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1. Definitions
"the Carrier" means Rapid Despatch logistics Ltd of 424 Portswood Road, Southampton, Hants, SO17
3SD (or such
other address as it may notify the Customer from time to
time) which expression shall, unless the context
requires otherwise, include any sub-con-tractor
appointed by the Carrier pursuant to Clause 3 below.
"the Customer" means the person or company who contracts for the services of the Carrier, including any
other carrier who gives a Consignment to the Carrier for
carriage. "the Contract" means the contract of carriage
between the Customer and the Carrier, which shall be
made subject to these Terms and Conditions. "the
Consignee" means the person or company to whom the
Carrier contracts to deliver the Consignment. "the
Consignment" means goods in bulk or contained in one
parcel, package, container or envelope, as the case may
be, or any Separate number of parcels, packages,
containers or envelopes sent at one time in one load by
or for the Customer from one Address to one address. For
the avoidance of doubt, the Expression "goods" shall
include papers and documents, other than those expressly
excluded in these Terms and Conditions. "Dangerous
Goods" means dangerous substances as defined in
the Road Traffic (Carriage of Dangerous Substances in
Packages etc.) Regulations 1992 (and any amendment or
replacement thereof), explosives, radioactive substances
and any other substance presenting a similar hazard.
2. General
The Carrier is not a common carrier and
accepts at its sole discretion Consignments for carriage
only upon that condition and the Terms and Conditions
contained herein. Save as may be agreed in writing by a
Director / a Partner / the Proprietor (as the case may
be) of the Carrier, no servant or agent of the Carrier
is permitted to alter or vary these Terms and Conditions
in any way.
3. Authority and Sub-Contracting
3.1 The Customer warrants that he is either the owner of
the goods in any Consignment or is authorised by such
owner to accept these Terms and Conditions on such
owner's behalf. 3.2 The Carrier and any other carrier
employed by the Carrier may employ the services of any
other carrier for the purposes of fulfilling the
contract in whole or in part and the name of every such
other carrier shall be provided to the Customer upon
request.
3.3 The Carrier contracts for itself and (subject to
paragraph
3.4) as agent of and trustee for its servants and agents
and all other carriers referred to in paragraph 3.2
above and such other carriers' servants and agents.
3.4 Notwithstanding paragraph 3.3, the carriage of goods
in any Consignment by rail, sea, inland waterway or air
is arranged by the Carrier as agent of the Customer and
shall be subject to the terms and conditions of the
rail, shipping, inland waterway or air
carrier contracted to carry the Consignment.
4. Dangerous Goods
Dangerous Goods must be disclosed by
the Customer in advance and if the Carrier agrees to
accept them for Carriage they must be classified, packed
and labelled in
accordance with the statutory regulations for the
carriage by road of the substance's) declared. Transport
Emergency Cards ("Tremcards") or information in writing
in the manner required by the relevant statutory
provisions or by the relevant body authorised by statute
to make regulations must be provided by the Customer in
respect of each substance and must accompany the
Consignment.
5. Delivery
5.1 Unless the Carrier has agreed in writing to the
contrary with the Customer:
5.1.1 The Carrier shall not be under any obligation to
provide any plant, power or labour required for loading
or unloading the Consignment, other than that carried by
the vehicle used by the Carrier;
5.1.2 The Customer warrants that any special equipment
required for loading or unloading the Consignment which
is not carried by the Carrier's vehicle will be provided
or procured by the Customer;
5.1.3 The Carrier shall be under no liability whatsoever
to the Customer and the Customer shall indemnify and
hold harmless the Carrier for any damage, however
caused, if the Carrier is instructed to load or unload
any goods requiring special equipment if such equipment
has not been provided or procured by the Customer.
6. Consignment Notes
The Carrier shall, if so required,
sign a document prepared by the Customer acknowledging
receipt of the Consignment but no such document shall be
evidence of the condition or of the correctness of the
declared nature, quantity
or weight of the Consignment at the time it is received
by the Carrier.
