GENERAL TERMS & CONDITIONS
THE CUSTOMER’S ATTENTION IS SPECIFICALLY DRAWN TO CLAUSES 8 AND 9 HEREUNDER DEALING WITH LIMITATION OF LIABILITY AND INDEMNITIES.
Contents
1 DEFINITIONS AND INTERPRETATION
2 GENERAL CONDITIONS
3 SERVICES
4 CUSTOMER’S RESPONSIBILITIES AND WARRANTIES
5 INSURANCE
6 FEES AND PAYMENT TERMS
7 REMEDIES
8 LIMITATION OF LIABILITY – CUSTOMER ATTENTION REQUIRED
9 INDEMNITIES – CUSTOMER ATTENTION REQUIRED
10 CUSTOM CLEARANCE
11 ADVERTISING AND CONFIDENTIALITY
12 TERMINATION
13 EFFECT OF TERMINATION
14 FORCE MAJEURE
15 VARIATION AND WAIVER
16 NOTICES
17 SUBCONTRACT
18 GOVERNING LAW AND JURISDICTION
19 MISCELLANEOUS
- 1 DEFINITIONS AND INTERPRETATION1.1 DEFINITIONSIn these General Terms & Conditions and unless the context otherwise dictates, the following terms and phrases shall have the meanings set out below:“Additional Costs” will have the meaning ascribed to it at Clause 6.2.“Applicable Regulations” means all international conventions, statutes, regulations, by-laws, order, directions or other lawful requirements, industry codes or standards for the time being applicable to the performance of the Service Provider’s duties and obligations under this Contract.“Bloodstock” means any horse, or other animal or livestock and/ or equipment whatsoever in relation to which Services are provided.“Business Day” means a day normally worked by a company in the United Arab Emirates, not being a Friday or Saturday or Public and National Holidays.“CMR Convention” means the Convention on the Contract for the International Carriage of Goods by Road 1956, as amended.“Consignee” means the person whose name appears on a Consignment Note, as the party to whom a given Consignment is to be delivered by the Service Provider.“Consignment” means the Bloodstock and any good(s), package(s) and/or equipment for which the Service Provider is to arrange Services.“Consignment Note” means, in respect of a given Consignment, a document issued by or on behalf of the Service Provider evidencing or constituting the relevant contract of carriage by road, whether in paper or in electronic form.“Consignor” means the person whose name appears on a Consignment Note, as the party contracting with the Service Provider for the carriage of a given Consignment.
“Contract” means the agreement between the Service Provider and the Customer for any Services to be undertaken by the Service Provider on behalf of or at the request of the Customer.
“Customer” means (i) the Consignor, Consignee, receiver and owner of the Consignment; (ii) the holder of the Consignment Note or any person entitled thereto; (ii) any person owning or entitled to the possession of the Consignment; (iv) the respective agents, representatives, contractors, servants, officers or employees of any of the above persons; and (v) any other person or body corporate at whose request and/or on whose behalf the Service Provider agrees to perform the Services; in all cases jointly and severally.
“Failed Delivery” means where the Service Provider, in its reasonable opinion, is unable to deliver a Consignment or arrange for such Consignment to be delivered to the relevant consignee for reasons not attributable to the Service Provider, including where: (i) the relevant consignee does not take prompt delivery of the relevant Consignment for any reason whatsoever; or (ii) where the relevant Consignment cannot be delivered due to insufficient, incorrect or inadequate information, marking, documentation, or consignee details.
“Gross Negligence” means a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property or both; and such conduct is extreme when compared to ordinary negligence, which is a mere failure to exercise reasonable care.
“GT&C” mean these General Terms and Conditions.
“Parties” mean the Service Provider and the Customer collectively.
“Reasonable and Prudent Manner” means the exercise of a reasonable degree of skill, expertise, diligence and foresight which would from time to time be expected of skilled and experienced professional service providers engaged in similar undertakings of a similar type in connection with the logistics industry of a similar scale and circumstances and in accordance with reasonable industry professional standards and practices.
“SDR” means Special Drawing Rights, as defined and maintained by the International Monetary Fund.
“Services” means any and all services provided to the Customer by the Service Provider.
“Service Charge” means the fees and charges (including freight where applicable) payable by Customer to Service Provider for the provision of Services.
“Service Provider” means Equitrans Logistics LLC.
