DEFINITIONS AND APPLICATION
1. In these Conditions:-
"Company" Is NISKO U.K. trading under these Conditions.
"Person" Includes persons or any Body or Bodies Corporate.
"The Owner" Means the Owner of the goods (including any
packaging, container equipment) to which any business concluded
under these Conditions relates and any other person who is or
may become interested in them.
"Customer" Means any person at whose request or on whose behalf
the Company undertakes any business or provides advice,
information or services.
2. (A) Subject to Sub-Paragraph (B) below, all and any
activities of the Company in the course of business whether
gratuitous or not are undertaken subject to these
Conditions.
(B) If any legislation is compulsorily applicable to any
business undertaken, these Conditions shall, as regards such
business, be read as subject to such legislation and nothing in
these conditions shall be construed as a surrender by the
Company of any of its rights or immunities or as an increase of
any of its responsibilities or liabilities under such
legislation and if any part of the Conditions be repugnant to
such legislation to any extent such part shall as regards such
business be overridden to that extent and no further.
3. The Customer warrants that he is either the Owner or the
authorised Agent of the Owner and also that he is accepting
these Conditions not only for himself but also as Agent for and
on behalf of the Owner.
4. In authorising the Customer to enter into any Contract with
the Company and/or in accepting any document issued by the
Company in connection with such Contract, the Owner and
Consignee accept these Conditions for themselves and their
Agents for any parties on whose behalf they or their Agents may
act, and in particular, but without prejudice to the generality
of the Clause, they accept that the Company shall have the right
to enforce against them jointly and severally any liability of
the Customer under these Conditions or to recover from them any
sums to be paid by the Customer which upon proper demand have
not been paid.
THE COMPANY
5. (A) Subject to Clauses 13 and 14 below, the Company shall be
entitled to procure any or all of its services as an Agent or to
provide those services as a Principal.
(B) The offer and acceptance of an inclusive price for the
accomplishment of any service or services shall not itself
determine whether any such service is or services are to be
arranged by the Company acting as Agent or to be provided by the
Company acting as a Contracting Principal.
(C) When acting as an Agent the Company does not make or purport
to make any Contract with the Customer for the carriage,
storage, packing or handling of any goods nor for any other
physical service in relation to them and acts solely on behalf
of the Customer in securing services by establishing Contracts
with Third Parties so that direct contractual relationships are
established between the Customer and such Third Parties.
(D) The Company shall on demand by the Customer provide evidence
of any Contract entered into as Agent for the Customer. Insofar
as the Company may be in default of this obligation, it shall be
deemed to have contracted with the Customer as a Principal for
the performance of the Customer's instructions.
6. When and to the extent that the Company has contracted as
Principal for the performance of any of its services, it
undertakes to perform and/or in its own name to procure the
performance of those services, and subject always to the
totality of these Conditions and in particular to Clauses 26-29
hereof accepts liability for loss or damage to goods taken into
its charge occurring between the time when it takes the goods
into its charge and the time when the Company is entitle to call
upon the Customer, Consignee or Owner to take delivery of the
goods.
7. When and to the extent that the Company in accordance with
these Conditions is acting as an Agent on behalf of the
Customer, the Company shall be entitled and the Customer hereby
expressly authorises the Company to enter into Contracts on
behalf of the Customer:-
(A) for the carriage of goods by any route or means or person;
(B) for the storage, packing, trans-shipment, loading, unloading
or handling of the goods by any person at any place and for any
length of time;
(C) for the carriage or storage of goods in or on transport
units as defined in Clause 19 and with other goods of whatever
nature; and
(D) to do such acts as may in the opinion of the Company be
reasonably necessary in the performance of its obligations in
the interest of the Customer.
8. The Company reserves to itself a reasonable liberty as to the
means, route and procedure to be followed in the handling,
storage and transportation of goods.
9. The Company shall be entitled to perform any of its
obligations herein by itself or by its parent, subsidiary or
associated Companies. In the absence of agreement to the
contrary any Contract to which these Conditions apply is made by
the Company on its own behalf and also as Agent for and on
behalf of any such parent, subsidiary or associated Company, and
any such Company shall be entitled to the benefit of these
Conditions.