7. Transit
7.1 Transit shall commence when the Carrier takes
possession of the Consignment, whether at the point of
collection or at the Carrier's premises.
7.2 Transit shall (unless otherwise previously
determined) end when the Consignment is tendered at the
usual place of delivery at the Consignee's address
PROVIDED THAT:
7.2.1 If no safe and adequate access or, if applicable,
no adequate unloading facilities there exist, then
transit shall be deemed to end at the expiry of one hour
after notice by telephone of the arrival of the
Consignment at the Carrier's premises has been given to
the Customer; or
7.2.2 When for any other reason whatever a Consignment
cannot be delivered or when a Consignment is held by the
Carrier to "await order" or upon any like instructions
and such
instructions are not given or the Consignment is not
called for and removed within a reasonable time
determined by the Carrier, then transit shall be deemed
to end at the expiry of such reasonable time.
8. Undelivered or Unclaimed Goods
8.1 Where the Carrier is unable for any reason to
deliver a Consignment to the Consignee or as he may
order, or when by paragraph 7.2 above transit is deemed
to be at an end, the Carrier may sell the goods
comprising the Consignment. Payment or tender of the
proceeds after deduction of all proper charges and
expenses in relation thereto and of all outstanding
charges in relation to the carriage and storage of the
Consignment shall (without prejudice to any claim or
right which the Customer may have against the Carrier
otherwise arising under these conditions) discharge the
Carrier from all liability in respect of the
Consignment.
8.2 Notwithstanding the generality of paragraph
8.1 above, the Carrier shall use his reasonable
endeavours to obtain a reasonable price for the
Consignment and the Carrier's power of sale shall not be
exercised where the name and address of the Customer or
of the Consignee is known unless the Carrier shall use
its reasonable endeavours to give notice to the Customer
and to the Consignee that the goods will be sold unless
within the time specified in such notice, being a
reasonable time in the
circumstances from the giving of such notice, the goods
are taken away or instructions are given for their
disposal.
9. Carrier's Charges
9.1 The Carrier's charges shall be made in accordance
with its tariff current at the time of performance of
the Contract. Invoices will be prepared by the Carrier
at least once a month. Credit discretion at anytime and
the balance outstanding shall become due immediately on
demand.
9.2 The Carrier's charges shall be payable by the
Customer without prejudice to the Carrier's rights
against the Consignee or any other person. Without
prejudice to the generality of the
foregoing, when goods are consigned "carriage forward",
the Customer shall not be required to pay such charges
unless the Consignee fails to pay after demand has been
made by the Carrier for the payment thereof and such
demand has not been paid within the time stipulated by
the Carrier to the Consignee.
9.3 Charges shall be payable on the expiry of any time
limit notified to the Customer (whether on any invoice
or otherwise) or failing such notification 30 days after
the relevant invoice and the Carrier shall be entitled
to interest at 3% above the base rate of HSBC Bank pie
for the time being calculated on a daily basis on all
amounts overdue to the Carrier. Any queries as to the
correctness of the invoice must be made in writing
within four-teen days of issue of the invoice otherwise
it will be payable in full.
9.4 Except where any quotation states otherwise, all
quotations given based on a weight charge shall apply to
the gross weight of the Consignment.
9.5 Unless stated otherwise, all charges quoted are
exclusive of Value Added Tax.
9.6 All sums due to the Carrier shall be paid without
deduction, set-off or abatement and the Customer shall
not withhold or defer any payment on account of any
claim or counterclaim and acknowledges that any such
claim or counterclaim whatsoever by the Customer against
the Carrier must be subject to separate proceedings.
10. Liability for Loss and Damage
10.1 The Customer shall be deemed to have elected to
accept the terms set out in paragraphs 10.2 and 10.3
below unless, before the transit commences, the Customer
has agreed in
writing that the Carrier shall not be liable for any
loss or misdelivery or damage to the Consignment however
or whenever caused and whether or not caused or
contributed to directly or indirectly by any act,
omission, neglect, default or other wrongdoing on the
part of the Carrier.