“Subcontractor” includes road transport operators, warehousemen, and any independent contractors employed by the Service Provider for the Services or whose services or equipment have been used for the Services, and any direct or indirect subcontractors, servants and agents thereof whether in direct contractual privity or not.
1.2 INTERPRETATION
In these GT&C:(a) the index and headings are for convenience only and shall not affect its
interpretation;
(b) reference to any gender includes the others, and words in the singular include the plural and vice versa;
(c) references to legislation include any statute, bye-law, regulation, rule, subordinate or delegated legislation or order, and reference to any legislation in force at the date of these GT&C is to such legislation as amended from time to time and to any legislation replacing it or made under it;
(d) reference to a person shall be construed so as to include an individual, firm, partnership, trust, joint venture, company, corporation, body corporate, unincorporated body, association, organisation, any government or state or any agency of a government or state, or any local or municipal authority or other governmental body; and
(e) the words “include”, “including” and “in particular” shall not be interpreted as limiting the generality of any foregoing words.2 GENERAL CONDITIONS
2.1 Unless expressly agreed in writing by the Service Provider, any and all Services by the Service Provider are always subject to these GT&Cs.
2.2 Where there is a conflict between these GT&Cs and any other contractual instrument applicable between the Service Provider and a Customer, the conflict shall be resolved in accordance with the following order of precedence:(a) any Consignment Note that may have been issued by the Service Provider;
(b) any specific agreement for Services between the Service Provider and the Customer; and
(c) these GT&Cs.3 SERVICES
Performance of Service3.1 Service Provider is a professional and experienced logistic service provider specializing in the transportation of Bloodstock.
3.2 The Service Provider may provide Services as agent on behalf of the Customer, and/or as principal carrier.
3.3 When acting as agent:(a) the Service Provider does not make or purport to make any contract with the Customer for the collection, storage, packing or handling, carriage, exportation/ importation clearances or any other associated service of any Bloodstock nor for any other physical service in relation to them; instead the Service Provider acts solely on behalf of the Customer in securing services by establishing contracts between the Customer and third parties;
(b) At the Customer’s written request, the Service Provider will provide evidence of any contract negotiated with a third party on the Customer’s behalf. Such contracts will be in the name of the Service Provider and/ or the Customer, but for the account of the Customer; and
(c) The Service Provider shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders.3.4 The Service Provider will be deemed to act as principal carrier only when it issues a Consignment Note directly to the Customer, and only in respect of the carriage set out in that Consignment Note. In all other cases, and for all other Services (including Services ancillary to any given carriage), the Service Provider will be deemed acting as the Customer’s agent.
Customer Requirements and Service Provider quotations
3.5 The Customer will communicate to the Service Provider its requirement for Services (or various aspects thereof) in writing. Where the Service Provider wishes to provide the requested Service, it shall issue a quotation for acceptance by the relevant Customer. All quotations issued by the Service Provider are made based on the written information and instructions provided by the Customer and, until and unless accepted by the Customer, shall be without any obligation on the Service Provider’s part.
Services to be Performed
3.6 When acting as principal carrier, the Service Provider shall at all times have absolute freedom and discretion to determine, without notice to the Customer:
(a) shipping routes and procedure;
(b) modes and type of transport; and
(c) Consignment safe keeping, handling, boarding, loading, unloading and transportation.3.7 Similarly, when acting as agent, the Service Provider shall be entitled, and the Customer hereby expressly authorizes the Service Provider such entitlement, to enter into contracts on behalf of the Customer and its principal (where applicable) and to arrange (as the Service Provider deems appropriate):
(a) for the carriage of the Consignment by any route or means or person it deems appropriate, and at the cost it deems appropriate;
(b) for the collection, packing and/ or handling, safe keeping, boarding, loading, unloading and transportation of the Consignment by any person at any place and for any length of time;
(c) for the hiring of grooms to accompany the Bloodstock as and when necessary, but at the complete discretion of the Service Provider; and
(d) do such acts as may in the opinion of the Service Provider be reasonably necessary in the performance of its obligations in the interests of the Customer and its principal (where applicable).3.8 Any contract of carriage between the Customer and a third party carrier shall be in accordance with the terms and conditions of such carrier, where applicable.
