Terms

African Cargo Services Limited Terms and Conditions

STANDARD TRADING CONDITIONS OF AFRICAN CARGO SERVICES. These standard trading conditions govern all services provided by African Cargo Services Limited. They limit or exclude the liability of African Cargo Services Limited in certain circumstances. Insurance is not provided by African Cargo Services Limited. It is recommended that the Customer arranges its own insurance.

1.         Definitions

1.1        "ACS" shall mean African Cargo Services Limited of Fairfax House, Causton Road, Colchester, Essex CO1 1RJ.

1.2        "Charges" shall mean all monies of whatever nature payable by the Customer to ACS.

1.3        The "Customer" shall mean any person at whose request ACS provides Services.

1.4        The "Goods" shall mean any goods of whatever nature (including the packaging thereof) in relation to which ACS provides the Services. If the Goods are supplied to ACS or any Third Party Service Provider in a trailer, container or similar transport unit, the Goods shall be deemed to include such trailer, container or similar transport unit.

1.5        "Person" shall mean any person, whether a natural person, body corporate, partnership, limited liability partnership or similar.

1.6        "Services" shall mean any services provided by ACS to the Customer at the Customer's request whether such Services are gratuitous or not.

1.7        "Third Party Service Provider" shall mean any carrier, warehouse keeper, forwarder or other party appointed by ACS (acting as agent of the Customer) to perform any carriage, storage, custody, handling or other such services.

1.8        Where the context requires, words denoting the singular include the plural and vice versa.

2.         Application

2.1        All Services provided by ACS shall be subject to these conditions.

2.2        These conditions shall prevail over any conditions in the Customer's order. There shall be no variation to these conditions unless it is agreed in writing and signed by ACS and the Customer.

2.3        The Customer warrants that it is either the owner of the Goods or that it is authorised by the owner to accept these conditions on behalf of the owner.

2.4        If the Services provided are subject to any compulsorily applicable legislation, regulations or directives, these conditions shall, in relation to such Services, be read as subject to such legislation, regulations or directives.

2.5 If the contract is not one to which the Unfair Contract Terms Act 1977 or any superseding legislation ("UCTA") compulsorily applies, clauses 11.1 and 11.2 below shall be read as excluding UCTA and UCTA shall not apply by reason of the contractual adoption of English law in these conditions

2.6 As far as any clause or sub-clause of these conditions is held by a court to be contrary to any compulsorily applicable legislation, regulation or directive or otherwise judged by a court to be unlawful, void or unenforceable, such clause or sub-clause shall, to the extent necessary, be severed from these conditions and rendered ineffective as far as possible without modifying the remaining provisions of these conditions.

2.7 Nothing in these conditions shall be construed as a surrender by ACS of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under any compulsorily applicable legislation, regulations or directives.

3. The Services

3.1 (a) ACS shall act as the agent of the customer when arranging for the carriage and/or storage and/or handling of Goods and providing any Services relating to customs clearance, taxes, licences, consular documents, certificates of origin, inspection certificates or providing similar Services; (b) The fact that ACS may quote and/or charge an inclusive fee (namely a fee which includes all costs and charges and does not set out ACS's Charges, fees, commissions etc separately) does not affect the capacity of ACS as agent for the Customer.

3.2 When acting as agent, ACS does not make or purport to make any contract with the Customer for the carriage, storage, custody or handling of the Goods and acts solely as agent on behalf of the Customer in procuring such services by establishing contracts on behalf of and as agent for the Customer with Third Party Service Providers.

3.3 ACS shall not be liable for the acts or omissions of Third Party Service Providers unless those acts or omissions are caused by the negligence or breach of contract of ACS.

3.4 When so requested by the Customer, ACS shall provide to the Customer details of any contract entered into on behalf of the Customer including the identity of the Third Party Service Providers and the terms of the contracts.

3.5 ACS shall be entitled to retain and be paid all brokerages, commissions, allowances, profits, fees and other remunerations customarily retained or paid to freight forwarders.

3.6 ACS shall be at liberty in its absolute discretion to decide on the means, route and method by which the carriage, storage or handling of the Goods shall be performed.