10.2 Save where the Customer has made specific
arrangements for insurance with the Carrier prior to
commencement of transit of the Consignment (as
determined in accordance with Clause
7.1), the Carrier shall not be liable for any loss or
misdelivery or damage to bullion, money, securities,
deeds, bills of exchange, promissory notes, stamps,
photographs, documents of title to property, jewellery,
precious stones, gold, silver, platinum and other
precious metals, non-ferrous metals other than in
component form, antiques, watches, furs, drugs, human
remains, nuclear fuel or nuclear waste, cassettes,
videos, spirits, tobacco (other than raw leaf tobacco)
and cigarettes, brittle/fragile/breakable articles or
livestock and the Customer shall indemnify and hold
harmless the Carrier in respect of any loss or damage
caused in respect thereof to any person whatsoever. In
addition, the Carrier shall not carry any passengers
under any circumstances.
10.3 The Carrier shall not be liable in respect of any
loss or misdelivery of or damage to any Consignment if
the same has arisen from and the Carrier has used
reasonable care to minimise the effects of:
10.3.1 Acts of God;
10.3.2 Any consequences of war, invasion, act of foreign
enemy, hostilities (whether war or not), civil war,
rebellion, insurrection, military or usurped power of
confiscation, requisition or destruction of or damage to
property by or under the order of any government or
public or local authority;
10.3.3 Seizure or forfeiture under legal process;
10.3.4 Act, omission, misstatement or misrepresentation
by the Customer or other owner of the Consignment or by
servants or agents of either of them; 10.3.5 Inherent
liability to wastage in bulk or weight, defect or
inherent defect, natural deterioration or fragility of
the
Consignment (notwithstanding that it may be marked
"Fragile");
10.3.6 Insufficient or improper packing;
10.3.7 Insufficient labelling or addressing;
10.3.8 Riot, civil commotion, strike, lockout, general
or partial stoppage or restraint of labour from whatever
cause;
10.3.9 The Consignee not taking or accepting delivery
within a reasonable time after the Consignment has been
tendered;
10.3.10 Failure or delay in delivery for any reason
whatsoever beyond the control of the Carrier.
10.4 The Carrier shall not in any circumstances be
liable for loss or damage to the Consignment after
transit of such goods is deemed to have ended within
Clause 7 above, whether or not caused or contributed to
directly or indirectly by any act, omission, neglect,
default, or other wrongdoing on the part of the Carrier.
11. Fraud
The Carrier shall not in any circumstances be
liable in respect of a Consignment where there has been
fraud on the part of the Customer or the owner of the
Consignment or any part thereof or the servants or
agents of either of them in respect of that Consignment,
unless the fraud has been contributed to by the
complicity of the Carrier or of any servant of the
Carrier acting in the course of his employment.
12. Limitation of Liability
12.1
The
liability of the Carrier for loss of or damage to any
Consignment carried on a dedicated ‘sameday’ delivery
vehicle shall be limited to a maximum of £10,000. For
all other services liability shall in all circumstances
be limited to the lesser of:
(a) the value of the Goods actually lost, misplaced or
damaged;
or
(b) the cost of repairing any damage, or of
reconditioning the Goods;
or
(c) a sum calculated at the rate of £100 sterling per
tonne on the gross weight of the Goods delivered or
damaged;
whether such loss or damage was due to the fault or
negligence of the Carrier or its servants, agents or
employees or otherwise. If the Customer wishes to
arrange a higher level of liability in respect of any
Consignment, then it should apply to the Carrier who may
be able to arrange this at an additional charge to the
Customer.
12.2 Where the mis-delivery, loss or damage howsoever
sustained is in respect of a part only of the
Consignment, the Carrier's liability shall be limited to
the actual value of that part of the Consignment or
where such can not be readily ascertained a sum
representing the proportion which the part of the
Consignment mis-delivered, lost or damaged represents of
the total Consignment based on the open market value of
the total Consignment.
