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  • FORWARDER CARGO RECEIPT TERMS AND CONDITIONS

    1. Definitions and application

    1.1 In these conditions the following words shall have the following meaning:

    ‘ACS’ Allport Cargo Services Limited
    ‘Consignee’ the Person to whom the goods are consigned
    ‘Customer’ any Person at whose request or on whose behalf
    ACS undertakes any business or provides advice
    information or services.
    ‘Goods’ the cargo in respect of which ACS provides services
    under this agreement.
    ‘Owner’ the owner of the Goods and any other Person who is or
    may become interested in them.
    ‘Person’ includes persons or any body or bodies corporate.
    ‘Transport Unit’ packing case, pallets, container, trailer, tanker, or any
    other device used whatsoever for and in connection with
    the carriage of Goods by land, sea or air.

    1.2 Subject to sub-clause 1.4 below, all and any activities of ACS in the course of
    business governed by the provisions of this agreement, whether gratuitous or not,
    are undertaken subject to these conditions unless otherwise agreed in writing.

    1.3 The receipt, custody, consolidation and forwarding of the Goods are governed by
    the provisions of this agreement and the provisions of any applicable ACS tariff
    covering the performance of consolidation services by ACS. ACS tariffs are
    available for inspection at all ACS offices and locations where cargo is received
    for consolidation upon reasonable notice and during normal business hours.

    1.4 If any legislation is compulsorily applicable to any business undertaken pursuant to
    this agreement, these conditions shall, as regards such business, be read as subject
    to such legislation and 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 such legislation, and if any part of these conditions
    be repugnant to such legislation to any extent, such part shall as regards such
    business be overridden to that extent and no further.

    1.5 ACS shall:

    (i) have a lien on all Goods and documents relating to Goods in its possession,
    custody or control for all sums due at any time to ACS from the Customer
    and/or Owner and/or Consignee on any account whatsoever, whether
    relating to Goods belonging to or services provided by or on behalf of ACS
    to the Customer and/or Owner and/or Consignee. Storage charges shall
    continue to accrue on any Goods under lien:

    (ii) be entitled on at least 28 days notice in writing to the Customer to sell or
    dispose of or deal with such Goods or documents as agent for and at the
    expense of the Customer and apply the proceeds in or towards the payment
    of such sums;

    (iii) upon accounting to the Customer for any balance remaining after payment of
    any sum due to ACS, and for the cost of sale and/or disposal and/or dealing,
    be discharged of any liability whatsoever in respect of the Goods or documents.

    1.6 When the Goods are liable to perish or deteriorate, ACS’s right to sell or dispose
    of or deal with the Goods shall arise immediately upon any sum becoming due to
    ACS subject only to ACS taking reasonable steps to bring the Customers attention
    its intention to sell or dispose of the Goods before doing so.

    1.7 Where the Customer, Consignee or Owner of the Goods fail to take delivery at the
    appointed time and place and where ACS is entitled to deliver, ACS shall be entitled
    to store the Goods or any part thereof at the sole risk of the Customer or Consignee or
    Owner whereupon ACS’s liability in respect of the Goods or that part thereof stored
    as aforesaid shall wholly cease. All costs incurred by ACS as a result of the failure to
    take delivery shall be deemed as freight earned and such costs shall be paid immediately
    upon demand.

    1.8 ACS shall be entitled, at the expense of the Customer, to dispose of or deal with any
    Goods (by sale or otherwise) which have been held by ACS for 90 days and which
    cannot be delivered as instructed after at least 28 days in writing to the Customer or
    without notice where the Customer cannot be traced and reasonable efforts have been
    made to contact any parties who may reasonably be supposed by ACS to have any
    interest in the Goods.

    1.9 ACS shall be entitled, at the expense of the Customer, to dispose of or deal with any
    Goods (by sale or otherwise) without prior notice where such Goods have perished,
    deteriorated, or altered or are in immediate prospect of doing so in a manner which
    has caused or may reasonably be expected to cause loss or damage to ACS, or
    third parties, or to contravene any applicable laws or regulations.

