Standard Terms and Conditions
Unless otherwise stipulated and/or expressly agreed by Maersk Contract Logistics Management (Asia) Limited, its affiliates and/or subsidiaries (collectively and/or individually, “MCL”), all of MCL’s services provided are subject to these Standard Terms and Conditions (“STC”). MCL reserves the rights to amend this STC from time-to-time and without notice.
1. DEFINITIONS AND INTERPRETATION
1.1. In this STC, the following words and expressions have the following meanings unless the context otherwise requires:
“Assumption(s)” means the information about CLIENT’s requirements for the provision of the Services, including but not limited to the Goods, assumptions or forecasts on volumes and delivery routes;
“CLIENT” means the party which MCL has engaged to render the Services under the Contract;
“Contract” means this STC, together with any document and/or undertaking (regardless of whether they are given verbally, in writing or otherwise) which is capable of binding MCL and CLIENT in relation to the provision of the Services, such document includes without limitation, pricing quotations, written / verbal instructions, requests for proposals, purchase orders, letters of intent and etc and or otherwise as the case may be;
“Force Majeure” means
a) act of God;
b) war, insurrection, riot, civil commotion, act or threat of terrorism;
c) lightning, earthquake, fire, flood, storm, typhoon or severe weather condition;
d) theft, malicious damage;
e) strike, lockout, industrial dispute (whether affecting the workforce of a Party and/or any other person);
f) as a result of a Force Majeure, MCL’s inability to obtain essential supplies or materials to carry out the Services;
g) change in applicable laws, rules and regulation;
h) any other event which under applicable law is defined as force majeure and/or as a fortuitous event; or
i) any event or circumstance to the extent it is beyond the reasonable control of the relevant Party;
“Good(s)” means property supplied by CLIENT including, but not limited to, goods and/or products together with its packaging, containers, or equipment, in respect of which MCL undertakes to provide the Services;
“Package” means a storage unit and/or article designed and used specifically to consolidate the Goods for transportation and/or storage under the Contract – for clarity, a Package shall be outer most storage unit that is capable of constituting a Package while being stored or transported individually but in no way shall a consumer unit ever constitute a Package;
“Service Fee(s)” means the relevant fees and/or charges as may be agreed by the Parties which become payable by CLIENT upon MCL rendering the Services; and
“Service(s)” means the services to be provided by MCL to CLIENT (in respect of the Goods) and as may be stipulated by the Contract.
1.2. Unless the context requires otherwise: (i) references to the singular include the plural and vice versa; (ii) all headings are for ease of reference only and will not affect the construction or interpretation of this STC; and (iii) references to a “Party” or to the “Parties” will mean MCL and/or CLIENT, as the case may be.
2.1. MCL shall provide the Services to CLIENT subject to the terms and conditions of the Contract.
2.2. Unless by special arrangement and/or otherwise agreed in writing, MCL shall not provide Services in respect of the Goods which are dangerous, hazardous, valuable, temperature controlled and/or require any special requirements as to storage and/or handling.
3. SERVICE FEE AND PAYMENT
3.1. CLIENT shall pay MCL the relevant Service Fee for the Services rendered by MCL in accordance with the terms of the Contract, in the absence of which, MCL shall invoice CLIENT for the Service Fee by email which shall be due payable within 14 days of the date of the invoice.
3.2. Any amount invoiced by MCL and payable under the Contract is exclusive of value added taxes (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that amount in the manner and at the rate prescribed by law from time to time.
3.3. If CLIENT fails to make timely payments on any amount payable pursuant to the Contract, CLIENT shall pay MCL interest on that amount at one percent (1%) per month from the due date until the date of payment, such interest to accrue on a daily basis and be compounded monthly. MCL also reserves the right to suspend any and/or all the Services to CLIENT until further notice and with no liability.
CLIENT warrants that any and all Assumptions provided to MCL by CLIENT will be true and accurate in all respects. MCL shall not be liable for any loss, damage, costs, expenses or delay to the Services as a result of any inaccuracy in the Assumptions.