12.3 Rapid Despatch shall not be liable to the customer
under or in Connection with this Agreement for any
indirect or consequential loss or damage or any loss of
or damage to profit, revenue, savings, use, contract,
goodwill or business, in each case howsoever
caused, including without limitation by reason of
misrepresentation (whether made prior to or in this
Agreement), negligence, other tort, breach of contract
or breach of statutory duty.
12.4 The Carrier shall be entitled to receive written
proof of the value of the Consignment damaged or lost
and shall be afforded by the Customer a reasonable
opportunity to inspect the Consignment when delivery has
been effected to the Consignee.
12.5 The Carrier shall only be liable for loss or damage
occurring within the geographical limits of Great
Britain. For journeys outside these limits, liability
shall be restricted to the amount of cover provided by
the international agent or carrier chosen at the
Carrier's absolute discretion.
13. Time Limits for Claims
13.1 The Carrier shall not be liable for:
13.1.1 Loss of a parcel, package, or container or from
an unpacked Consignment or for damage to a Consignment
or any part of a Consignment unless it is advised
thereof in writing otherwise than upon a consignment
note or delivery document within 3 days and the claim
giving details of quantum and the circumstances of any
loss is made in writing within 7 days after the
termination of transit as determined above;
13.1.2 Loss or mis-delivery or non-delivery of the whole
of the Consignment or any separate parcel, package or
container forming part of a Consignment unless the
Carrier is advised of
the loss, mis-delivery or non-delivery in writing,
otherwise than upon a consignment note or a delivery
document within 14 days and the claim giving details of
quantum and the circumstances of any loss is made in
writing within 21 days after the commencement of transit
as determined above.
14. Indemnity to the Carrier
14.1 The Customer shall indemnify the Carrier against:
14.1.1 All consequences suffered by the Carrier
(including but not limited to claims, demands,
proceedings, fines, penalties, damages, costs, expenses
and loss of or damage to the carrying vehicle and to
other goods carried) of any error, omission,
misstatement or misrepresentation by the Customer or
other owner of the Consignment or by any servant or
agent of either of them, insufficient or improper
packaging, labelling or addressing of the
Consignment or fraud;
14.1.2 All claims and demands whatsoever by whomsoever
made in excess of the liability of the Carrier under
these Terms and Conditions;
14.1.3 All losses suffered by and claims made against
the Carrier resulting from loss of or damage to property
caused by or arising out of the carriage by the Carrier
of Dangerous Goods whether or not declared by the
Customer as such;
14.1.4 All claims made upon the Carrier by H M Customs &
Excise in respect of dutiable goods consigned in bond
whether or not transit has ended or been suspended.
15. Lien
The Carrier shall have a general lien against
the Customer, where the Customer is the owner of the
Consignment, for any monies whatever due from the
Customer to the Carrier. If such a lien is not satisfied
within a reasonable time, the Carrier may at its
absolute discretion sell the Consignment or part
thereof, as agent for the Customer and apply the
proceeds towards monies due and the expenses of the
retention, insurance and sale of the Consignment and
shall, while accounting to the Customer for any balance
remaining, be discharged from all liability whatsoever
in respect of the Consignment. Where the
Customer is not the owner of the Consignment, the
Carrier shall have a particular lien against the said
owner, allowing the Carrier to retain possession, but
not dispose of, the goods against monies due from the
Customer in respect of the Consignment.
16. Unreasonable Detention
The Customer shall be liable
for the cost of unreasonable detention of any vehicle,
trailer, or other item of the Carrier, but the rights of
the Carrier against any other person shall remain
unaffected.
17. Impossibility of Performance
The Carrier shall be
relieved of its obligation to perform a Contract to the
extent that performance is prevented by the failure of
the Customer, fire, weather conditions, industrial
dispute, labour disturbance or cause beyond the
reasonable control of the Carrier.
18. Computation of Time In the computation of time,
where any period of days provided by these Terms and
Conditions is 7 days or less, Saturdays, Sundays and all
Bank/Public Holidays shall be excluded.
