Standard Terms for Warehousing Services
1. DEFINITIONS
Company means ARROW EXPRESS LIMITED.
Customer means any person having rights or obligations under the contract of Warehousing Services concluded with the Company or as a result of his activity in connection with such services.
Goods means any property as well as containers, pallets or similar articles of transport or packaging not supplied by the Company.
SDR means Special Drawing Right as defined by the International Monetary Fund.
In writing includes telegram, telex, telefax or any recording by electronic means.
Valuables means bullion, coins, money negotiable instruments, precious stones, jewellery, antiques, pictures, works of art and similar properties.
Dangerous Goods means Goods which are officially classified as hazardous as well as Goods which are or may become dangerous, inflammable, radioactive, noxious or damaging nature.
2. WARRANTY OF AGENCY
The Customer warrants that it is either the owner of the Goods or is authorised by such owner to accept these Conditions on the owner’s behalf.
3. CUSTOMER’S UNDERTAKINGS
3.1 The Customer undertakes that:
(a) When presented for warehousing, the Goods shall be securely and properly packed in compliance with the statutory regulations or official or recognised standards and in such condition as not to cause damage or injury or the likelihood of damage or injury to the property of the Company or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or otherwise howsoever.
(b) Before presentation of the Goods for warehousing, the Customer will inform the Company in writing of any special precautions necessitated by the nature, weight or condition of the Goods and any statutory duties specific to the Goods with which the Company may need to comply.
(c) It will reimburse all duties and taxes that the Company may be required to pay in respect of the Goods, except to the extent that the Company is required to accept responsibility for them in accordance with Art. 3.
(d) Unless prior to acceptance of the Goods by the Company, the Company receives written notice containing all appropriate information, none of the Goods are Valuables, Dangerous Goods, Human Remains, Live Animals or Plants.
(e) Unless prior to acceptance of the Goods by the Company, the Company receives written notice containing all appropriate information, none of the Goods are or contain substances the storage of which would require the obtaining of any consent or licence or which, if they escaped from their packaging, would or may cause pollution of the environment or harm to human health.
3.2 Notwithstanding any notice under Art. 4.3, if there is a breach of contract by the Customer, the Customer will indemnify the Company against any loss or damage it suffers which is related to the breach, and the Company’s reasonable charges for, dealing with the breach and its consequences. The Customer will pay an extra storage charge equal to the amount of any fine or penalty payable by the Company wholly or partly as a result of a breach by the Customer of this contract. If the Company suspects a breach of warranty in Art. 2 or of any undertaking in Art 3.1, it may demand the immediate removal of any goods held for the Customer, or itself arrange their removal without notice, at the Customer’s expense.
4. COMPANY’S LIABILITY FOR GOODS AND OTHER LOSSES
4.1 Except as provided in Art. 4.3 below, the Company does not insure the Goods and the Customer shall make arrangements to cover the Goods against all risks to the full insurable value thereof.
4.2 The Company excludes all liability for any claim relating to the loss, damage, deterioration, delay, non-delivery, mis-delivery, unauthorised delivery or miscompliance with instructions of or to or in connection with the Goods (“Claim”). This exclusion does not apply if a claim arises from the neglect or wilful act or default of the Company, its employees (acting in furtherance of their duties as employees) or subcontractors (acting in furtherance of their duties as subcontractors). In any case, the Company’s liability shall not exceed a total of 10SDR per tonne weight of part of that of the Goods in respect of which a claim arises. In no case shall the Company be liable for any loss of profit or indirect or consequential loss of any kind.
4.3 The limit of liability in Art. 4.2 may be increased by written notice, in which event:
(a) The Customer shall give written notice to be received by the Company at least 7 days before the date on which the increased liability is required to be operative and shall specify the nature and the maximum value of the Goods to be at risk inclusive of duty and taxes paid or payable thereon. Under no circumstances will the Company’s liability to the Customer exceed the value given under this notice.
(b) The Customer shall accept an increase in the Company’s charges to cover the costs incurred in insuring against the Company’s additional liability hereunder.
4.4 (a) The Company shall not be liable for any Claim unless it has received written notice of the Claim from the Customer within 21 days (7 days in the case of subcontract carriage) of the cause of the Claim coming to Customer’s knowledge or of the Goods being delivered by the Company to or to the use of the Customer, whichever is the later.
(b) No legal proceedings may be brought against the Company unless they are issued and served, and no counterclaim may be raised unless full written details are received by the Company, within 9 months of the event giving rise to the Claim.
4.5 The Company shall not be liable hereunder for any loss or damage to the extent that the same is caused or contributed to by a breach of any of the Customer’s warranties and undertakings (or by any of the circumstances by virtue of which the Company is relieved of it’s contractual obligations in accordance with Art.9).
5. EMPLOYEES AND SUBCONTRACTORS
5.1 The Customer and the Owner of the Goods will not take any proceedings against any employee or subcontractor of the Company for a Claim.
5.2 Without prejudice to Art. 5.1, if an employee or subcontractor pays or is liable to make a payment to the Customer or Owner of the Goods in connection with a Claim, the Customer and the Owner of the Goods will each fully indemnify the Company against any claim (including all costs and expenses) by the employee or subcontractor against the Company for reimbursement of or indemnity against that payment to the extent that it exceeds 10SDR per tonne weight of that part of the Goods the subject of a Claim or any higher figure agreed under Art. 4.3.