3.7 Pursuant to the performance of the Services, ACS may, as agent for the Customer, contract with any carriers, forwarders, warehouse keepers or any other Third Party Service Providers on any terms whatsoever.

3.8 Insofar as ACS provides any Services as principal, ACS shall have full liberty to sub-contract the Services on any terms whatsoever.

3.9 No insurance shall be arranged by ACS to cover any Goods during the performance of the Services or during any transportation, storage or other handling of the Goods.

3.10 Unless agreed in writing, ACS shall not make any special declarations of value or interest in relation to the Goods upon any transport documentation or otherwise.

3.11 If the Customer and ACS agree in writing to make any special declaration of value or interest upon any transport documentation or otherwise, the Customer hereby agrees to indemnify ACS for any increased costs or expenses and to pay ACS for any increased Charges arising by reason of such special declarations.

3.12 Unless otherwise agreed in writing, ACS does not give any warranties or undertakings with regard to collection or delivery dates and is under no liability whatsoever for the failure of carriers or Third Party Service Providers appointed by ACS to adhere to any collection or delivery dates.

3.13 If the Customer requires ACS to hold Goods or documents or to instruct a Third Party Service Provider to hold Goods or documents for release or delivery only against payment or surrender of a particular document, such instructions must be in writing. If such instructions are not in writing, ACS shall be under no liability whatsoever and howsoever arising for failure to adhere to such instructions.

3.14 ACS may at any time comply with the orders or recommendations given by any governmental authority, port authority or any other duly constituted legal or administrative authority.

4. The Goods

4.1 ACS will not, without prior agreement between ACS and the Customer, accept, deal with or arrange the carriage, storage or handling of any Goods which, by their nature, require special handling, carriage or security (including but not limited to bullion, coins, precious stones or precious metals, jewellery, pictures, antiques, valuables, watches, mobile telephones, computers or the component parts thereof, computer accessories, electronic games consoles, MP3 players, human remains, livestock or plants).

4.2 The Customer warrants that the Goods are not dangerous or damaging to either themselves, property belonging to ACS, Third Party Service Providers or any other third parties or to health or the environment.

4.3 If the Customer causes ACS to handle, deal with or arrange the carriage, storage or handling of Goods in contravention to clause 4.1 or 4.2 above:- (a) ACS shall have no liability whatsoever for any loss or damage suffered to or in relation to the Goods, whatsoever and howsoever arising; and (b) The Customer shall save harmless and keep ACS indemnified from and against any liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses whatsoever and howsoever arising out of or in connection with the carriage, storage or handling of such Goods; (c) Insofar as the Goods or any part thereof are considered by ACS to be dangerous or a risk to other goods, property, the environment, life or health, ACS reserves the right to destroy or otherwise deal with the Goods at the expense of the Customer and without any prior notice thereto. Moreover, the Customer shall indemnify ACS for all liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses arising from or in connection with the Goods and their destruction or other disposal.

5. Customer's warranties and undertakings

5.1 The Customer warrants that:- (a) The description and particulars of the Goods and any information supplied by the Customer to ACS or any Third Party Service Provider (including any information supplied by third parties on behalf of the Customer) is full and accurate; (b) All Goods are packed and labelled and/or marked in a method which is suitable and appropriate having regard to the nature of the Goods and the anticipated carriage and/or storage and/or handling thereof; (c) Where the Goods are supplied already loaded in a container, trailer or other transport unit, the Goods are properly loaded, stowed and secured therein and the container, trailer or other transport unit is in sound condition and suitable for the anticipated carriage and/or storage and/or handling of the Goods; (d) The Customer has obtained all necessary permits, licences and other permissions or documents required of the Customer necessary for the anticipated carriage and/or storage and/or handling of the Goods or for the provision of any of the Services by ACS; and (e) The instructions issued by the Customer or on behalf of the Customer are executable, complete and sufficient for ACS to perform the Services.

