All transactions entered into by Graypen Group Limited (hereinafter "the Company") in connection with or arising out of the Company's business shall, unless otherwise agreed or stated by the Company in writing, be subject to the following Terms and Conditions, to the exclusion of all other Terms and Conditions (including any Terms or Conditions which the Principal, Supplier or Merchant, as the case may be, purport to apply under any order or acceptance of quotation or other document.
1. In these Terms and Conditions the following expressions have the following meanings respectively:
- "The Company" means Graypen Group Limited or any subsidiary company.
- "Services" means the services which are provided by the Company to the Merchant and Principal, whether or not for reward, whether same be by way of charge, fee, commission or remuneration of any other kind.
- "Supplier" means the company firm or person who contracts to supply services or goods to the Principal or Merchant through the Company.
- "Merchant" means the company firm or person (or any agent thereof) who ships, receives, owns or forwards goods or holds the bill of lading in respect of which the Company, whether as agent or Principal, has agreed to provide or procure services.
- "Principal" means the company firm or person who has or whose representatives have instructed the Company and who is the owner or charterer or manager of the vessel represented by the Company and/or the carrier under the bill of lading in connection with which services are provided by the Company.
- "Goods" means any wares, merchandise and articles of every kind whatsoever including any container, chassis, trailer or similar equipment used for the purpose of carrying cargo.
- "SDR" means a Special Drawing Right as defined by the International Monetary Fund.
- Words importing the singular number shall include the plural and vice versa, words importing the masculine shall include the feminine and neuter and vice versa and words importing persons shall incorporate bodies corporate, unincorporated associations and partnerships.
- The headings in these Terms and Conditions are for convenience only and shall not affect the interpretation.
TRANSACTIONS WITH THE PRINCIPAL
The following Terms and Conditions shall apply to transactions with the Principal:
2. The Principal shall indemnify the Company in respect of all liabilities incurred by the Company when acting as a port agent or liner agent or booking agent on the Principal's behalf.
3. The Principal shall pay forthwith by telegraphic transfer to the Company's bank account such sums as the Company may in advance request in respect of port costs which the Company estimates will be incurred on the Principal's behalf whilst the Principal's vessel is in the Company's agency. If the Principal should fail to comply with the Company's request the Company may at any time give notice of the termination of its agency.
4. The definitions Terms and Conditions and fees of Graypen Group Limited and/or any subsidiary company, for the time being in force, shall also apply to relevant transactions with the Principal unless otherwise agreed in writing.
5. The Company shall invoice the Principal for all costs incurred by the Company on the Principal's behalf, and in respect of the Company's fees. The Principal shall make payment of such invoices immediately as all invoices are payable on presentation. No credit period is granted on any invoices (save to the extent that they are met by any advance payment made pursuant to Clause (3) above). All invoiced amounts shall be payable and recoverable as debts due to the Company without set off, deduction or counterclaim. No advance payments received by the Company pursuant to Clause (3) above or otherwise shall be held as trust monies, and all monies shall be payable into its general trading account.
6. The Principal shall indemnify the Company against all third party claims, charges, losses, damages, taxes, duties and expenses that the Company may incur. This indemnity shall not extend to matters arising by reason of the negligence or wilful misconduct of the Company.
7. The Company, with the consent of the Principal, shall have authority to appoint sub-agents to perform services on behalf of the Principal, including such services as may be subject to these Terms and Conditions, remaining at all times responsible for the actions of the sub-agent.
8. Where the Company acts as liner agent and/or booking agent for the Principal, the Principal shall give six months' written notice of termination of the agency. For the purpose of this clause "written notice" shall also include notice by electronic means.
TRANSACTIONS WITH THE SUPPLIER
The following Terms and Conditions shall apply to transactions with the Supplier:
9. Unless otherwise stated in writing, when the Company is acting as a port agent or liner agent or booking agent it acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Supplier as agents for Principal. The Company shall not be personally liable to pay any debt or expense to the Supplier from the Principal.