10. (A) Subject to Sub-Clause (B) hereof, the Company shall have
a general lien on all goods and documents relating to goods in
its possessions, custody or control for all sums due at any time
from the Customer or Owner, and shall be entitled to sell or
dispose of such goods or documents as Agent for and at the
expense of the Customer and apply the proceeds in or towards the
payment of such sums on 28 days notice in writing to the
Customer. Upon accounting to the Customer for any balance
remaining after payment of any sum due to the Company and the
costs of sale or disposal the Company shall be discharged of any
liability whatsoever in respect of the goods or documents.
(B) When the goods are liable to perish or deteriorate, the
Company's right to sell or dispose of the goods shall arise
immediately upon any sum becoming due to the Company subject
only to the Company taking reasonable steps to bring to the
Customer's attention its intention of selling or disposing of
the goods before doing so.
11. The Company shall be entitled to retain and by paid all
brokerages, commissions, allowances and other remunerations
customarily retained by or paid to Freight Forwarders.
12. (A) If delivery of the goods or any part thereof is not
taken by the Customer, Consignee or Owner, at the time and place
when and where the Company is entitled to call upon such person
to take delivery thereof, the Company shall be entitled to store
the goods or any part thereof at the sole risk of the Customer,
whereupon the liability of the Company in respect of the goods
or that part thereof stores as aforesaid shall wholly cease and
the cost of such storage if pad for or payable by the Company or
any Agent of or Sub-Contractor of the Company shall forthwith
upon demand be paid by the Customer to the Company.
(B) The Company shall be entitled at the expense of the Customer
to dispose of (by sale or otherwise as may be reasonable in all
the circumstance);-
(i) on 28 days notice in writing to the Customer, or where the
Customer cannot be traced and reasonable efforts have been made
to contact any parties who may reasonably be supposed by the
Company to have interest in the goods, any goods which have been
held by the Company for 90 days and which cannot be delivered as
instructed; and
(ii) without prior notice, goods which have perished,
deteriorated or altered or are in immediate prospect of doing so
in a manner which has caused or may reasonably be expected to
cause loss or damage to Third Parties or to contravene any
applicable laws or regulations.
13. (A) No Insurance will be effected except upon express
instructions given in writing by the Customer and all Insurance
effected by the Company are subject to the usual exceptions and
conditions of the Policies of the Insurance Company or
Underwriters take the risk. Unless otherwise agreed in writing
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 held by the Company.
(B) Insofar as the Company agrees to arrange Insurance, the
Company acts solely as Agent for the Customer using its best
endeavours to arrange such Insurance and does so subject to the
limits of liability contained in Clause 29 hereof.
14. (A) Except under special arrangements previously made in
writing or under the terms of a printed document signed by the
Company, any instructions relating to the delivery or release of
goods in specified circumstances only, such as (but without
prejudice to the generality of this Clause) against payment or
against surrender of a particular document, are accepted by the
Company only as Agents for the Customer where Third Parties are
engaged to effect compliance with the instructions.
(B) The Company shall not be under any liability in respect of
such arrangements as are referred to under Sub-Clause (A) hereof
save where such arrangements are made in writing.
(C) In any event, the Company's liability in respect of the
performance or arranging the performance of such instructions
shall not exceed that provided for in these Conditions in
respect of loss or damage to goods.
15. Advice and information, in whatever form it may be give is
provided by the Company for the Customer only and the Customer
shall indemnify the Company against any liability, claims, loss,
damage, costs or expenses arising out of any other persons
relying upon such advice or information.. Except under special
arrangements previously made in writing, advice and information
which is not related to specific instructions accepted by the
Company is provided gratuitously and without liability.
16. (A) Except under special arrangement previously made in
writing in the Company will not accept or deal with bullion,
coin, precious stones, jewellery, valuables, antiques, pictures,
human remains, 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 the
Company shall be under no liability whatsoever for or in
connection with such goods howsoever arising.