19. Governing Law and Jurisdiction These Terms and
Conditions and all Contracts shall be governed by and
construed in accordance with the Laws in England and any
proceedings in
relation thereto shall be subject to the exclusive
jurisdiction of the English Courts
(Rapid Despatch Logistics Ltd (hereinafter referred to
as “the Contractor”) accepts Goods for Storage only upon
the Conditions set out below. No servant or agent of the
Contractor is permitted to after or vary these
Conditions in any way unless expressly authorised in
writing to do so by a Director, Principal, Partner or
other authorised person, If any legislation is
compulsorily applicable to the Contract and any part of
these Conditions is incompatible with such legislation,
such part shall, as regards the Contract, be overridden
to that extent and no further.
Terms and conditions
Storage and overnight deliveries
1. Definitions
“Customer” means the person or company who contracts for
the services of the Contractor.
“Contract” means the contract between the Customer and
the Contractor for the Storage of Goods.
“Goods” means goods whether a single item or in bulk or
contained in one
parcel, package or container as the case may be or any
number of separate items, parcels, packages or
containers Stored under the Contract
“Storage” means the storage and handling of Goods
including unloading and loading of goods and movement of
goods between stores and such other ancillary services
as the contractor may agree to in writing and the words
“Store” and “Stored” shall be construed accordingly.
“Dangerous Goods” means:
(i) Goods named ‘individually in the Approved Carriage
List issued from time to time by the Health and Safety
Commission, radioactive material, any dangerous weapon,
drug, poison or substance or any article or substance
likely to encourage vermin or other pests or likely to
cause infection; or
(ii) any goods which, although, not included in (i)
above, in the sole opinion of the contractor, present a
similar hazard.
2. Parties and Sub-Contracting
The Customer warrants that he is either the owner of the
Goods or is authorised by such owner to accept these
Conditions on such owners behalf.
The Customer also warrants that the goods are as
described to the Contractor with regard to their nature
quantity, condition and dimensions.
The Customer also warrants that dangerous Goods accepted
for storage comply with all relevant statutory
regulations for the time being in force concerning the
Storage packaging and labelling of such articles or
substances
The Contractor and any other contractors employed by the
Contractor may employ the services of any other
contractor for the purpose of fulfilling the contract in
whole or in part and the name of every such other
contractor shall be provided to the customer on request.
The Contractor contracts for itself and as agent of and
trustee for its
servants and agents and all other contractors referred
to in (4) above and such other contractors’ servants and
agents and every reference in these Conditions to the
“Contractor” shall be deemed to include every other such
contractor, servant and agent with the intention that
they shall have the benefit of the contract and
collectively and together with the Contractor be under
no greater liability to the Customer or any other party
than Is the Contractor hereunder.
3. Dangerous Goods
Dangerous Goods must be disclosed by the Customer and if
the Contractor agrees to accept them for Storage such
Goods must be accompanied by a full written declaration
of their nature and contents and be properly and safely
packed and labelled in accordance with any legislation
for the time being in force for the Storage and carriage
of such articles or substances and the Customer shall,
whilst the Dangerous Goods are being Stored by the
Contractor, keep the Contractor informed of any
statutory modification or re-enactment thereof or any
rules or regulations made thereunder or rules or
recommendations made by any relevant authority,
concerning the Storage or handling of Dangerous Goods.
The Customer shall, whilst the Dangerous Goods are being
Stored by the Contractor, keep the Contractor informed
as on the handling and Storage of such Goods including
all health and safety recommendations and prior to
arranging despatch of the Dangerous Goods, the Customer
shall provide the Contractor with such information in
writing in relation to the Dangerous Goods as will
enable the Contractor to know the identity of the
substances comprising the Dangerous Goods, the nature of
the hazards created by such substances, and the action
to be taken in en emergency. The Contractor shall be
entitled to disclose the information supplied by the
Customer to its servants, agents and ether contractors
referred to in condition 2(5), and any relevant
Government department
4. Notice of Delivery or Collection
The Customer shall give the Contractor not less than 24
hours notice of its intention to deliver or remove goods
at the premises of the Contractor.