3.9 The Service Provider will not accept or deal with Bloodstock of a dangerous or damaging nature or with Bloodstock suffering from infectious or contagious disease or which may have been in contact with other infected animals. The Service Provider shall have complete discretion to reject Bloodstock for any such reason, or in the event Bloodstock is ultimately rejected by the carrier for similar reasons any costs incurred or due and owing to the carrier or other service provider(s) shall be for the Customer’s account.
3.10 The Service Provider shall not be bound to recognize any title to the Bloodstock in any person other than the Customer or its principal where prior written notice and evidence has been provided. However, should Service Provider receive evidence that title to the Bloodstock rests with a third party (i.e. not the Customer or its principal) then the Service Provider may, at their complete discretion, act upon such actions and take all reasonable steps which the Service Provider deems appropriate.Boarding
3.11 When in the Service Provider’s opinion it is reasonably necessary to do so, the Service Provider may board Bloodstock that is in transit or awaiting shipment either at a facility of its own or at a third party boarding facility.
3.12 The Service Provider will, where appropriate also board Bloodstock when it has been specifically requested in writing to do so by the Customer.
3.13 When boarding Bloodstock on behalf of Customer the Service Provider shall, whether using its own facilities or those belonging to a third party, make reasonable charges for the provision of such boarding facilities; similarly, the cost of all associated expenses incidental to boarding, including medicine or veterinary examination, re-examination require by the import regulations or the country of destination shall be payable by the Customer without prejudice to the Service Provider’s rights against any other third party.Additional Services
3.14 At the Customer’s request, and subject to Service Provider’s acceptance, Service Provider may provide or procure the provision of additional services. The provision of these additional services will be at a fee to be mutually agreed between the Parties and subject to the provisions of these GT&C.
Standard of Performance
3.15 Service Provider will perform the Services in:
(a) a Reasonable and Prudent Manner; and
(b) accordance with all Applicable Regulations.3.16 Service Provider shall keep full and proper records for a period of eighteen (18) months from the date of the provision of Services showing all transactions and proceedings relating to the Services provided hereunder.
3.17 Service Provider shall immediately notify the Customer of any accidents or damages which involve the Consignment, following which Service Provider will take all reasonable steps to mitigate any losses.4 CUSTOMER’S RESPONSIBILITIES AND WARRANTIES
Customer Responsibilities
4.1 In consideration of Service Provider obligations under the Contract and performance of such Services, Customer shall throughout the term of the Contract:
(a) pay Service Provider the Service Charges as agreed and in accordance with Clause 6 below;
(b) save where the same is caused by the sole negligence of or breach of Contract by the Service Provider, the Customer shall be liable for all Additional Costs arising out of the provision of Services and shall indemnify the Service Provider against any such outlay that the Service Provider may be required to pay on the Customer’s behalf;
(c) provide the Service Provider with personnel, as and when needed, to facilitate and assist the Service Provider in performing the Services hereunder;
(d) provide all other such assistance to the Service Provider where reasonable to do so in order to facilitate and assist the Service Provider to provide the Services; and
(e) obtain and supply to the Service Provider any and all documentation required by the Service Provider and the authorities in any country of exportation or importation through which the Consignment is to pass, including but not limited to: import and export licenses; veterinary certificates; and identification papers. The Service Provider shall not be responsible for any delay or loss arising from the Customer’s failure to provide these documents upon request, nor in the event there are any discrepancies with any of the documentation supplied.Customer Warranties
4.2 Customer warrants, undertakes and represents to the Service Provider that:
(a) it is either the owner or authorized agent of the owner of the Bloodstock and if the latter that it has the full authority of his principal to enter into the Contract;
(b) it will give all necessary instructions in good time and warrants the accuracy of any information provided, including, but not limited to:
(i) the Customer shall give complete disclosure of the Bloodstock’s full travel history concerning any accident(s) and/ or incident(s) where the Bloodstock was either a danger to itself and/or other Bloodstock and/or property;
(ii) the Customer shall advise if the Bloodstock is pregnant and the estimated date of foaling;
(iii) the Customer shall advise of any special travel requirements which must be complied with, including where travel spaces / stalls larger than one third (i.e. 70 cms in width, maximum) are necessary to either accommodate the physical dimensions of the Bloodstock or the temperament / behaviour of the Bloodstock (if such instructions are not provided then it is considered that no special requirements are required, including travel spaces / stalls larger than one third (1/3);