(B) The Company may at any time waive it rights and exemptions
from liability under Sub-Clause (A) above in respect of any one
or more of the categories of goods mentioned herein or of any
part of any category. If such waiver is not in writing, the onus
of proving such waiver shall be on the Customer.
17. Except following instructions previously received in writing
and accepted by the Company, the Company will not accept or deal
with goods of a dangerous or damaging nature, nor with goods
likely to harbour or encourage vermin or other pests, nor with
goods liable to taint or affect other goods. If such goods are
accepted pursuant to a special arrangement and then in the
opinion of the Company they constitute a risk to other goods,
property, life or health, the Company shall where reasonably
practicable contact the Customer, but reserves the right at the
expense of the Customer to remove or otherwise deal with the
goods.
18. Where there is a choice of rates according to the extent or
degree of liability assumed by carriers, warehousemen or others,
no declaration of value where optional will be made except under
special arrangements previously made in writing.
THE CUSTOMER
19. The Customer warrants:
(A) that the description and particulars of any goods furnished
by or on behalf of the Customer are full and accurate.
(B) that all goods have been properly and sufficiently prepared,
packed, stowed, labelled and/or marked, and that the
preparations, packing, stowage, labelling and marking are
appropriate to any operations or transactions affecting the
goods and the characteristics of the goods.
(C) that where the Company receives the goods from the Customer
already stowed in or on a container, trailer, tanker, or any
other device specifically constructed for the carriage of goods
by land, sea or air (each hereafter individually referred to as
"the transport unit"), the transport unit is in goods condition,
and is suitable for the carriage to the intended destination of
the goods loaded therein or thereon.
20. Should the Customer otherwise than under special
arrangements previously made in writing as set out in Clause 17
above deliver to the Company or cause the Company to deal with
or handle goods of a dangerous or damaging nature, or goods like
to harbour or encourage vermin or other pest, or goods liable to
taint or affect other goods, he shall be liable for all loss or
damage arising in connection with such goods and shall indemnify
the Company against all penalties, claims, damages, costs and
expenses whatsoever arising in connection therewith, and the
goods may be dealt with in such manner as the Company or any
other person in whose custody they may be at any relevant time
shall think fit.
21. The Customer undertakes that no claim shall be made against
any Director, Servant, or Employee of the Company which imposes
or attempts to impose upon them any liability in connection with
any services which are the subject of these Conditions and if
any such claim should nevertheless be made, to indemnify the
Company against all consequences thereof.
22. The Customer shall save harmless and keep the Company
indemnified from and against;-
(A) All liability, loss, damage, costs and expense whatsoever
(including without prejudice to the generality of the foregoing,
all duties, taxes, imposts, levies, deposits and outlays of
whatsoever nature levied by any authority in relation to the
goods) arising out of the Company acting in accordance with the
Customer's instructions or arising from any breach by the
Customer of any Warranty contained in these Conditions or from
the negligence of the Customer, and
(B) Without derogation from Sub-Clause (A) above, any liability
assumed or incurred by the Company when by reason of carrying
out the Customer's instructions the Company has reasonably
become liable or may become liable to any other party, and
(C) All claims, costs and demands whatsoever and by whomsoever
made or preferred in excess of the liability of the Company
under the terms of these Conditions regardless whether such
claims, costs and demands arise from or in connection with the
negligence or breach of duty of the Company its Servants,
Sub-Contractors or Agents, and
(D) Any claims of a General Average nature which may be made on
the Company.
23. (A) The Customer shall pay to the Company in cash or as
otherwise agreed all sums immediately when due without reduction
or deferment on account of any claim, counterclaim or set-off.
(B) In respect of all sums which are overdue the Customer shall
be liable to pay to the Company interest calculated at 4% above
the Base Rate for the time being of Lloyds Bank Plc.
24. Despite the acceptance by the Company of instructions to
collect freight, duties, charges or other expenses from the
Consignee or any other person the Customer shall remain
responsible for such freight, duties, charges or expenses on
receipt of evidence of proper demand and in the absence of
evidence of payment (for whatever reason) by such Consignee or
other person when due.
