Definitions and Application

1 The following words shall have the following meanings:

Company - the member trading under these conditions
Consignee - the Person to whom the goods are consigned
Customer - any Person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services
Direct Customs Agent - the Company acting in the name of and on behalf of the Customer and/or
Owner with H.M. Revenue and Customs (HMRC as defined by the Taxation (Cross Border Trade) Act 2018, Clause 21.1(a), or as amended
Goods - the cargo to which any business under these conditions relates
Person - natural person(s) or any body or bodies corporate
LMAA - the London Maritime Arbitrators Association
SDR - are Special Drawing Rights as defined by the International Monetary Fund
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
Owner - the Owner of the Goods or Transport Unit and any other Person who is or may become interested in them
 

2 (A)Subject to sub-paragraph (B) below, all activities conducted by the Company in the course of its business, whether free of charge or not, are carried out under these conditions.

(B)If any laws, including regulations and directives, are mandatorily applicable to any business activities, these conditions shall be interpreted in accordance with such laws. Nothing in these conditions shall be seen as a waiver by the Company of any of its rights or protections, nor as an increase in its responsibilities or liabilities under such laws. If any part of these conditions conflicts with such legislation to any degree, that part shall be overridden only to the extent necessary for that business.

3  The Customer confirms that he is either the Owner or an authorized agent of the Owner, and that he is accepting these conditions not only for himself but also as an agent on behalf of the Owner.

The Company

4 (A)Subject to clauses 11 and 12 below, the Company has the right to procure any or all of the services as an agent or to provide those services as a principal.

(B)The Company retains full discretion regarding the means, route, and procedures to be followed in delivering any service provided in the course of business undertaken under these conditions.

5 When the Company contracts as a principal for any services, it has the complete freedom to perform those services itself or to subcontract any part of those services on any terms it sees fit.

6 (A)When the Company acts as an agent for the Customer, it is entitled, and the Customer expressly authorizes the Company, to enter into any contracts necessary or desirable to fulfill the Customer's instructions, regardless of whether those contracts are subject to the trading conditions of the parties involved.

(B)The Company will provide evidence of any contract entered into as an agent for the Customer within 14 days of a request from the Customer. If the Company fails to provide such evidence, it will be considered to have contracted with the Customer as a principal for the execution of the Customer's instructions.

7  In all dealings with HMRC on behalf of the UK-established Customer and/or Owner, the Company is appointed and duly authorized to act solely as a Direct Customs Agent, making Customs declarations in the name of the Customer (Principal).

8 (A)Subject to sub-clause (B) below:
(i)  The Company has a general lien on all Goods and documents relating to Goods in its possession, custody or control for all sums due at any time to the Company from the Customer and/or Owner on any account whatsoever, whether relating to Goods belonging to, or services provided by or on behalf of the Company to the Customer or Owner. Storage charges shall continue to accrue on any Goods detained under lien.

(ii)    The Company has the right, with at least 21 days' written notice to the Customer, to sell, dispose of, or manage such Goods or documents as an agent for the Customer, at the Customer's expense, and to use the proceeds to cover any outstanding amounts owed.

(iii)  After accounting for any remaining balance due to the Customer, following the payment of any sums owed to the Company and the costs associated with the sale, disposal, or management, the Company will be released from any liability regarding the Goods or documents.

(B)  In cases where the Goods are at risk of perishing or deteriorating, the Company's authority to sell, dispose of, or manage the Goods will take effect immediately when any amount is due to the Company, provided that the Company takes reasonable steps to notify the Customer of its intention to sell or dispose of the Goods beforehand.
 

9 The Company has the right to keep and receive all brokerages, commissions, allowances, and other payments that are typically retained by or paid to freight forwarders.

10 (A)If the Customer, Consignee, or Owner of the Goods does not take delivery at the scheduled time and location where the Company is supposed to deliver, the Company may store the Goods, or any part of them, at the Customer's or Consignee's or Owner's sole risk. In this case, the Company's liability regarding the Goods, or the part stored, will completely end. Any liability the Company may have concerning such storage will be subject to these conditions. All expenses incurred by the Company due to the failure to take delivery will be considered as freight earned, and these costs must be paid by the Customer upon request.

(B) The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale or otherwise as may be reasonable in all the circumstances):

(i)  After providing written notice of at least 22 days to the Customer, or if the Customer cannot be located despite reasonable efforts to contact any interested parties, the Company may dispose of any Goods that have been held for 60 days and cannot be delivered as instructed.

(ii)  Additionally, without prior notice, the Company may dispose of any Goods that have perished, deteriorated, or changed in a way that could reasonably lead to loss or damage to the Company, third parties, or that could violate any applicable laws or regulations.

11 (A)Insurance will only be arranged in accordance with clear written instructions from the Customer, which must be accepted in writing by the Company. All insurance policies arranged by the Company will be subject to the usual exceptions and conditions set by the insurers or underwriters. Unless otherwise agreed in writing, the Company is not obligated to arrange separate insurance for the Goods but may include them under any open or general policy it holds.