(c) no equipment for which Services are to be provided comprises, contains or is packaged in any dangerous, noxious or illegal substance whatsoever; and does not include military equipment, arms, ammunition and/or nuclear materials;
(d) if Bloodstock is accepted on delivery and without any objection being made prior to delivery, the Customer is deemed to confirm that such Bloodstock is healthy and uninjured;
(e) save to the extent the Service Provider receives prior written notification to the contrary, the Customer warrants that the Bloodstock is in all respects fit for purpose, to be so dealt with and capable of enduring normal transit without damage or injury and, in particular, is free of disease or infestation of any description whatsoever and has not to the knowledge of the Customer been in contact with any diseased or infected animal(s) within the previous 60 (sixty) days;
(f) the Customer may at any time cancel the request for Services before the Service Provider concludes the transportation contracts, in which case the Customer will reimburse the Service Provider for the expenses incurred and compensate for the work performed, and in case of consolidations could be liable for a percentage of airfreight and/or any other charges which might be applicable;
(g) in the event the Bloodstock is unable to travel due to unforeseen circumstances beyond the control of either the Service Provider or the Customer, the Customer may elect to either pay the additional costs incurred by the Service Provider to arrange replacement transportation or alternatively wait until another consignment of Bloodstock is ready to be transported; and
(h) the Contract constitutes valid and binding obligations on Customer and Customer has full power to enter into and perform its obligations under the Contract and has taken all necessary corporate and other actions to approve and authorize the transactions contemplated by this Contract and Customer’s representative agreeing this Contract has full power, competency and authority to do so.4.3 The Customer acknowledges the Service Provider’s complete discretion to act upon such actions and take all necessary steps which the Service Provider deems appropriate should the Service Provider be provided with evidence that a third party (i.e. not the Customer or its principal) has clean title to the Bloodstock, as per Clause 3.10 above. In such cases, the Customer will hold the Service Provider harmless and will indemnify and keep them indemnified against all liabilities and costs whatsoever arising from or in connection with the Bloodstock belonging to a third party and/or whatever action is taken by the Service Provider as a result thereof.
5 INSURANCE
5.1 Unless otherwise agreed in writing, the Customer shall, at its own expense, procure and maintain for the period during which the provision of Services are provided any insurance(s) deemed necessary, including but not limited to Bloodstock insurance.
5.2 Unless otherwise agreed in writing, the Service Provider will not procure bloodstock insurance for the horse(s) and it will be assumed that the horse(s) for which Services are to be provided are fully insured by their owners or that their owner does not require such insurance to be obtained for the period during which Services hereunder are provided.6 FEES AND PAYMENT TERMS
Fees
6.1 The Customer will pay the agreed Service Charge. In the event the Service Charge is to be adjusted as a result of a change in the requirements of the Customer or as a result of an adjustment in a third party’s costs and/or charges, the Service Provider will provide written notification to the Customer who in turn agrees to accept these changes, unless it is wholly unreasonable to expect them to do so.
6.2 The Service Charge referred to in this Contract does not include (exclusive of):(a) any goods and services tax, and any other tax, duty or fee imposed from time to time by any government or other authority, including custom duties; or
(b) any fines, penalties, interest, costs, disbursements, expenses, and third party charges arising out of or in connection with any Consignment and/or the Services, all of which will be for the Customer’s account (together “the Additional Costs”)Payment terms
6.3 Service Provider shall invoice the Customer for the Services Charges and those Additional Costs where applicable. Unless agreed in writing otherwise:
(a) all invoices raised by Service Provider prior to the start of the Services to which they relate shall be due when issued and be paid by Customer, by return and before the performance of the Services, without any set-off or deduction whatsoever; and
(b) all invoices raised by Service Provider after the start of the Services to which they relate will be paid by the Customer within Thirty [30] calendar days of the date of such invoice or otherwise agreed in writing with the customer.6.4 If Customer fails to make any payment due to the Service Provider in full when due, then, without prejudice to any other right or remedy, Service Provider shall be entitled to charge Customer interest on any unpaid amount at 4% above the UAE Interbank Interest Rate for two months Dirham deposits from time to time in force. Interest will be charged monthly until payment is made.
6.5 All payments under the Contract and these GT&C shall be made by(a) electronic transfer to the bank account of Service Provider specified in the relevant invoice, quoting the invoice number against which the payment is made or (b) by cheque (not post-dated).