    1.10 No insurance will be effected except upon express instructions given in writing by the
    Customer and accepted in writing by ACS. All insurances effected by ACS are
    subject to the usual exceptions and conditions of the policies of the insurers or
    underwriters taking this risk. Unless agreed in writing, ACS shall not be under any
    obligation to effect a separate insurance on the Goods. In so far as ACS agrees to
    effect insurance, ACS acts solely as agent for the Customer and limits of liability
    under clause 4.3 (i) below shall not apply to ACS’s obligations under clause 1.10.

    1.11 Except under special arrangements made in writing by an officer of ACS so authorised,
    any instructions relating to the delivery or release of the Goods in specified circumstances
    (such as, but not limited to, against payment or against surrender of a particular document)
    are accepted by ACS, where ACS has to engage third parties to effect compliance
    with the instructions, only as agents for the Customer.

    1.12 Where ACS accepts instructions from the Customer to collect freight, duties, charges,
    dues or other expenses from the Consignee, or any other Person, on receipt of
    evidence of proper demand by ACS, and in the absence of evidence of payment by
    such Consignee or other Person for whatever reason, the Customer shall remain
    responsible for such freight, duties, charges, dues or other expenses.

    1.13 ACS shall not be under any liability in respect of such arrangements as are referred
    to under 1.12 above save where such arrangements are made in writing. In any event,
    ACS’s liability in respect of the performance or, or arranging the performance of, such
    instructions shall not exceed the limits set out in clause 4.3 (ii).

    1.14 Advice and information, in whatever form it may be given, is provided for the Customer
    only. The Customer shall indemnify ACS against all loss and damage suffered as a
    consequence of passing such advice or information on to any third party.

    2. ACS and provision of services

    2.1 All services are provided by ACS as agents except as otherwise expressly agreed in
    writing. In receiving the Goods and performing the consolidation services covered by this
    agreement, ACS is acting as agent only for the Consignee named on the face hereof and
    not as a carrier, transporter or distributor of the Goods.

    2.2 ACS agrees to receive the Goods on behalf of the Consignee, hold the same and deliver
    or forward them to carriers or transporters in accordance with the instructions of the
    Consignee or Owner for subsequent transportation by water or air and for distribution and
    ultimate delivery to the Consignee. ACS reserves to itself full liberty as to means, route
    and procedure to be followed in the performance of any services provided in the course of
    business undertaken subject to these conditions.

    2.3 From and after delivery by ACS to a carrier in accordance with the instructions of the
    Consignee Owner, the Consignee Owner agree that the sole responsibility and liability for
    the care, custody, carriage and delivery of the Goods shall be that of said carrier. ACS
    is hereby authorised to forward the Goods and otherwise arrange for the shipment and
    transportation of the Goods by water or air as the agent of the Consignee Owner. The
    Consignee Owner acknowledge that they shall be bound by the terms and conditions of the
    transportation agreements of the carriers into whose custody the goods may be forwarded.

    2.4 If at any time the method and/or route of forwarding selected by the Consignees becomes
    impossible to perform for any reason, ACS may at its absolute discretion use any other
    method available and all charges and/or expenses incurred in using such method shall be
    for the Consignee’s account. ACS shall so far as reasonably possible cause the Goods to
    be consolidated with the goods of others in order to secure the transportation benefits and
    economies contemplated by the instructions of the Consignee Owner. ACS shall be at
    liberty to employ agents, sub-contractors or third parties on such terms and conditions as
    it shall in its discretion think appropriate.

    2.5 Without prior agreement in writing by an officer of ACS so authorised, ACS will not
    accept or deal with Goods that require special handling regarding carriage, handling, or
    security whether owing to their thief attractive nature or otherwise including but not
    limited to bullion, coin, precious stones, jewellery, valuable, antiques, pictures, human
    remains, livestock, pets, plants. Should the Customer nevertheless deliver any such
    goods or cause ACS to handle or deal with any such goods, otherwise than under such
    prior agreement. ACS shall have no liability whatsoever howsoever arising for or in
    connection with the goods.

    2.6 ACS will not be required to secure export licenses and/or quote clearances or any other
    government consent in respect of the import or export of cargo.