5.2 The Customer undertakes not to make any claim against any director, agent or employee of ACS in connection with any Services provided by ACS. For the avoidance of doubt, nothing in this clause shall exclude the Customer from making a claim against any Third Party Service Provider.

5.3 The Customer shall save harmless and keep ACS indemnified from and against all liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses of whatever nature incurred by ACS (including, but not limited to, claims, demands, proceedings, fines, penalties and damages) arising from:- (a) ACS acting in accordance with the Customer's instructions whether or not caused or contributed to directly or indirectly by any act or omission, neglect or default on the part of ACS, its servants or agents; (b) Any act, omission or default on the part of the Customer or any breach by the Customer of any of the warranties or terms of these conditions; (c) Any claims for General Average made against ACS in relation to the Goods. The Customer agrees to provide security for any General Average claims to ACS or any other party designated by ACS promptly and in a form acceptable to ACS; (d) ACS acting in accordance with any orders or recommendations under clause 3.13 hereof.

5.4 The Customer shall save harmless and keep ACS indemnified from and against all liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses whatsoever and howsoever arising and by whomsoever made or preferred, in excess of the liability of ACS under these conditions.

5.5 Any advice and information provided by ACS to the Customer in whatever form is intended for the sole use of the Customer. The Customer will defend, indemnify and hold harmless ACS from or against all liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses of whatever nature arising from or in relation to any other person relying on such advice or information.

5.6 If the Customer, a consignee or any other person to whom delivery of the Goods is to be made refuses to take delivery of the Goods, ACS may arrange for the Goods to be stored at the sole risk and expense of the Customer. The Customer agrees to indemnify and hold harmless ACS against and from any liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses of whatever nature arising from or in relation to such storage.

5.7 The Customer shall defend, indemnify and hold harmless ACS from and against all liability, loss, damage, claims, costs, indemnities, claims for contribution and other expenses of whatsoever nature arising out of or in relation to any contracts made by ACS as agent of the Customer in the provision of the Services.

 

6. Charges and payment

6.1 Unless otherwise stated in writing, any quotes provided by ACS:- (a) Shall be exclusive of VAT or other taxes applicable to the Services; (b) Shall be exclusive of any taxes, levies, imposts, duties or other such costs or expenses raised upon the Goods; (c) Even if accepted by the Customer, shall, up to the time of shipment, be subject to variation to take into consideration increases in fuel charges, freight rates or other such expenses. If a quotation is so varied, ACS shall advise the Customer as soon as practicable and the Customer shall be entitled to elect either to confirm the agreement for the provision of the Services at the new quoted price or cancel the agreement for the provision of the Services.

6.2 Notwithstanding and without prejudice to the capacity of ACS as agent of the Customer for the purposes of clause 3.1, ACS shall be at liberty to provide to the Customer an inclusive quote which does not separately show ACS's commission, brokerages, fees and any other Charges as distinct from freight, storage charges or other costs or expenses charged by any party (including any Third Party Service Provider) providing the carriage and/or storage and/or handling of the Goods or any other Services.

6.3 Unless otherwise agreed in writing and subject to clause 6.4 below, all Charges shall be paid by the Customer to ACS in dollars within 15 days of the date upon which the invoice is raised by ACS.

6.4 The granting of any credit by ACS (including the 15 days credit provided in clause 6.3 above) shall be at the sole discretion of ACS. ACS may, in its absolute discretion, require the Customer to make payment in full or in part immediately upon presentation of an invoice whether this be before or after the Services have been provided.

6.5 The Customer shall pay all sums due to ACS in cash or as otherwise agreed without reduction or deferment on account of any claim, counterclaim or set-off.

6.6 If any sum payable by the Customer to ACS becomes overdue, interest will be charged in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 or as amended. Furthermore, the Customer shall save harmless and keep ACS indemnified from and against the costs, liabilities, expenses, fines, penalties or other claims of whatever nature arising from or by reason of such late payments.