5.3 The Company shall be entitled to subcontract all or any part of its business and in this event these Standard Terms shall apply to such services.
6. CHANGE OF CUSTOMER
The Customer may give written authority for the Goods or any part thereof to be transferred by the Company to the account of another party but subject to the Customer ensuring before the effective date of the transfer that such other party notifies the Company in writing that it is to become the Customer and is to be bound by these Standard Terms and by any notice given under Art. 4.3(a). Further, the Customer agrees to continue paying the Company’s charges until receipt by the Company of the other party’s notification.
7. CHARGES, PAYMENTS AND LIEN OR SIMILAR CHARGE
The Company’s charges, which may be increased from time to time by at least 21 days’ prior notice to the Customer, shall be payable free from any deductions at such periodic intervals as may have been agreed between the parties and in any event on the earlier of (a) the expiry of any agreed period of credit and (b) the time immediately before the removal of the Goods from the company’s custody or control. Further, the Company shall have on the Goods a particular lien or similar charge, as well as a general lien, entitling it to retain the Goods as security for payment of all sums due from the Customer on any account (relating to the Goods or not). Storage charges shall continue to accrue on any of the goods detained under lien or similar charge.
8. TERMINATION
8.1 The Goods shall be removed by the Customer from the Custody or control of the Company at such date as may have been agreed between the parties. In the absence of such agreement, and otherwise where reasonably necessary, the Company may at any time by notice in writing to the Customer require the removal of the Goods within 28 days from the date of such notice or, in the case of perishable goods, within 3 days.
8.2 In the event of failure by the Customer to pay any amount due to the Company or to remove any of the Goods from the custody or control of the Company (notice in accordance with Art. 8.1 having been given) at the due time, the Company may, without prejudice to its other rights and remedies against the Customer, give notice in writing to the Customer of the Company’s intention to sell or otherwise dispose of the Goods at the Customer’s entire risk an expense if such amount is not paid and/or such Goods are not removed within 28 days, or in the case of perishable goods within 3 days from the date of such notice. On the expiry of such period, if such payment has not been made and/or the Goods have not been so removed the Company shall be entitled to sell or otherwise dispose of all or any part of the Goods at the Customer’s entire risk and expense by the best method reasonably available, and the proceeds of any sale or disposal shall be remitted to the Customer after deduction therefrom of all expenses and all amounts due to the Company from the Customer on any account.
8.3 In the case of perishable goods, notice under Art. 8.2 may be combined with a notice under Art. 8.1.
9. FRUSTRATION OF CONTRACT
The Company shall be relieved from its contractual obligations to the extent that their performance is prevented by, or their non-performance results wholly or partly, directly or indirectly from the act, neglect, or default of the Customer, including any breach by the Customer of these Standard Terms, or by storm, flood fire , explosion, breakdown or failure of plant and/or machinery, riot, civil disturbance, industrial dispute, labour disturbance or cause beyond the reasonable control of the Company.
10. GENERAL
10.1 Each exclusion or limitation in these Standard Terms exists separately and cumulatively.
10.2 When reasonably necessary and at the discretion of the Company the Goods may be carried, stored or handled with other compatible goods or transferred between stores.
10.3 Any notice or statement of account given by the Company to the Customer shall be duly given if left at or sent by first class post to the last known address of the Customer or by facsimile to the last notified number and such notice or account shall if posted be deemed to have been given 2 working days after posting and, if by facsimile, the next working day.
10.4 The Customer shall be deemed to have guaranteed to the Company the accuracy, at the time the Goods were taken in charge by the Company of all the particulars relating to the general nature of the Goods, their marks, number, weight, volume and quantity and, if applicable, to the dangerous character of the Goods, as furnished by him or on his behalf.
10.5 Except to the extent that the Company is liable according to the provisions of these Standard Terms, the Customer shall indemnify the Company for all liability incurred in the performance of the Warehousing Services hereunder.
10.6 The Customer shall be liable to the Company for all loss or damage, costs, expenses and official charges resulting from the Customer’s inaccurate or incomplete information or instructions or the handing over by the Customer or any person acting on his behalf to the Company or to any other person to whom the Company may become liable, of Goods having caused death or personal injury, damage, environmental damage or any other type of loss.
11. APPLICABLE LAW
Unless otherwise agreed, these Standard Terms shall be governed, construed an interpreted in accordance with Maltese Law.
12. ARBITRATION
Any dispute arising under these Standard Terms shall be referred to arbitration in Malta, one arbitrator to be nominated by the Freight Forwarder and the other by the Customer, and in case the arbitrators shall not agree, then to the decision of an Umpire to be appointed by them. The award of the Arbitrators or the Umpire shall be final and binding on both parties.
If either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint another arbitrator in his place.
If one party fails to appoint an arbitrator, either original, or by way of substitution as aforesaid, for seven working days, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed the arbitrator may appoint that arbitrator as sole arbitrator in the reference and his award shall be binding on both parties as if he had been appointed by consent
13. OTHER STANDARD TERMS
If the services provided by the Company to the Customer include Freight Forwarding Services then these Standard Terms shall apply solely to Warehousing Services whilst the Standard Terms for Freight Forwarding Services shall apply to the Freight Forwarding Services and all ancillary services.
If the services provided by the Company to the Customer, consist solely of Warehousing Services then these Standard Services shall apply to the Warehousing Services and all ancillary services.