10. Where the Company is acting as a forwarding agent, unless it is acting as agent for the Principal in accordance with Clause (2) hereof or otherwise agreed in writing, it acts at all times as agent for and on behalf of the Merchant and has authority to enter into contracts with the Supplier as agents for the Merchant. The Company shall not be personally liable to pay any debt due from the Merchant.
TRANSACTIONS WITH THE MERCHANT
The following Terms and Conditions shall apply to transactions with the Merchant:
11. When acting as port agent or liner agent or booking agent, the Company acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Merchant as agents for the Principal. The Company shall not be personally responsible for the Principal's liabilities.
12. The Company may provide the services to the Merchant as its agent or as a Principal. All sums invoiced shall be payable and recoverable as debts due without set off, deduction or counterclaim. Any sums paid in advance shall be paid into the Company's general trading account and shall not be trust monies. The Merchant warrants that it is either the owner of the goods or the agent of the owner and that it accepts these Terms for itself and as agent for and on behalf of the owner.
13. Where the Company arranges services for the Merchant's goods which are or will be carried in accordance with a contract with the Principal contained in or evidenced by a bill of lading, charterparty or other contract of affreightment, all services including forwarding services are arranged by the Company as agent for and on behalf of the Principal. The provision of such services shall be subject to the Terms and Conditions of the Principal's bill of lading and tariff rules (if any) which may be inspected on request, or other contract between the Principal and the Merchant.
14. The Company shall have full liberty to sub-contract the whole or any part of its contracted services to third parties as may be necessary to fulfil the customer's instructions and subject to the trading conditions of the sub-contractors.
15. The Company shall be relieved of any liability, and the Merchant shall hold the Company harmless, for loss or damage if such loss or damage resulted from:
- the act or omission of the Merchant or his representative or any other party from whom the Company took charge of the goods;
- inherent vice of the goods, including improper packing, labelling or addressing (except to the extent that the Company undertook to be responsible therefore);
- handling, loading, stowage or unloading of the goods by the Merchant or any person acting on his behalf other than the Company;
- seizure, forfeiture or detention under legal process;
- riot, civil commotion, strike, lock out, general or partial stoppage or restraint of labour from whatever cause;
- any consequences of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, terrorism, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to any property or goods by or under the order of any Government or public or local authority.
- any cause or event which the Company was unable to avoid and the consequences whereof the Company was unable to prevent by the exercise of due diligence.
16. The Company shall not effect insurance for the subject matter of the services save upon express instructions given in writing by the Merchant in relation to which there shall be a specific agreement as to charge. All insurance affected by the Company is subject to the conditions of the insurer. If the Company agrees to affect insurance, it acts as agent of the Merchant in doing so.
17. Where the Company agrees to provide or arrange services for the Merchant's goods, the Merchant shall be deemed to have authorised the Company to conclude all and any contracts necessary to provide those services. The Merchant shall reimburse on demand the Company with all taxes, charges or fines whatsoever incurred by the Company as a result of providing or arranging the services, or undertaking any liability in connection with the services, particularly in respect of any bond issued to Customs or any other statutory authority by the Company.
18. The Merchant shall declare to the Company full details of goods which are of a dangerous or damaging nature. Should the Merchant fail to provide such details at the time of contract the Merchant shall be responsible for all costs and damages arising as a result thereof and the Company shall have the right exercisable on behalf of itself or its Principal to rescind the contract.
19. The Company shall exercise reasonable care and diligence in providing services.
20. Unless otherwise agreed in writing, the liability of the Company shall in all circumstances be limited to the lesser of sums calculated in the following manner:
- where goods are lost or damaged
- the value of goods so lost and damaged; or
- a sum calculated at the rate of SDRs 2.00 per kilo of the gross weight of any goods lost or damaged;
- in all other circumstances the amount of the direct loss of SDRs 75,000
21. The Company will not provide services in connection with [bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, pets or plants] but if the Company should, in the course of providing the services, handle or deal with 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 however arising.
22. The Company shall perform the services with due despatch but shall not be liable for any loss or damage arising from any delay which it could not reasonably prevent. Without prejudice to the foregoing, in the event that the Company is deemed to be liable for delay its liability shall not exceed the amount of the Company's charges in respect of the transaction.