(B)If the Company agrees to arrange insurance, it will do so solely as an agent for the Customer, and the limits of liability outlined in clause 26(A) of these conditions will not apply to responsibilities of the Company under clause 11.

12 (A)Except under special arrangements made in writing by an authorized officer of the Company, or as outlined in a signed printed document from the Company, any instructions regarding the delivery or release of Goods in specific situations (including, but not limited to, payment or the surrender of a particular document) are accepted by the Company only as agents for the Customer when third parties are engaged to fulfill these instructions.

(B)Even though the Company accepts instructions from the Customer to collect freight, duties, charges, dues, or other expenses from the Consignee or any other individual, the Customer will remain responsible for these costs if the Company does not receive evidence of payment from the Consignee or other individual, regardless of the circumstances.

(C)The Company will not be liable for any arrangements mentioned in sub-clauses (A) and (B) unless they are made in writing. Furthermore, the Company liability regarding the execution or arrangement of such instructions will not exceed the limits specified in clause 26(A)(ii) of these conditions.

13 Advice and information provided by the Company, in any form, is intended solely for the Customer. The Customer agrees to indemnify the Company against any loss or damage resulting from sharing this advice or information with third parties.

14 The Company will not accept or handle Goods that require special handling for carriage, handling, or security without prior written agreement from an authorized officer. This includes items that are particularly attractive to thieves, such as bullion, currency, securities, precious stones, jewelry, valuables, antiques, pictures, human remains, living creatures, and plants. If a Customer delivers such goods to the Company or causes the Company to handle them without this prior agreement, the Company will not be liable for any issues related to those goods.

15 The Company will not accept or deal with Goods that are dangerous or damaging, nor with Goods that may harbor or attract vermin or pests, or Goods that could taint or affect other items, unless there are written instructions previously received and accepted by the Company. If such Goods are accepted under a special arrangement but later deemed a risk to other goods, property, life, or health, the Company will, if reasonably possible, contact the Customer to request the removal or proper handling of the goods. However, the Company reserves the right to take action at the Customer's expense if necessary.

16 When there are different rates based on the level of liability assumed by the Company and/or third parties, no declaration of value will be made or considered made unless there are special arrangements previously established in writing by an authorized officer of the Company, as mentioned in clause 26(D).

The Customer

17   The Customer warrants:

(A)    (i) that the following information provided by or on behalf of the Customer is complete and accurate: the description and details of any Goods; any information provided (including but not limited to the nature, gross weight, gross mass which includes the verified actual gross mass of any container packed with packages and cargo items and measurements of any Goods); and the description and details of any services required by or on behalf of the Customer are complete and accurate.

(ii)that any Transport Unit and/or equipment supplied by the Customer for the performance of any requested service is suitable for its intended purpose.

(B)    that all Goods have been properly and adequately prepared, packed, stowed, labeled, and/or marked, and that the preparation, packing, stowage, labeling, and marking are appropriate for any operations or transactions involving the Goods and their characteristics.

(C)    that when the Company receives the Goods from the Customer already stowed in or on a Transport Unit, the Transport Unit is in good condition and suitable for transporting the Goods to their intended destination.

(D)    that when the Company provides the Transport Unit, upon loading by the Customer, the Transport Unit is in good condition and suitable for transporting the Goods to their intended destination.

18  Without prejudice to any rights under clause 15, if the Customer provides the Company with Goods that are dangerous or damaging, or Goods that may attract or harbor vermin or pests, or Goods that could taint or affect other items, whether or not these are declared to the Company, the Customer will be responsible for any loss or damage that arises in connection with such Goods. The Customer will also indemnify the Company against any penalties, claims, damages, costs, and expenses related to these Goods, which may be handled in any way the Company or any other person in possession of them sees fit.

19  The Customer agrees that no claims will be made against any director, employee, or servant of the Company that would impose, or attempt to impose, any liability on them regarding the services covered by these conditions. If such a claim is made, the Customer will indemnify the Company against all resulting consequences.

20    The Customer shall save harmless and keep the Company indemnified from and against

(A)    all liability, loss, damage, costs and expenses whatsoever (including, without prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods) arising out of the Company 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;

(B)    without derogation from sub-clause (A) above, any liability assumed, or incurred by the Company when, by reason of carrying out the Customer's instructions, the Company has become liable to any other party;

(C)    all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under the 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 the Company, its servants, sub-contractors or agents;

(D)    any claims of a general average nature which may be made on the Company.

21 (A)The timely receipt of all payments due from the Customer to the Company is essential for the Company's operations and its ability to fulfill its obligations to the Customer. Therefore, the Customer agrees to pay the Company in cash, or as otherwise arranged, all amounts when they are due, without delay or reduction for any claims, counterclaims, or set-offs. Timeliness is crucial for all payments the Customer owes to the Company.

(B)    In the event of any failure by the Customer to make full and punctual payment of any sum payable to the Company (in accordance with clause 21(A) above):
 

(i)    Any and all other sums properly earned by and/or otherwise due to the Company (but which, but for this clause 21(B), would otherwise not yet be payable by the Customer, whether by virtue of an agreed credit period or otherwise) shall become immediately payable in full; and

(ii)    Any sum thereby becoming immediately payable shall be paid to the Company in cash, or as otherwise agreed, and without reduction or deferment on account of any claim, counterclaim or set- off.