6.6 All payments to the Service Provider shall be made without any deduction or withholding other than as required by mandatory law or regulation. Where any deduction or withholding is required by mandatory law or regulation, the Customer shall increase the amount payable to the Service Provider to reflect the amount that the Service Provider would have received if no deduction or withholding had been made. No assertion of any credit, set-off or claim or counterclaim against the Service Provider can be made to justify withholding payment of any amount, whether in whole or in part.
6.7 Customer should report any disputes on the invoices submitted by the Service Provider within seven (7) working days from the time the invoice is received by the Customer, specifying the reason for disputing the invoice, and providing all evidence in support. Failing this, the Customer will be deemed to have waived any right to challenge the relevant invoice. The Customer shall, in any event, pay any undisputed portion of the invoice by the due date.
6.8 Without prejudice to any right or remedy that the Service Provider may have against any Customer, the Consignor guarantees the payment to the Service Provider of any Service Charges or Additional Cost that may be due to or imposed on the Service Provider under or in connection with any Services or these GT&Cs. When Consignments are accepted or dealt with upon instructions to collect Service Charges or Additional Cost from the Consignee or any other person the Consignor shall remain responsible for the same if they are not paid by such Consignee or other person immediately when due.
6.9 When outstanding monies due and owing to the Service Provider have to be recovered from the Customer then all costs and expenses, legal or otherwise, connected with such recovery shall be borne by the Customer on an indemnity basis and the Customer hereby agrees to indemnify the Service Provider for such costs and expenses.
Provision of credit6.10 Where the Service Provider has agreed to extend credit to the Customer payment shall be within thirty (30) days of the date of the invoice without any set-off or deduction whatsoever.
7 REMEDIES
Suspension
7.1 Without prejudice to any other rights that the Service Provider may have, the Service Provider reserves the right to suspend immediately, at its discretion, and without liability or court order, all or part of any Services where:(a) payment of any amounts due to it has not been made when due;
(b) the Customer breached its undertakings and/or warranties in Clause 4 above (Customer’s responsibilities and warranties); or
(c) the nature or condition of the Consignment adversely affects or is likely to adversely affect the Service Provider’s performance of any Services, without fault or negligence by the Service Provider, and in a way which the Service Provider cannot avoid by the exercise of reasonable endeavour.Lien and disposal of Consignment
7.2 Service Provider shall have a lien on the Bloodstock and any documents relating thereto for any amount payable to Service Provider under the Contract or these GT&C and for all previously unsatisfied debts whatsoever due to Service Provider by Customer, and for any losses or liabilities that Service Provider may have incurred due to Customer’s negligent acts or omissions, and for that purpose shall have the right to enforce such lien in any manner, including selling the Bloodstock, without a court order, by public auction or private treaty.
7.3 In furtherance of the above, and without prejudice to other rights or remedies, in case of: (i) unpaid amounts due to the Service Provider; (ii) Failed Delivery where the Consignor refuses to take redelivery of the relevant Consignment promptly following written request by the Service Provider; or (iii) any other reason whatsoever not attributable to the Service Provider and delaying the Consignment in the Service Provider’s possession; the Service Provider may take such steps as it sees fit to protect its and other parties’ interest, at the Customer’s risk and cost, including but not limited to:
(a) the destruction of all or any part of the Consignment;
(b) the abandonment, storage or boarding of all or any part of the Consignment in any location the Service Provider deems appropriate. This will constitute due delivery hereunder and thereupon all of the Service Provider’s obligations in respect of such Consignment shall cease; or
(c) the sale of all or part of the Consignment (by direct sale, auction or otherwise as the Service Provider may deem reasonable),
without court order to that effect, or liability to the Customer.
7.4 Where the Service Provider sells the Consignment pursuant to Clauses 7.2 and 7.3 above, the Service Provider has the right to apply any sale proceeds towards the balance of any payments due to the Service Provider.
7.5 Any liabilities, costs and expenses, including any legal costs, as well as fines, penalties, charges and taxes associated with any steps taken pursuant to Clauses 7.2 and 7.3 above shall be borne by the Customer and may be deducted by the Service Provider from any proceeds of sale of the Consignment. The Customer will indemnify the Service Provider in this regard immediately upon first written demand.