5. PRODUCT RESPONSIBILITY
5.1. Title to the Goods handled by MCL and the ensuing risks of ownership shall, at all times, remain with CLIENT.
5.2. MCL shall be responsible for the Goods only in the following instances:
5.2.1. upon the confirmation of receipt of the Goods by MCL at its facility;
5.2.2. while the same are stored / handled within said facility; and
5.2.3. as the case may be, while the same are in transit under which MCL is contractually obliged to do so by virtue of the Contract.
5.3. CLIENT has the sole responsibility to procure, maintain and manage its own insurance policy and/or insurance claims pertaining to the Goods to which MCL provides the Services.
6.1. CLIENT represents, warrants and undertakes that:
6.1.1. it is a corporation duly incorporated, validly existing and in sound financial standing under applicable local laws and it will immediately notify MCL in writing of any events that occur or circumstances that arise which adversely affect, or could adversely affect, any such standing;
6.1.2. it has full capacity and authority to enter into the Contract;
6.1.3. it is the owner of the Goods or, if not the owner, that it has the consent of the owner for all purposes of the Contract;
6.1.4. it has or will obtain, at its expense, all approvals, certifications, registrations, licenses, consents and/or permits from all relevant governmental and/or customs authorities necessary for the purposes of MCL carrying out the Services including but not limited to the manufacture, sale, warehousing and/or distribution of the Goods;
6.1.5. it will not obligate nor instruct MCL to perform in such a way that is in conflict with any law or regulation (or such other applicable laws), and it will comply with all laws, rules and regulations applicable to the Contract and shall not do or omit to do anything which may cause MCL to breach the same;
6.1.6. it will, prior to handing over the Goods, promptly notify MCL of any such Goods which is of a dangerous or hazardous nature and shall provide all documentation and material handling information to MCL although MCL has the sole discretion to refuse to provide the Service in connection with such Goods; and
6.1.7. none of the Goods may cause pollution of the environment or harm to human health, require any official consent or license to handle, transport, process or otherwise deal with or carry, and/or will at any time while in MCL’s control constitute hazardous waste.
7. EXCLUSIONS AND LIMITATION OF LIABILITY
7.1. When MCL provides the Services, including but not limited to any obligations to load, handle (including picking and packing), stow, carry, keep, care for and discharge the Goods, MCL’s liability to CLIENT shall only be founded if CLIENT establishes that any loss, damage or delay was caused by gross negligence or wilful or reckless misconduct on the part of MCL, including its directors, officers, employees, servants, agents, contractors and/or sub-contractors. MCL’s liability (if any) shall be subject to clauses 7.2 to 7.3 below and shall benefit MCL, its directors, officers, employees, agents, contractors and sub-contractors which shall apply in the aggregate.
7.2. Exclusion of liability
7.2.1. MCL shall have no liability whatsoever for claims arising from:
18.104.22.168. a Force Majeure as detailed further in clause 9 below; and/or
22.214.171.124. any cause which MCL could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
7.2.2. MCL will have no liability to CLIENT for any of the following losses (in each case whether direct, indirect or consequential) howsoever arising and whether or not contemplated or reasonably foreseen by the Parties:
126.96.36.199. loss of profit, revenue, product, business opportunity, goodwill, reputation, savings, margin;
188.8.131.52. loss of use or value of any data or software;
184.108.40.206. wasted management, operational or other time;
220.127.116.11. any liability of CLIENT to third parties; and/or
18.104.22.168. indirect, consequential or special loss of any kind.
7.2.3. CLIENT hereby releases MCL from liability and waives its right of recovery for loss or damage caused by fire and extended perils.
