14 below or generally, where the Company exercises its power of sale and/or disposal under this clause, it shall be entitled to deduct any costs of sale/disposal, together with any storage charges and any other unpaid charges from any proceeds of such sale/disposal prior to accounting to the customer for any balance.
14. Subject always to complying with any requirements of applicable law, the Company shall have a general lien on all goods or documents relating to goods, including bills of lading, sea waybills and/or other transportation documents, for all sums due at any time from the customer or the owner of the goods or any person holding an interest on the goods (“Owner”), and shall be entitled to sell or dispose of such goods or documents at the expense of the customer and apply the proceeds in or towards the payment of such sums on 28 days’ notice in writing to the customer.
15. All sums due to the Company are payable by the customer on demand in advance, unless otherwise agreed by the Company. Payment shall be made without deduction and shall not be withheld or deferred on account of any claim, counterclaim or set–off. The Company shall be entitled to interest on all amounts overdue. The interest will be calculated locally in each country at a rate of 4% above the Bank of England’s base rate.
16. When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the customer remains jointly and severally liable for the same. If they are not paid by such consignee or other person immediately when due, the Company shall have the right to recover any such sums from the customer.
17. Without prejudice to the provisions of Section II, where applicable, the Company shall not be liable to the customer or Owner for loss of or damage to the goods unless the same is due to the negligence of the Company or any subcontractors employed by the Company or its or their own servants. In no case whatsoever shall any liability of the Company, however arising and notwithstanding that the cause of loss or damage be unexplained, exceed (i) the value of the goods, or (ii) a sum at the rate of 2 Special Drawing Rights (SDR) per kilo of gross weight of the affected goods, whichever is the lesser. Without prejudice to any other conditions herein or other defenses which may be open to the Company, in no circumstances whatsoever shall the Company be liable to the customer or Owner for delay or deviation however caused for any sums in excess of twice the Company’s own charges in respect of the relevant transaction.
Without prejudice to the foregoing, in connection with all services performed by the Company, the customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
18. In no circumstances whatsoever shall the Company be liable to the customer or Owner for any loss which is or which amounts to: i) loss of profits; ii) loss of sales, business or market; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss or use or corruption of software, data or information; or (vi) loss of or damage to goodwill, whether such losses be direct or indirect, or for any other indirect or consequential loss, however caused.
19. Any claim by the customer or Owner against the Company shall be made in writing and notified to the Company:
(i) in the case of loss or damage to the goods which is immediately apparent, notification must be given at the time of delivery;
(ii) in the case of other loss or damage to the goods, within 7 days after the end of the transit;
(iii) in the case of delay in delivery or non-delivery, within 14 days of the date when the goods should have been delivered;
(iv) in any other case, within 14 days of the event giving rise to the claim.
Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the customer or Owner can show that it was impossible for him to comply with these time limits in which case any claim shall be barred if not made without delay. Without prejudice to the foregoing, the Company shall in any event be discharged of all liability whatsoever and howsoever arising unless suit be brought and written notice thereof given to the Company within nine months from the date of the event giving rise to the alleged claim.
20. a) The customer is responsible for ensuring that all customer transactions for which the Company provides services on behalf of the customer (“Transactions”) comply 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”).
The customer represents and warrants that it has performed due diligence with regards to every Transaction and that each and every Transaction is not prohibited, would not subject the Company to sanctions, and does not require specific prior government authorization (e.g., export or import license, from the country of origin of the goods or otherwise), under any and all Sanctions and Export Laws, or if any prior government authorization is required, the customer has obtained such authorization and provided a copy to the Company.
b) Without prejudice to the foregoing, the customer acknowledges that the Company is or may be subject to United States laws that impose export restrictions or economic sanctions on, or otherwise prohibit or penalise, dealing with the governments, nationals, Specially Designated Nationals (“SDNs”) and products and services originating from or owned and controlled by certain countries or in which such governments, nationals or SDNs have an interest. These laws include the Export Administration Act of 1979 administered by the U.S. Department of Commerce and the economic sanctions regulations administered by the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) (all such laws, collectively the “US Sanctions Laws”). Customer warrants that, for all Transactions, neither the customer, its vendors nor its customers are (i) located in or under the control of the government of a country subject to U.S. sanctions; or (ii) are on OFAC’s SDN list or the Department of Commerce’s denied persons list. The customer further warrants that the information, software and technology used by the Company’s system will not be transferred, exported or re-exported to a sanctioned country, SDN or denied person or otherwise used in violation of the US Sanctions Laws. The customer is responsible for ensuring that any necessary licenses for its business (including import and export licenses) are obtained from the relevant governmental authority.
21. The customer indemnifies the Company and holds the Company 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 the Company and arising out of, resulting from, or related to: (a) any non-declaration or illegal, inaccurate, and/or inadequate declaration by or caused by the customer or its 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 the customer or its directors, officers, employees, agents, or representatives. For the purposes of this clause 21, “Company” shall be deemed to include all parent, subsidiary and associated companies of the Company.
22. The Company may (without liability) refuse to handle any Transaction if, in the Company’s sole judgment, such Transaction or services provided therefor could be in violation of any Sanctions and Export Laws.
SPECIAL PROVISIONS WHEN THE COMPANY ACTS AS FORWARDING AGENT
23. Conditions 24 to 27 below apply where and to the extent that the Company in accordance with Conditions 3 and 4 acts as agent on behalf of the customer.
24. The Company shall act with reasonable care in procuring contracts in accordance with the customer’s instructions. Notwithstanding this, the Company shall be entitled to enter into contracts.
(i) for the carriage of goods by any route or by any means;
(ii) for the storage, packing or handling of the goods by any persons at any place or places and for any length of time when such services form part of the carriage of the goods;
and to do such acts as may be necessary or incidental thereto at the reasonable discretion of the Company and to depart from the customer’s instructions in any respect if in the opinion of the Company it is necessary or desirable to do so in the customer’s interests. The customer expressly authorizes the Company to do such acts and enters into such contracts on behalf of the customer so as to bind the customer by such acts and contracts in all respects, notwithstanding any departures from the customer’s instructions as aforesaid.
25. The Company shall be entitled to delegate the performance of any of its obligations as agents to any of its parent, subsidiary or associated companies, or to any other person, firm or Company. The contract between the customer and the Company is made by the Company on its own behalf, and also as agent for and on behalf of such parent, subsidiary or associated Company, and such Company shall be entitled to the benefit of these Conditions. The customer will not seek to impose upon such Company a liability greater than or additional to that accepted by the Company under these Conditions.
26. The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remuneration customarily retained by or paid to forwarding agents.
27. The Company shall not be liable to the customer or Owner for loss or damage arising from any non-compliance with the customer’s or Owner’s instructions or for any failure to perform whether wholly or in part their obligations (whether such obligations arise in contract or otherwise) unless the same is due to the negligence of the Company or its own servants.
JURISDICTION AND APPLICABLE LAW
28. These conditions, and any act or contract to which they apply, shall be governed by the law of the country of incorporation of the Company entering into such a contract. Any dispute arising out of any such act or contract shall be within the local jurisdiction of the courts of the country of incorporation of the Company.