    3. The Customer

    3.1 The Consignee warrants that:

    (i) he is either the Owner, or the authorised agent of the Owner and, also, that he
    is accepting these conditions not only for himself, but also as agent for and on
    behalf of the Owner;

    (ii) The Goods have been properly marked and suitably prepared for normal handling,
    packed, stowed and/or labelled and that the preparation, packing stowage,
    labelling and marking are appropriate to any operations or transactions affecting
    the Goods and the characteristics of the Goods;

    (iii) the description and particulars, including without limitation the weight and
    description of packages and cargo units, of any Goods or information furnished
    or services required by or on behalf of the Customer and/or shipper are full and
    accurate;

    (iv) any Transport Unit and/or equipment supplied by the Customer in relation to
    the performance of any requested service is fit for purpose and suitable for the
    carriage to the intended destination of the Goods;

    (v) the nature and amount of any hazardous or dangerous cargo has been packed
    and/or labelled in accordance with IMCO regulations and identified as such in
    accordance with such regulations to ACS at or before the time of receipt by
    ACS, and

    (vi) the Goods do not require insulated, refrigerated, ventilated or other special
    storage or handling not disclosed to ACS at or before the time of receipt
    of the Goods.

    3.2 Without prejudice to clause 2.5, where the Customer delivers to ACS or causes
    ACS to deal with or handle Goods of a dangerous or damaging nature, or Goods
    likely to harbour or encourage vermin or other pests, of Goods liable to taint or affect
    other goods, whether declared to ACS or not, the Customer shall be liable for all
    loss or damage arising in connection with such Goods and shall indemnify ACS
    against all penalties, claims, damages, costs and expenses whatsoever and howsoever
    arising in connection therewith, and the Goods may be dealt with in such manner
    as ACS or any other person in whose custody they may be at the relevant time, shall
    think fit.

    3.3 The Customer undertakes that no claim shall be made against any director, servant or
    employee of ACS which imposes, or seeks to impose, upon them any liability in
    connection with any services which are the subject of these conditions, and, if any
    such claim should nevertheless be made, to indemnify ACS against all consequences
    thereof.

    3.4 The Consignee and/or Owner and/or shipper of the Goods shall defend, indemnify
    and hold harmless ACS from and against:

    (i) all liability, loss, damage, costs and expenses whatsoever and howsoever
    arising including but not limited to all duties, taxes, imposts, levies, deposits
    and outlays of whatsoever nature levied by any authority in relation to the
    Goods, arising out of ACS acting in accordance with the Customer’s
    instructions or arising from any breach by the Customer of any warranty
    contained in these conditions, or from the negligence of the Customer, and

    (ii) without prejudice to sub-clause 3.4 (i) above, any liability assumed, or incurred
    by ACS when, by reason of carrying our the Customer’s instructions, ACS
    has become liable to any other party, and

    (iii) all claims, costs and demands whatsoever and by whomsoever made or
    preferred in excess of the liability of ACS under terms of these conditions,
    regardless of whether such claims, costs, and/or demands arise from or in
    connection with the breach of contract, negligence or breach of duty of
    ACS, its servants, sub-contractors or agents, and

    (iv) any claims of a general average nature which my be made on ACS.

    3.5 The Customer and/or Consignee and/or shipper hereby acknowledge that ACS
    acts solely as agent and shall be under no liability whatsoever in respect of any
    failure by the Customer and/or Consignee and/or shipper or any other party to do
    any act or pay any amounts due in respect of the cargo received hereunder including
    but not limited to the purchase price of such cargo, freight, storage charges, insurance
    premiums, lighterage charges, demurrage, salvage charges or general average
    contributions.

    3.6 The Customer shall pay to ACS in cash, or as otherwise agreed, all sums when
    due immediately and without reduction or deferment on account of any claim,
    counterclaim or set-off. ACS shall be entitled to charge interest on any outstanding
    sums at a rate of 8% per annum above the prevailing base rate from the date on which
    the sums became due and owing.

    3.7 Where liability arises in respect of claims of a general average nature in connection with
    the Goods, the Customer shall promptly provide security to ACS or to any other party
    designated by ACS in a form acceptable to ACS.