5. Receipt of Goods
(1) Following acceptance of the goods for storage the
contractor shall if required provide the Customer with a
receipt but no such document shall be evidence of the
condition or the correctness of the declared nature,
property, chemical composition, quantity, quality or
weight of the Goods at the time they are received by the
Contractor and the burden of proving the condition of
the Goods on receipt by the Contractor and that the
Goods were of the nature, property, chemical
composition, quantity, quality or weight declared in the
relevant document shall rest with the Customer.
(2) The contractor shall notify the Customer of any
pre-existing damage to
and or becoming aware of such damage or deficiency in
the Goods to be stored, within a reasonable time of the
contractor becoming aware of such damage or deficiency.
Such Goods shall, in the absence of any express
agreement to the contrary between the customer and the
contractor, be returned to the customer at the customers
expense.
6. Termination of Storage
(1) Either the Contractor or Customer may at any time
give not less than 21 clear days’ notice in writing to
the other of its intention to terminate the
Contract and notwithstanding that the Contractor may
have released
the Goods before the expiry of such notice, all charges
shall be payable to the date when the notice would have
expired.
(2) The Contractor may require the removal of the Goods
or any part thereof, forthwith, If in the Contractor’s
opinion:
(I) the Customer’s financial position becomes
unsatisfactory or if the Customer ceases to pay its
debts in the ordinary course of business or cannot pay
its debts as they become due, or (being a company) is
deemed to be unable to pay its debts or has a winding up
petition issued against it or a receiver appointed of
all or any part in respect of all or any part of the
business or assets of he Customer or (being an
individual) commits an act of bankruptcy or has a
bankruptcy petition issued against him, or the customer
is in breach of any of it’s obligations arising under
the contract.
(u) the Storage of Goods poses a risk to the health and
safety of the Contractor, its servants or any third
party or to the Contractor’s property or any third party
property;
(iii) the continued Storage of the Goods will result in
the Goods perishing or otherwise deteriorating and or
will cause damage to other goods or property.
(3) If the Goods or any part thereof are not removed
after notice is given by the Contractor to the Customer
in accordance with paragraphs (1) and (2) above, then
the Contractor may, at its absolute discretion, sell the
Goods after the lapse of a reasonable period of time
after notice is given by the Contractor of its intention
to sell the Goods or part thereof.
7. Revision of Storage Charges and Conditions of
Storage
The
Contractor’s charges and these Conditions may be revised
by the Contractor from time to time. Any such revision
shall not become effective until the expiry of
twenty-one days from the date notice of proposed
revision is given to the Customer.
8.
Contractor’s Charges
(1) Goods accepted for Storage during any calendar week
(Monday to Sunday both inclusive) shall be charged for
as though they were received on the first day of such
week.
(2) Charges shall be payable when due without reduction
or deferment on account of any claim, counterclaim or
set-off. The Contractor shall be entitled to interest at
8 per cent above the Bank of England Base Rate
prevailing at the date of the Contractor’s invoice or
account, calculated on a daily basis on, all amounts
overdue to the Contractor.
(3) Should the delivery of Goods be postponed or
cancelled by the Customer, the Contractor shall be
entitled to recover from the Customer all expenses
incurred by the contractor and all rental charges in
respect of space reserved for such Goods.
9. Liability for Loss and Damage
(1) The Customer shall be deemed to have elected to
accept the terms set out in (2) of this Condition
unless, before the Goods are Stored, the Customer has
agreed in writing that the Contractor shall not be
liable for any loss or misdelivery of or damage to or in
connection with the Goods however or whenever caused and
whether or not caused or contributed to directly or
indirectly by any act, omission, neglect, default or
other wrongdoing on the part of the Contractor, its
servants, agents or sub-contractors.
(2) Subject to these conditions the Contractor shall be
liable for:
(a) physical loss, mis-delivery of or damage to living
creatures, bullion, money, securities, stamps, precious
metals or precious stones only if:
(i) the Contractor has specifically agreed in writing to
Store any such
items; and
(ii) the Customer has agreed in writing to reimburse the
Contractor In respect of all additional costs which
result from the Storage of the said Items; and
(iii) the loss, mis-delivery or damage is occasioned
during Storage and is proved to be due to the negligence
of the Contractor, its servants, agents or
sub-contractors.