25. Where liability for General Average arises in connection
with the goods, the Customer shall promptly provide security to
the Company or to any other party designated by the Company in a
form acceptable to the Company.
LIABILITY AND LIMITATION
26. The Company shall perform its duties with a reasonable
degree of care, diligence, skill and judgement.
27. The Company shall be relieved of liability for any loss or
damage if and to the extent that such loss or damage is caused
by:-
(A) strike, lock-out, stoppage or restraint of labour, the
consequences of which the Company is unable to avoid by the
exercise of reasonable diligence.
28. Except under special arrangements previously made in writing
the Company accepts no responsibility for departure or arrival
dates of goods.
29. (A) Subject to Clause 2(B) above and Sub-Clause (D) below
the Company's liability howsoever arising and notwithstanding
that the cause of loss or damage be unexplained shall not exceed
(i) in the case of claims for loss or damage to goods.
(a) the value of any goods lost or damaged, or
(b) a sum at the rate £800.00 per 1000 Kg of gross weight of any
goods lost or damaged whichever shall be the least
(ii) in the case of all other claims
(a) the value of the goods the subject of the relevant
transaction between the Company and its Customer, or
(b) a sum at the rate of £800.00 per 1000 Kg of the gross weight
of the goods the subject of the said transaction, or
(c) £15000.00 in respect of any one transaction
whichever shall be the least.
For the purposes of Clause 29(A) the value of the goods shall be
their value when they were or should have been shipped. The
value of SDR's shall be calculated as at the date when the claim
is received by the Company in writing.
(B) Subject to Clause 2(B) above, and Sub-Clause (D) below, the
Company's liability for loss or damage as a result of failure to
deliver or arrange delivery of goods in a reasonable time or
(where there is a special arrangement under Clause 29) to adhere
to agreed departure or arrival dates shall not in any
circumstances whatever exceed a sum equal to twice the amount of
the Company's charges in respect of the relevant transaction.
(C) Save in respect of such loss or damage as is refereed to at
Sub-Clause (B) and subject to Clause 2(B) above and Sub-Clause
(D) below, the Company shall not in any circumstance whatsoever
be liable for indirect or consequential loss such as (but not
limited to) loss of profits, loss of market or the consequences
of delay or deviation however caused.
(D) By special arrangement agreed in writing, the Company may
accept liability in excess of the limits set out in Sub-Clauses
(A) to (C) above upon the Customer agreeing to pay the Company's
additional charges for accepting such increased liability.
Details of the Company's additional charges will be provided
upon request.
(E) Where the Company acts as release agent for the overseas
issuer of a Bill of Lading the Company shall not be liable for
any claims made under the terms of the Bill of Lading. Such
claims shall be directly submitted by the Customer to the issuer
of the Bill of Lading. Unless the Bill of Lading has been so
endorsed, the Company has no authority to vary the terms or time
limits specified on the Bill of Lading or to accept liability on
behalf of the issuer.
30. (A) Any claim by the Customer against the Company arising in
respect of any service provided for the Customer or which the
Company has undertaken to provide shall be made in writing and
notified to the Company within 14 days of the date upon which
the Customer became or should have become aware of any event or
occurrence alleged to give rise to such claim and any claim not
made and notified as aforesaid shall be deemed to be waived and
absolutely barred except where the Customer can show that it was
impossible for him to comply with this Time Limit and that he
has made the claim as soon as it was reasonably possible for him
to do so.
(B) Notwithstanding the provisions of Sub-Paragraph (A) above
the Company shall in any event be discharged of all liability
whatsoever howsoever arising in respect of any service provided
for the Customer or which the Company has undertaken to provide
unless suit be brought and written notice thereof given to the
Company within nine months from the date of the event or
occurrence alleged to give rise to cause of action against the
Company.
JURISDICTION AND LAW
31. These Conditions and any act or contract to which they apply
shall be governed by English Law and any dispute arising out of
any act or contract to which these Conditions apply shall be
subject to the exclusive jurisdiction of the English Courts.