7.6 Where a Consignment must be redelivered to the Customer by the Service Provider for any reason whatsoever, including at the Customer’s request or in case of Failed Delivery, all Service Charges and/or Additional Costs associated with such redelivery are to be borne by the Customer.8 LIMITATION OF LIABILITY – CUSTOMER ATTENTION REQUIRED
8.1 Under no circumstances whatsoever will the Service Provider ever be liable for:(a) Any loss of profit, use, sales, revenue, business, contracts, goodwill, reputation or anticipated savings; or
(b) Any loss or liability that is indirect or consequential.8.2 In addition, the Service Provider shall be relieved of liability for any loss or damage whatsoever if and to the extent that such loss or damage arises out of or in connection with:
(a) Carriage of Bloodstock, where the Service Provider took all steps normally incumbent on him in the circumstances and acted in accordance with reasonable instructions given by the relevant Customer sufficiently in advance;
(b) the Customer’s inaccurate description, identification, numbering or marking of the Consignment;
(c) the Customer’s failure to clearly identify the name, location and contact details of the relevant consignee of the Consignment;
(d) inherent defect in any part of the Consignment;
(e) any feature, condition or nature of the Consignment themselves, whether defective or not;
(f) any act or omission by the Customer or by any person acting on its behalf;
(g) Failed Delivery;
(h) Strike, lock-out, stoppage or restraint of labour, the consequences of which the Service Provider is unable to avoid by the exercise of reasonable diligence; or
(i) Any cause or event which the Service Provider is unable to avoid and the consequences whereof the Service Provider is unable to prevent by the exercise of reasonable diligence.8.3 Without prejudice to Clauses 8.1 and 8.2:
(a) To the extent that the Service Provider is acting as principal carrier:
(i) The Service Provider’s liability to the Customer arising out of or in connection with the relevant carriage shall be limited and/or excluded as set forth in the relevant Consignment Note; and
(ii) the CMR Convention will otherwise apply, in conjunction with the terms of these GT&Cs, which GT&C terms will supplement the CMR Convention, to the extent that they do not conflict, or are not inconsistent therewith;
(b) Where acting as agent:
(i) The Service Provider shall not be liable for the destruction of, or damage to or delay in delivery of the Bloodstock in question, save where the destruction, damage or delay is directly related to the Gross Negligence of or fraud by the Service Provider in performing the Services hereunder.
(ii) The Bloodstock is accepted by the Service Provider at the sole risk of the Customer and/ or its principal (where disclosed) and the Service Provider shall be under no liability whatsoever, whether in contract or otherwise, for the death, injury, illness or escape thereof, howsoever arising, nor for any loss or damage whatsoever suffered by the Customer or any third party claiming by any action performed or omitted by the Service Provider, its servants or agents in connection with the Bloodstock.
(c) Where clause (b) does not apply or to the extent that any of its terms are set aside for any reason whatsoever, the Service Provider’s total liability (if any) to a Customer, whether arising from breach of contract or otherwise, shall be limited to:
(i) for claims arising out of or in connection with loss or damage to a Consignment, SDR8.33 per kilogram of the gross weight of any Consignment (or part thereof, as applicable) that is lost or damaged;
(ii) for claims arising out of or in connection with delay to a Consignment, the Service Charges that were agreed for the underlying Service in relation to which the claim arose;
(iii) for all other claims, the lower of:
(A) The value of the relevant direct loss; or
(B) the Service Charges and Additional Costs paid for the Service relating to the relevant claim.8.4 Without prejudice to the above, unless otherwise expressly agreed in writing, and subject to any Applicable Regulations, delivery times are not guaranteed and the Service Provider does not undertake that the Consignments shall depart, arrive, or be available on particular dates or take a particular route. The Service Provider, therefore, has no liability for delay. If, notwithstanding this clause 8.4, the Service Provider is nevertheless found liable for delay, its liability shall in no circumstances exceed the amount set out under clause 8.3(c)(ii) above.
8.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these GT&C.
9 INDEMNITIES – CUSTOMER ATTENTION REQUIRED
9.1 If the Bloodstock causes damage to or destruction of another shipment or property, the Customer shall hold harmless and indemnify the Service Provider for all losses and expenses arising therefrom. Any Bloodstock (or part thereof) which, for whatever reason, is likely to endanger persons or property (including the mode of transport) may be abandoned or destroyed by the Service Provider without liability attaching to the Service Provider.