23. Except in those cases of loss or damage referred to in Clauses (21) and (22) above and Clause (24) below, no liability whatsoever for consequential loss, be it direct or indirect, shall attach to the Company. Such loss shall include (but not be limited to) loss of profit, loss of market or the consequences of delay or deviation, however caused.
24. The Company shall not be liable for loss or damage to goods unless it is advised thereof in writing within three days after the completion of provision of the services and the claim is made in writing within 42 days, provided always that these limits shall not apply if the Merchant or Principal can establish that it was not reasonably possible for him to make a claim in writing within the time limit and notice was given within a reasonable time. Notwithstanding the above provisions, the Company shall in any event be discharged from all liability whatsoever and howsoever arising in connection with the services unless suit is bought within nine months of the delivery of the goods or of the date they should have been delivered or of the date of the event giving rise to any other loss.
25. If the Merchant or the Principal, as the case may be, fails to make payment in full of any sums due to the Company on demand or within any period agreed in writing, the Company shall be entitled to recover interest on any sums outstanding with effect from the date of first demand at the rate of 2% above the average of the London Inter Bank Ordinary Rate (LIBOR) applicable during the period when the sums are outstanding.
26. The Company shall have a general lien on all goods and documents relating to goods in its possession, custody or control for all sums due at any time from the Merchant or Principal and shall be entitled to sell or dispose of such goods or documents as agent for and at the expense of the Merchant or Principal and apply the proceeds towards the monies due and the expenses of the retention, insurance, sale and disposal of the goods. Reasonable notice of 28 days of the intention to sell will be given by the Company to the Merchant or Principal unless the goods are liable to perish or deteriorate in which case the Company shall have the right to sell or dispose of the goods immediately. The Company shall, upon accounting to the Merchant or Principal for any balance remaining, be discharged from all liability whatsoever in respect of the goods.
27. Where liability for General Average arises in connection with the goods, the Customer shall promptly provide security to the Company or any other party designated by the Company in a form acceptable to the Company.
28. It is hereby expressly agreed that no servant or agent of the Company (which for the purpose of this clause includes every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever under these Terms and Conditions for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment.
29. Without prejudice to the generality of the foregoing provisions, every exemption from liability, limitation, condition and liberty herein contained and every right, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled, shall also be available and shall extend to protect every such servant and agent of the Company acting as aforesaid.
30. The Company shall be entitled to retain and be paid all customary brokerages, commission, allowances and other remuneration.
31. The Merchant, the Supplier and the Principal each undertake with the Company that no claim or allegation of any kind shall be made against any of the Company's directors officers employees servants or agents (therein collectively called "the Beneficiaries") for any loss damage or delay of whatsoever kind arising or resulting directly or indirectly from any negligent act error or omission of the Beneficiaries in the performance of the services the subject of these Terms and Conditions. The Beneficiaries shall have the benefit of this undertaking and in entering into this contract the Company, to the extent of this provision, does so not only on its own behalf but also as agent or trustee for the Beneficiaries, who shall to the extent of this clause only be or be deemed to be parties to this contract.
32. These Terms and Conditions shall be subject to English Law. Any dispute arising in connection with the Company's business shall be determined by arbitration in London pursuant to the LMAA Terms for the time being in force by a sole arbitrator appointed for that purpose by the parties. Failing agreement as to the identity of the sole arbitrator, each party shall nominate its own arbitrator, and the two so chosen, if they cannot agree, shall nominate an umpire, whose decision shall be final.
33. If there is any conflict between the Terms set out herein and any other Terms and Conditions agreed between the parties these Terms and Conditions shall prevail unless the Company specifically agrees otherwise in writing.
- If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other Terms and Conditions which shall remain in full force and effect.
- If any provision in these Terms and Conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
- The parties agree, in the circumstances referred to in Clause 34(a) [and if Clause 34(b) does not apply], to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
NOTE: These Terms and Conditions contain provisions relating to the exclusion and limitation of liability. You may wish to insure against these risks.
© THE INSTITUTE OF CHARTERED SHIPBROKERS, MARCH 2002 OTHER THAN AMENDMENTS WHICH ARE © GRAYPEN GROUP LTD 2014.