7.3. Limitation of liability
7.3.1. Without prejudice to the exclusions of liability elsewhere in the Contract, the liability of MCL (if any) shall be limited as follows:
22.214.171.124. in the case of loss / damage / delay / misdirection of the Goods (including but not limited to total loss due to irremediable damage, theft and physical loss due to non-delivery) where MCL acts as a logistics service provider, not exceeding the least of:
126.96.36.199.1. the landed cost of the Goods lost, damaged or misdirected;
188.8.131.52.2. USD12 per kg or USD430 per Package of the Goods lost, damaged or misdirected whichever is the lower; or
184.108.40.206.3. in the case of misdirection, the reasonable costs of transporting the Goods to the correct destination;
220.127.116.11. in the case of loss / damage / delay / misdirection of the Goods (including but not limited to total loss due to irremediable damage, theft and physical loss due to non-delivery) where MCL acts as a contractual carrier of the Goods, MCL’s liability (if any) shall be determined by the relevant contracts of carriage as issued for the relevant carriage in the absence of which:
18.104.22.168.1. in the event of an ocean shipment, said carriage shall be subject to the Hague Rules or any legislation making the Hague Rules or the Hague-Visby Rules compulsorily applicable to the contract of carriage and the provisions of the Hague Rules or applicable legislation shall be deemed incorporated herein. The Hague Rules, the applicable conventions or legislation shall apply to carriage by inland waterways and reference to carriage by sea therein shall be deemed to include reference to inland waterways;
22.214.171.124.2. in the event of an air shipment, said carriage shall be subject to the Warsaw Convention or the Montreal Convention unless such carriage is not “international carriage” as defined by the applicable Conventions; or
126.96.36.199.3. in the event of road carriage, said carriage shall be subject to the CMR Convention,
provided always that, MCL’s liability as contractual carrier shall not exceed the limits set out in clauses 188.8.131.52 and 7.3.3.
7.3.2. For the avoidance of doubt, the financial limits listed in this clause cannot be used in concurrence with each other to increase MCL’s liability in respect of the same Goods for the same event or events arising from a common cause.
7.3.3. Notwithstanding any other provisions of the Contract, MCL’s maximum aggregate liability to CLIENT, in connection with or arising out of the Contract as the case may be, shall be limited to USD100,000.
7.3.4. Higher compensation may be claimed from MCL only if such arrangement has been separately agreed in writing prior to the provision of Services together with payment of additional fees.
7.4. CLIENT shall release MCL, its employees, agents and subcontractors, from any liability to CLIENT or anyone claiming through, by or under it, by way of subrogation or otherwise, for all claims for loss or damage in excess of the limit set out in this clause 7.
7.5. The exclusions from, and limitations of, liability set out in this clause 7 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other.
7.6. Save for the conditions above and/or by mutual agreement of the Parties, all warranties, conditions and terms which may otherwise be implied by applicable local law (whether by statute, common law or otherwise) are excluded from the Contract.
8.1. Notwithstanding any other provisions of the Contract, CLIENT shall indemnify, defend and hold harmless MCL against all direct, indirect and consequential loss, liability, damage, costs, expenses, demands that MCL does, may or will incur or suffer as a result of defending or settling any actual or threatened claim or proceedings, arising out of, or in connection with:
8.1.1. an act or omission of CLIENT or any person other than MCL acting on their behalf or from whom MCL took the Goods in charge;
8.1.2. MCL or its directors, officers, employees, servants, agents, contractors or sub-contractors complying with the instructions or advice given by or on behalf of CLIENT;
8.1.3. an act or order of any governmental, judicial or other authority;
8.1.4. inherent defects/vice of the Goods and/or the nature of the Goods including but not limited to those that are hazardous and/or dangerous;
8.1.5. the insufficiency or defective condition of the packing or labelling of the Goods, the Packages, containers or vehicles;
8.1.6. a breach or failure of CLIENT to perform an obligation or warranty under the Contract;
8.1.7. all duties, taxes, levies, deposits and outlays of whatsoever nature levied by any authority;
8.1.8. infringing any trademarks or other intellectual property rights in the performance by MCL of the Services; or
8.1.9. the handling, loading, stowage or unloading of the Goods by CLIENT or any person acting on their behalf.
9. FORCE MAJEURE
9.1. MCL shall be excused from the performance of any of its obligations under the Contract together with any resulting liabilities including without limitation any damage or loss to the Goods as a result to a Force Majeure.