(b) physical loss, mis-delivery of or damage to any
other Goods occasioned during Storage unless the same
has arisen from, and the Contractor has used reasonable
care to minimise the effects of:
(i) Act of God;
(Ii) any consequences of war, invasion,, act of foreign
enemy, hostilities (whether war or not), civil war,
rebellion, insurrection, terrorist act, military or
usurped power or confiscation, requisition, or
destruction or damage by or under the order of any
government or public or local authority;
(iii) seizure or forfeiture under legal process;
(iv) error, act, omission, mis-statement or
misrepresentation by the Customer or other owner of the
Goods or by servants or agents of either of them:
(v) inherent liability to wastage in bulk or weight,
faulty design, latent defect or inherent defect, vice or
natural deterioration of the Goods;
(vi) leakage or deficiency of Goods of a perishable or
leaky nature, moth, vermin, insects, atmospheric or
climatic causes;
(vii) insufficient or improper packing;
(viii) insufficient or improper labelling or addressing;
(ix) riot, civil commotion, strike, lockout, general or
partial stoppage or restraint of labour from whatever
cause;
(x) any other cause beyond the reasonable control of the
Contractor.
(3) The Contractor shall not in any circumstances be
liable for loss of or damage to Goods arising after
Storage of such Goods has ended
whether or not caused or contributed to directly or
indirectly by any act omission, neglect, default or
other wrongdoing on the part of the Contractor, its,
servants, agents or sub-contractors.
10. Fraud
The Contractor shall not in any circumstances be liable
in respect of goods where there has been fraud on the
part of the Customer or the owner, or the servants or
agents of either, in respect of those Goods, unless the
fraud has been
contributed to by the complicity of the Contractor or
other servant of the Contractor acting in the course of
his employment.
11. Limitation of Liability
(1) Except as otherwise provided in these conditions the
liability of the Contractor in respect of claims for
physical Loss, mis-delivery of or damage to Goods
howsoever arising, shall in all circumstances be limited
to the lesser of:
(a) the value of the Goods actually lost, misplaced or
damaged;
or
(b) the cost of repairing any damage, or of
reconditioning the Goods;
or
(c) a sum calculated at the rate of £100 sterling per
tonne on the gross weight of the Goods delivered or
damaged;
and the value of the Goods, mis-delivered or damaged
shall be taken to be their invoice value if they have
been sold and shall otherwise be taken to be the
replacement cost thereof to the’ owner at the
commencement of transit, and in all cases shall be taken
to include any Customs and Excise duties or taxes
payable in respect of those Goods:
Provided that:
(i) in the case of loss, mis-delivery of or damage to a
part of the Goods the weight to be taken into
consideration in determining
the amount to which the Contractor’s liability is
limited shall be only the gross weight of that part
regardless of whether the loss, mis-delivery or damage
affects the value of other parts of the Goods;
(ii) nothing in this Condition shall limit the liability
of the Contractor to less than the sum of £100;
(iii) the Contractor shall be entitled to proof of the
weight and value of the whole of the Goods and of any
part thereof lost, mis-delivered or damaged;
(ivy the Customer shall be entitled to give to the
Contractor written notice to be delivered at least 7
days prior to commencement of Storage requiring that the
£100 per tonne limit in 11 (1)(c) above be increased,
but not so as to exceed the value of the Goods, and in
the event of such notice being given the Customer shall
be required to agree with the Contractor an increase in
the Storage charges in consideration of the increased
limit, but if no such agreement can be reached the
aforementioned
£100 per tonne limit shall continue to apply.