6.7 If the Customer fails to make payment on the due date or if the Customer becomes insolvent or goes into liquidation, either compulsory or voluntary (save for the purposes of reconstruction or amalgamation), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Customer's assets, or if the Customer makes an assignment for the benefit of, or composition with its creditors generally, all and any sums owed by the Customer to ACS shall become immediately payable, whether or not such sums are subject to a Credit Agreement (which shall, for the avoidance of doubt, include the 15 day credit period in clause 6.3 above).

6.8 Notwithstanding any agreement by ACS to collect freight, duties, taxes, any Charges or any other sums of whatever nature from a consignee or any other person, the Customer shall remain liable to pay any such freight, duties, taxes or Charges to ACS.

7. Lien

7.1 ACS has a general lien on all Goods, documents and money held by ACS which may be applied against any account or sums due from the Customer to ACS whatsoever.

7.2 Upon ACS exercising its lien under clause 7.1 above, storage charges shall apply to any Goods or documents held subject to the lien. Such storage charges shall be for the account of the Customer.

7.3 Upon giving the Customer at least 28 days written notice, ACS may sell, dispose of or otherwise deal with the Goods or documents as agents for and at the expense of the Customer and apply the proceeds towards payment of any sums due from the Customer to ACS.

7.4 Upon accounting to the Customer for any balance remaining after payment of any due sums and the costs of sale, disposal and/or dealing with and any costs associated with the storage of the Goods, ACS shall be discharged of any liability whatsoever and howsoever arising in respect of the Goods or documents.

7.5 The notice period for the sale, disposal or dealing with the Goods or documents in clause 7.3 above shall not apply where the Goods or documents are likely to perish, deteriorate or damage other goods or property or cause injury. In such circumstances, the right to sell, dispose of or deal with the Goods in clause 7.3 shall arise immediately upon the sum becoming due. ACS shall take reasonable steps to notify the Customer or other persons interested in the Goods or documents of its intention to sell, dispose of or otherwise deal with such Goods or documents.

7.6 ACS may apply any money held by ACS to the settlement of any sums due from the Customer as ACS, in its absolute discretion, considers appropriate. ACS will, after satisfaction of all sums due from the Customer, account to the Customer for the balance of any money so held.

8. Liability

8.1 ACS shall, subject to these conditions, be liable for the Customer's direct losses arising from a breach of ACS's obligations under its agreement with the Customer.

8.2 ACS shall not be liable for any loss, damage or claims arising from or in relation to: (i) Act of God; (ii) Consequences of war, invasion, act of foreign enemy, hostilities, civil war, riots rebellion, insurrection, military or usurped power or confiscation, requisition or destruction of or damage to property by or under the order of any government or public or local authority; (iii) Seizure or forfeiture under legal process; (iv) Breach by the Customer of a warranty or other obligation provided by the terms of these conditions; (v) Any other error, act or omission, misstatement or misrepresentation by the Customer or other owner of the Goods or by servants or agents of either of them; (vi) Inherent liability to wastage in bulk or weight, latent defect or inherent defect, vice or natural deterioration of the Goods; (vii) Insufficient or improper packing, labelling, addressing or, where performed by the Customer or owner of the Goods or servants or agents of either of them, insufficient or improper loading, stowage and securing; (viii) Strike, lockout, stoppage or restraint of labour from whatever cause; and (ix) Any cause or event which ACS is unable to avoid and the consequences of which ACS is unable to prevent by the exercise of reasonable diligence.

8.3 If the Customer and ACS agree in accordance with clause 3.12 for the Goods or documents to be held for release or delivery against payment or surrender of a particular document, ACS shall not be liable for the failure to ensure payment or surrender of the particular document if:- (i) ACS acted as agent for the Customer in accordance with clause 3.1 above and ACS can demonstrate that it gave clear and sufficient instructions to the Third Party Service Provider to hold the Goods or documents in accordance with the Customer's instructions; or (ii) ACS accepted the Customer's instructions to release or deliver the Goods against payment or surrender of a particular document as principal and ACS took reasonable steps to ensure that payment was effected or that the particular document was surrendered.