9.2 Customer shall hold harmless and keep the Service Provider, its officers, directors, agents, and employees indemnified from and against:(a) Any claim, damage, loss, liability or expense which Service Provider may suffer or incur in respect of damage to any property, or injury to or death of personnel, insofar as the claim, damage, losses, liability or expense are not attributable to the negligent acts or omissions of Service Provider;
(b) Any liability, loss, damage, costs and expenses whatsoever arising from any of the events listed at clause 8.2, breach of the Customer of any term contained herein or from any act or omission of the Customer, its employees, agents;
(c) Any loss or liability caused to Service Provider due to inadequate or inaccurate documentation prepared by or on behalf of Customer, or as a result of government action in relation thereto;
(d) Any liability, loss, damage, costs and expenses whatsoever arising from the use by Service Provider of any equipment provided or procured by the Customer for use by Service Provider in connection with the performance of Service Provider’s obligations under this contract and these GT&C;
(e) all liabilities arising directly out of any breach by the Customer of the warranties given in clause 4.2; and
(f) Save as to the extent that such is caused by fault or negligence of Service Provider, the Customer shall be liable for and shall defend, indemnify and hold harmless Service Provider, its officers, directors, agents, servants and employees from liability and/or claims against them based on injury to any person, damage or loss of property, or any other damages arising from any wilful or negligent act or omissions of the Customer, its employees, agents or sub-contractors.9.3 Without prejudice to any of the terms in these GT&Cs, if the Service Provider finds itself, whether by Applicable Regulation or otherwise, in any country, jointly or severally liable for any liabilities of the Customer or any other party seeks to hold the Service Provider liable for any liabilities of the Customer, then such Customer shall fully indemnify the Service Provider and hold it harmless for any claims, damages, losses, costs and expenses (including but not limited to legal expenses) arising out of or in connection thereof and shall not in any way assert any claim for a contribution from the Service Provider.
9.4 The Customer undertakes not to make any claim against any director, manager, servant or agent of the Service Provider and to indemnify the Service Provider against all such claims, and resulting costs and expenses howsoever arising and by whomsoever made.10 CUSTOM CLEARANCE
10.1 Where the Service Provider provides customs clearance Services, the Service Provider does so as the Customer’s agent. The Customer agrees that it has sole liability for errors in customs declarations, documentation and applications made on its behalf by the Service Provider, unless such errors are the result of the Service Provider’s breach of these GT&Cs, negligence, wilful misconduct or fraud.
10.2 The Customer will be responsible for paying any and all custom other import/export tax/duties immediately upon demand.
10.3 The Customer undertakes to indemnify the Service Provider, immediately upon first written demand, of any and all claims, liability, costs, charges, disbursements and expenses, including fines, penalties, tax, duties (including Custom Duties) and levies, that the Service Provider may incur in performing customs clearance Services on behalf of the Customer.11 ADVERTISING AND CONFIDENTIALITY
11.1 The Parties may disclose to third parties that the Service Provider is an authorised service provider for Customer but the Parties shall not disclose details of the Services provided to third parties.
11.2 Each party shall protect the confidentiality of information provided by the other party, or to which the receiving party obtains access by virtue of its performance under the Contract or the GT&C, that either has been identified as confidential by the disclosing party or by its nature warrants confidential treatment. The receiving party shall use such information only for the purposes of the Contract or the GT&C and shall not disclose it to anyone except its employees who have a need to know the information.
11.3 These nondisclosure obligations shall not apply to information that is or becomes public through no breach of the Contract or the GT&C, is received from a third party free to disclose it, is independently developed by the receiving party or is required by law to be disclosed, provided that in the event disclosure is required by law, the receiving party shall provide the disclosing party with prompt written notice of the disclosure required, and shall assist the disclosing party, at the disclosing party’s request, in obtaining a protective order in respect of such disclosure.
11.4 Confidential information shall be returned to the disclosing party upon its request, except that each party may retain one copy in its legal files solely for purposes of documenting its compliance with its obligations hereunder.12 TERMINATION
12.1 The Contract may be terminated by cause by immediate notice in writing:(a) by either party to the other, where the other party has committed a material breach of the Contract or these GT&C and has failed to remedy the breach within thirty (30) days of receipt of notice from the other party requesting such remedy;
(b) by either party with immediate effect if the other party is unable to pay its debts as they fall due or an order is made or a resolution passed for its liquidation, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer is appointed over all or any substantial part of its assets or takes formal steps towards making any kind of composition, compromise or arrangement involving it and any of its creditors or anything analogous to the foregoing shall occur in any jurisdiction; and
(c) by Service Provider where invoice(s) due to Service Provider remain unpaid by the Customer for more than thirty (30) days after the same became due, provided that Service Provider has demanded payment by notice to the Customer and the invoice(s) have remained unpaid for seven (7) days or more following such notice.