9.2. CLIENT shall continue to pay the Service Fee in respect of any Services which are not disrupted by a Force Majeure.
10. SUB-CONTRACTING AND ASSIGNMENT
MCL shall be entitled to sub-contract, transfer or assign any or all of its rights and obligations under the Contract without prior notice to or the prior oral or written consent of CLIENT.
11.1. MCL shall have a particular and general lien on all the Goods and/or documents relating thereto in its possession for all sums of whatsoever kind and nature due at any time from CLIENT and, on giving 28 days’ notice in writing to CLIENT, shall be entitled to sell or dispose of such Goods and/or documents (with or without court order) at the expense of CLIENT.
11.2. MCL shall, without any liability to CLIENT, be entitled to apply the proceeds from the sale or disposal of the Goods and/or documents in or towards the payment of any such sums due from CLIENT, and any balance remaining after payment of the sums due (after deduction of the costs of sale or disposal) shall be paid to CLIENT.
11.3. If the proceeds are insufficient to recover the sums due to MCL in full, MCL shall be entitled to recover the difference from CLIENT.
12. NOTICE OF LOSS AND TIME BAR
CLIENT undertakes to notify MCL of any breach of the Contract leading to potential liability, failing which MCL shall be discharged of all liability for any such breach. CLIENT must also serve proceedings (if any) in respect of such breach on MCL within a period of nine (9) months after the date of notification of a claim for that breach, failing which, CLIENT shall be deemed to have waived its right of recourse against MCL.
Any notice and other communication given under or in connection with the Contract will be in writing, and will be either delivered by hand, sent by registered mail (postage prepaid) to the following address:
Maersk Contract Logistics Management (Asia) Limited
14/F, LiFung Centre, 2 On Ping Street, Siu Lek Yuen, Shatin Hong Kong
14. NO WAIVER
A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the Party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
If any term of the Contract shall be determined to be invalid, illegal, or unenforceable in any respect by any court of competent jurisdiction, such provision shall be severed and the validity, legality or enforceability of the remainder of the Contract shall not be affected or impaired and shall continue in full force and effect as if the Contract had been executed with the invalid, illegal or unenforceable provision eliminated.
16.1. The Contract constitutes the entire contractual understanding between the Parties and supersedes all prior or contemporaneous terms, oral or written, made between the Parties relating such subject matter.
16.2. CLIENT in engaging MCCL has not relied upon, and it will have no remedy in respect of any misrepresentation, representation or statement which is not expressly set out in the Contract.
No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the Parties.
For their convenience, the Parties may use, from time to time, their standard purchase orders, sales releases, delivery annexes, acknowledgments, invoices and other similar pre-printed forms. In the event of a conflict between this STC and any other documents constituting the Contract, this STC shall prevail.
19.1. Save as otherwise expressly provided in the Contract or required by law, all payments to be made by CLIENT to MCL will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
19.2. MCL will be entitled to set-off any liability which CLIENT or any of its affiliate or subsidiary has to it against any liability which it has to CLIENT, whether such liability is present or future, liquidated or unliquidated, under the Contract or other cause of action.
The Parties understand the English language and are fully aware of all terms and conditions of the Contract. If any translation of the Contract and/or this STC is made, the English language version shall prevail to the extent of any conflict.
21. GOVERNING LAW AND DISPUTE RESOLUTION
The Contract is governed by the laws of the jurisdiction in which the Services are being provided. Any dispute, controversy or claim arising out of or relating to the Contract shall be settled by arbitration in the Hong Kong International Arbitration Centre (“HKIAC”). Any arbitration will be conducted by a single arbitrator in accordance with the HKIAC Administered Arbitration Rules. The language to be used in the proceedings will be English. The seat of arbitration shall be Hong Kong. The decision of the arbitrator will be final and binding on the Parties. The prevailing Party will be entitled to recover all fees and costs incurred in connection with the arbitration, including reasonable attorneys’ fees, at the discretion of the arbitrator. An agreement to arbitrate shall not be construed to prevent either Party from seeking injunctive relief against the other Party from any judicial or administrative authority of competent jurisdiction to enjoin that Party from breaching any provision of the Contract pending the resolution of a dispute by arbitration.