(2) The liability of the Contractor in respect of claims
for any other whatsoever (including indirect or
consequential loss or damage and loss of market), and
howsoever arising in connection with the Goods, shall
not exceed the amount of the Storage charges in respect
of the Goods or the amount of the claimant’s proved
lost, whichever is the lesser, unless;
(a) at the time of entering into the Contract with the
Contractor the Customer declares to the Contractor a
special interest in Storage in the event of physical
loss mis-delivery or damage and agrees to pay a
surcharge calculated on the amount of that interest, and
(b) at least 7 days prior to the commencement of Storage
the Customer has delivered to the Contractor written
confirmation of the special interest and amount of the
interest,
12. indemnity to the Contractor
The Customer shall indemnify the Contractor against:
(1) all liabilities and costs incurred by the Contractor
(including but not limited to claims, demands,
proceedings, fines, penalties, damages, expenses and
loss of or damage to the place of storage and to other
goods Stored) by reason of any error, omission, mis-statement
or misrepresentation by the Customer or other owner of
the Goods or by any servant or agent of either of them,
insufficient or improper packing, labelling or
addressing of Goods or fraud as in Condition 10;
(2) all claims and demands whatsoever (including for the
avoidance of doubt claims alleging negligence), by
whomsoever made and howsoever arising (including but not
limited to claims caused by or arising out of the
Storage of Danger Goads and claims made upon the
Contractor by HM Customs and Excise in respect of
dutiable goods consigned in bond) in excess of the
liability of the Contractor under these Conditions in
respect of any loss or a whatsoever to, or in connection
with, the Goods whether or not caused or contributed to
directly or indirectly
by any act, neglect, default or other wrongdoing on the
part of the Contractor it’s servants, agents or
subcontractors.
13. Time Limits for claims
(1) All claims for damage to or physical lots or mis-delivery
of or failure to release any Goods and any claim
referred to in Condition 11(2) shall be made in writing
by the Customer within seven days after release of the
goods alleged to be damaged or, in the case of Goods
alleged to be lost or mis-delivered or which the
Contractor fails to release, within seven days a the
time when the Goods should in the ordinary course of ye
been released and the Contractor shall be under no
liability unless such claim is made within the time
stipulated:
Provided that if the Customer proves that:
(a) it was not reasonably possible for the Customer to
advise the Contractor or make a claim in writing within
the time limit applicable, and
(b) such advice or claim was given or made within a
reasonable time, the Contractor shall not have the
benefit of the exclusion of liability afforded by this
Condition.
(2) The Contractor shall in any event be discharged from
all liability whatsoever and howsoever arising in
respect of the Goods unless suit is brought within one
year of the date when the Goods were released or should,
in the ordinary course of events, have been released.
(3) In the computation of time where any period provided
by these Conditions is seven days or less, Saturdays,
Sundays and all statutory public holidays shall be
excluded.
14. Lien
(1) The Contractor shall have a general lien against the
Customer, where the Customer is the owner of the Goods,
for any monies whatever due from the Customer to the
Contractor. If such a lien is not satisfied within a
reasonable time, the Contractor may, at its absolute
discretion sell the Goods, or part thereof, as agent for
the Customer and apply the proceeds towards the monies
due and the expenses of the retention, insurance and
sale of the Goods and shall, upon accounting to the
Customer for any balance remaining, be discharged from
all liability
whatever In respect of the Goods.
(2) Where the Customer is not the owner of the Goods,
the Contractor shall have a particular lien against the
said owner, allowing the Contractor to retain
possession, but not to dispose of, the Goods against
monies due
from the Customer in respect of the Goods.
15. Impossibility of Performance
The Contractor shall be relieved of its obligations to
perform the Contract to the extent that the performance
thereof is prevented by failure of the Customer, fire,
weather conditions, industrial dispute, labour
disturbance or cause beyond the reasonable control of
the Contractor.
16. Notice
All written communications from the Contractor to the
Customer shall be deemed to have been served if
delivered or posted to the last known address of the
Customer.
17. Law and Jurisdiction
The Contract shall be governed by English law, except in
the case of Goods stored solely in Scotland when it
shall be governed by Scots Law, and United Kingdom
court5 alone shall have jurisdiction in any dispute
between the Contractor and the Customer,
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