12.2 Any termination of the Contract or these GT&C (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of the Contract or the GT&C which is expressly or by implication intended to come into or continue in force on or after termination.13 EFFECT OF TERMINATION
13.1 In case of termination of any Services as per Clause 12 above, the Customer will promptly accept redelivery of all relevant Consignments still in the Service Provider’s possession, at a place which the Service Provider will deem reasonably safe and convenient. All costs of such redelivery are to be borne by the Customer.
13.2 Should the Customer fail to take redelivery of its relevant Consignments pursuant to Clause 13.1 above within twenty-one (21) calendar days of the date of the relevant termination, the Parties agree that all such Consignments will be deemed abandoned by the Customer. The Service Provider will have complete liberty to dispose of such Consignments as it deems fit and without the need for a court order. All proceeds generated from the disposal of such Consignments may be applied by the Service Provider against any amounts due to it by the Customer.14 FORCE MAJEURE
14.1 If either party is prevented from carrying out its obligations under the Contract or these GT&C by reason of Force Majeure, which in the case of the Contract or these GT&C shall mean any act of God or nature, riots, strikes, lock-outs, wars and similar events beyond the reasonable control of the Parties, then the party affected by the Force Majeure event shall immediately notify the other party and undertakes to do all things reasonable in the circumstances in co-operation with the other party, to carry out its obligations as nearly as possible in conformity with all the terms and conditions of the Contract and these GT&C and shall take steps appropriate in the circumstances to minimize the losses which may be incurred by both Parties.
14.2 In the event that the Force Majeure conditions continue for a period of two (2) months or more, then either party may terminate the Contract or the GT&C by immediate notice to the other party.15 VARIATION AND WAIVER
15.1 No variation of the Contract or these GT&C and no agreement at variance with any of the terms and conditions hereof shall be binding on the Parties hereto unless contained in writing and signed by them (including their respective agents duly authorised hereto).
15.2 No employee of the Service Provider has the Service Provider’s authority to alter or vary the terms of the Contract.
15.3 Failure or delay by either Party to exercise any of its rights under the Contract or these GT&C shall not be deemed to be a waiver thereof and shall not preclude the exercise of such right in the future.16 NOTICES
16.1 All notices hereunder shall be in writing, shall be by commercial courier, hand delivery, email and/or fax, and shall be deemed to have been duly given:(a) when delivered, if delivered by commercial courier or hand delivery, during normal business hours of the recipient; and
(b) when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated.17 SUBCONTRACT
17.1 The Customer agrees that any direct or indirect Subcontractor, servant, agent or other person whose services have been used by or on behalf of the Service Provider in order to perform the Services, have the benefit of these GT&Cs, including in relation to liability.
17.2 The Service Provider may subcontract all or part of any Services to any third party at its discretion and without notice to the Customer.18 GOVERNING LAW AND JURISDICTION
18.1 Unless otherwise agreed in writing, any claim or action against the Service Provider is subject to the laws of the United Arab Emirates and to the exclusive jurisdiction of the Dubai courts (excluding the DIFC). This is without prejudice to the Service Provider’s right to commence and pursue proceedings and to take legal action against the Customer in any court of competent jurisdiction anywhere in the world.19 MISCELLANEOUS
19.1 It is agreed and understood between the Parties hereto, that Service Provider is free to provide similar services to customers other than Customer pursuant to any separate agreement.
19.2 The Service Provider may, at its discretion, and without prior notice, delegate or subcontract part or all of any Services to any third party.
19.3 The Contract and these GT&C shall apply to and bind the successors and assignees of the Parties hereto.
19.4 If any provision of the Contract and these GT&C is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Contract and these GT&C and rendered ineffective as far as possible without modifying the remaining provisions of the Contract and these GT&C, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract and these GT&C.
19.5 The Contract and these GT&C shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Contract and these GT&C.
19.6 The Contract and these GT&C constitute the entire agreement between the Parties relative to the Services and supersedes all prior agreements, arrangements and negotiations between the Parties in respect of its subject matter.