    4. Liability and Limitation

    4.1 ACS shall be relieved of liability and responsibility for any loss or damage if and to the
    extent that such loss or damage is caused by circumstances which ACS is unable to
    avoid by the exercise of reasonable diligence or 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, including but not limited to Act of God, war, civil riot,
    civil commotion, import or export regulations, embargoes, strikes, lock-outs or other
    industrial activities or trade disputes, acts of terrorism or governmental action or any
    other cause beyond the reasonable control of ACS.

    4.2 Except under previous agreement made in writing by an offer of ACS so authorised,
    ACS accepts no responsibility with regard to any failure to adhere to agreed departure
    or arrival dates of Goods.

    4.3 Subject to clause 1.4 and 1.10 above and 4.8 below, ACS’s liability howsoever arising
    and irrespective of whether the cause of loss or damage be unexplained, shall be
    limited to the least of:

    (i) in the case of claims for loss or damage to Goods, the value of any loss or
    damage, or a sum at the rate of two SDR per kilo of the gross weight of any
    Goods lost or damaged.

    (ii) subject to (i) above, in the case of all other claims, the true value of the subject
    Goods or where the weight can be identified, a sum calculated at the rate of
    two SDR per kilo of the gross weight of the subject Goods, or 75,000 SDR
    in respect of any one transaction.

    4.4 In the case of an error and/or omission, or a series of errors and/or omissions which are
    repetitions of or represent the continuation of an original error, and/or omission, the loss

    incurred, or 75,000 SDR in the aggregate of any one trading year commencing from the
    time of the making of the original error and/or omission, whichever shall be the lower.

    4.5 For the purposes of the foregoing, the term ‘true value’ shall mean the CIF (FOB plus
    proportionate insurance and freight) value of the goods as verified by appropriate
    documentation.

    4.6 Subject to 1.4 above, ACS’s liability for loss or damage as a result of failure to deliver
    or arrange delivery of goods in a reasonable time, or, where there is prior written
    agreement under clause 4.2 above, to adhere to agreed departure or arrival times, shall
    not in any circumstances whatever exceed a sum equal to twice the amount of ACS’s
    charges in respect of the relevant contract.

    4.7 ACS is not responsible for any defect in quality, quantity, type or any inherent vice in
    the cargo. The Owner on behalf of itself and its assigns and any party acquiring title to
    the cargo under or though it, hereby waives any claim against ACS arising out of or in
    connection with the issuance of the Cargo Receipt by ACS unless such claim arise
    out of a misdeclaration in the said Cargo Receipt of the number of packages or shipping
    units received by ACS or the apparent order and conditions.

    4.8 On express instructions in writing declaring the true value of the Goods received from
    the Customer and accepted by ACS before the time of receipt by ACS of the Goods,
    ACS may accept liability in excess of the limits set out 4.1 to 4.7 above upon the
    Customer agreeing to pay ACS’s additional charges for accepting such increased
    liability, in which case ACS’s liability for loss or damage to the Goods or for delay shall
    be the true value of the Goods.

    4.9 Any claim against ACS shall be made in writing and notified to ACS within 14 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 such a claim, and any claim not made
    and notified as aforesaid shall be deemed to be waived and absolutely barred except
    where the Customer can show that it was impossible for him to comply with this time
    limit and that he has made the claim as soon as it was reasonably possible for him to
    do so.

    4.10 Notwithstanding clause 4.9 above, ACS shall in any event be discharged of all liability
    whatsoever and howsoever arising in contract and in tort, unless suit is duly commenced
    and written notice thereof given to ACS within nine months from the date of the event
    or occurrence alleged to give rise to a cause of action against ACS. Investigating,
    negotiating or otherwise dealing with claims by ACS or its legal advisers or
    representatives shall not be deemed a waiver of any of the foregoing provisions.

    5. Law and Jurisdiction

    5.1 These conditions and any act or contract to which they apply shall be governed by the
    law of England and any dispute arising out of any act or contract to which these
    conditions apply shall be subject to the exclusive jurisdiction of the Courts in England
    and no other.

     

    November 2006