(C)    No omission to seek compensation for breach of 21(A) and (B) above by the Company shall constitute a waiver or release to the Customer from any liability under 21(A) and (B) above during the application of these terms unless agreed in writing by authorised officers of the Company and Customer.

(D)    The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to all sums due from the Customer.

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

Liability and Limitation

23   The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgment.

24    The Company shall be relieved of liability for any loss or damage if, and to the extent that, such loss or damage is caused by:

(A)    strike, lock-out, stoppage or restraint of labour, the consequences of which the Company is unable to avoid by the exercise of reasonable diligence; or

(B)    any cause or event which the Company is unable to avoid, and the consequences of which the company is unable to prevent by the exercise of reasonable diligence.

25    Except under special arrangements previously made in writing by an officer of the Company so authorised, the Company accepts no responsibility with regard to any failure to adhere to agreed departure or arrival dates of Goods.

26 (A)Subject to clause 2(B) and 11(B) above and sub-clause (D) below, the Company’s liability howsoever arising and, notwithstanding that the cause of loss or damage be unexplained, shall not exceed:

(i)    in the case of claims for loss or damage to Goods:

(a)    the value of any loss or damage; or

(b)    a sum at the rate of 2 SDR per kilo of the gross weight of any Goods lost or damaged whichever shall be the lesser.

(ii)    subject to (iii) below, in the case of all other claims:

(a)    the value of the subject Goods of the relevant transaction between the Company and its Customer; or

(b)    where the weight can be defined, a sum calculated at the rate of 2 SDR per kilo of the gross weight of the subject Goods of the said transaction; or

(c)    75,000 SDR in respect of any one transaction, whichever shall be the lesser.
(iii)    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:

(a)    the loss incurred; or

(b)    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 lesser.

For the purposes of clause 26(A), the value of the Goods shall be their value when they were, or should have been, shipped. The value of SDR shall be calculated as at the date when the claim is received by the Company in writing.

(B)    Subject to clause 2(B) above and sub-clause (D) below, the Company’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 a special arrangement under Clause 25) to adhere to agreed departure or arrival dates, shall not in any circumstances whatever exceed a sum equal to twice the amount of the Company’s charges in respect of the relevant contract.
(C)    Save in respect of such loss or damage as is referred to at sub-clause (B), and subject to clause 2(B) above and sub-clause (D) below, the Company shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market, or the consequences of delay or deviation, however caused.

(D)    On clearly stated instructions in writing declaring the commodity and its value, received from the Customer and accepted by the Company, the Company may accept liability in excess of the limits set out in sub-clauses (A) to (C) above upon the Customer agreeing to pay the Company’s additional charges for accepting such increased liability. Details of the Company’s additional charges will be provided upon request.

27 (A)Any claim by the Customer against the Company regarding any service provided or promised by the Company must be submitted in writing and communicated to the Company within 14 days from when the Customer became, or should have reasonably become, aware of the event or situation that is claimed to give rise to such a claim. If a claim is not submitted and communicated as specified, it will be considered waived and completely barred, unless the Customer can demonstrate that it was impossible to meet this deadline and that the claim was made as soon as it was reasonably feasible.

(B)In addition to the above provisions, the Company will be released from all liability related to any service provided to the Customer, or which the Company has agreed to provide, unless legal action is initiated and written notice is given to the Company within nine months from the date of the event or situation that is claimed to have caused a cause of action against the Company.

Jurisdiction and Law

28 (A)These conditions and any act or contract to which they apply shall be governed by English law.

(B)    Any dispute arising out of any act or contract to which these Conditions apply shall, save as provided in (C) below, be subject to the exclusive jurisdiction of the English courts.

(C)    Notwithstanding (B) above, the Company is entitled to require any dispute to be determined by arbitration.

(D)    The Company may exercise its rights under (C) above either by itself commencing arbitration in respect of a dispute or by giving written notice to the Customer requiring a dispute to be determined by arbitration.

(E)    In the event that the Company exercises its rights under (C) above, the corresponding arbitration shall be conducted as follows:

(i)    Where the amount claimed by the claimant is less than $400,000, excluding interest, (or such other sum as the Company and Customer may agree, and subject to (iii) below), the reference shall be to a tribunal of three arbitrators and the arbitration shall be conducted in accordance with the LMAA Intermediate Claims Procedure applicable at the date of the commencement of the arbitration proceedings;

(ii)    Where the amount claimed by the claimant is less than $100,000, excluding interest, (or such other sum as the Company and Customer may agree, and subject to (iii) below), the reference shall be to a sole arbitrator and the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure applicable at the date of the commencement of the arbitration proceedings;

(iii)    In any case where neither of the LMAA Procedures referred to in (i) and/or (ii) above applies, the reference shall be to three arbitrators in accordance with the LMAA Terms applicable at the date of the commencement of the arbitration proceedings.
 

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Eurto enters into agreement with the shopper, even though the service is carried out by a third-party carrier.