9. Limits of liability

9.1 Subject to clause 9.2 below, for all claims whatsoever, howsoever arising, ACS's liability shall not exceed:- (a) The value of the Goods which are the subject of the relevant transaction; or (b) Where the weight of the Goods which are the subject of the relevant transaction can be ascertained, 2 Special Drawing Rights (as defined by the International Monetary Fund) per kilogram of the gross weight of the Goods which have suffered loss or damage; or (c) $50,000.

Whichever shall be the least.

9.2 If any claim is made by the Customer against ACS for failure to arrange for Third Party Service Providers to adhere to any collection, delivery or other dates in accordance with a special arrangement made under clause 3.11 of these conditions or otherwise or for failure to arrange for Third Party Service Providers to effect collection, delivery or any other Services within a reasonable time, ACS's liability shall in all circumstances not exceed:- (a) The loss or damage suffered; (b) The Charges raised or to be raised by ACS in relation to the transaction from which the claim arises; (c) The sum of $50,000.

Whichever shall be the least.

9.3 ACS shall not, in any circumstances whatsoever, be liable for any consequential loss whatsoever, howsoever arising including but not limited to loss of profits (including both direct and indirect loss of profits), goodwill, market share, future or anticipated sales, loss of production or factory "down time", damages, costs and expenses incurred or payable by the Customer to any third party or any other indirect or consequential loss.

9.4 For the purposes of clause 9, the value of the Goods shall be taken to be their value upon the taking over the Goods by or on behalf of the Third Party Service Provider appointed by or on behalf of ACS or, or where the Goods are not taken over by such a Third Party Service Provider, upon the commencement of the Services.

9.5 If ACS is liable for a failure to adhere to an agreement under clause 3.12, ACS's liability shall be limited in accordance with clause 9.1 of these conditions.

9.6 By special agreement in writing, ACS may accept liability greater than the limits set out herein upon the Customer agreeing to pay such additional Charges as are required by ACS for accepting such increased liability.

10. Claims

10.1 Any claim against ACS for breach of ACS's obligations or duties, either contractual, tortuous, statutory or otherwise must be notified to ACS within 7 days of the date upon which the Customer became, or ought reasonably to have become, aware of any event or occurrence alleged to give rise to the claim.

10.2 If any claim is not notified to ACS in accordance with clause 10.1 above, such claim shall be waived and absolutely barred unless the Customer can prove that it was impossible for the Customer to comply with the time limit in clause 10.1 above and that the Customer made the claim as soon as it was reasonably possible for it to do so.

10.3 ACS shall, in any event, be discharged from all liability whatsoever and howsoever arising unless suit is bought and written notice thereof is given to ACS within 9 months from:- (i) The date of the event or occurrence alleged to give rise to the breach of duty, whether contractual, tortuous, statutory or otherwise; or (ii) Where the date of the aforementioned event or occurrence cannot be ascertained, the date of delivery or intended delivery of the Goods; or (iii) Where the Services do not require the delivery of Goods and no date of event or occurrence can be ascertained under clause 10.3 (i) above, the completion of the Services which give rise to the claim.

10.4 ACS will, on the Customer's request and at the Customer's expense, provide all reasonable assistance to the Customer in the case of a dispute between the Customer and any Third Party Service Provider.

10.5 Insofar as the Customer wishes to present a claim against a Third Party Service Provider, the Customer shall be responsible for presenting the claim to the Third Party Service Provider directly unless otherwise agreed in writing between the Customer and ACS.

11. Law and jurisdiction

11.1 These conditions and any contract or agreement between the Customer and ACS which is subject to these conditions and any dispute arising there under (including but not limited to disputes as to the validity of and the effects of such agreements, these conditions or any part thereof) shall be construed and resolved in accordance with English law.

11.2 The English courts shall have exclusive jurisdiction to hear and determine any dispute arising from or in relation to these conditions and any contract or agreement subject thereto including, but not limited to, any dispute as to the validity or interpretation of the contract or agreement or of these conditions.

11.2 The English courts shall have exclusive jurisdiction to hear and determine any dispute arising from or in relation to these conditions and any contract or agreement subject thereto including, but not limited to, any dispute as to the validity or interpretation of the contract or agreement or of these conditions