Terms and Conditions of Service
The customer is asked to note that these conditions exclude and/or limit the GIL entity’s liability; limit time for bringing claims against the gil entity; and in certain circumstances require the customer to indemnify the GIL entity.
Section 1. General Conditions
“GIL Entity” means, in these Agility Global Standard Trading Conditions (“Conditions”), any of the worldwide affiliates of Agility GIL Services AG (a company registered in Switzerland) that provides services to the customer.
All and any business undertaken, including any advice, information or service provided whether gratuitously or not by the GIL Entity is transacted subject to the Conditions hereinafter set out. All other terms and conditions, including any trading conditions of the customer or the use of the customer’s own forms, are hereby excluded. Where international conventions or any legislation applies mandatorily to the services being provided, the provisions of such conventions and law shall apply to the services and prevail over these Conditions only to the extent that they are mandatorily applicable In such circumstances, the GIL Entity shall be entitled to all the rights, immunities, exceptions and limitations conferred on the carrier by such legislation, and if any of these Conditions are repugnant to any such legislation, the same shall be void to the extent of such repugnancy but no further. In the event any clause(s) and/or portions(s) hereof is found to be invalid and/or unenforceable, then in such event the provision shall be interpreted and/or reformed to provide for the interpretation most favourable to the GIL Entity; and shall be deemed to expressly refer to the minimum allowable limitation of liability; time for suit provision; or notice requirement, as if the provision were so originally and expressly drafted.
The GIL Entity may act either as an agent or a principal contractor. The GIL Entity acts as a principal contractor where
- the GIL Entity has held itself out to be the operator of a regular line or service over the route, or part of the route, on which the goods are to be carried, and has accepted instructions for the carriage of the goods by that line or service, or
- when it has issued a transport document in its own name as a carrier or
- when it is acting solely as a warehouse keeper. In such circumstances the GIL Entity is not a common carrier and transacts business only on the basis of these Conditions only. In all other cases, the GIL Entity is deemed to be acting as an agent only on behalf of the customer and the special provisions at Section II of these Conditions shall apply. Where multiple services are provided by the GIL Entity under these Conditions, the GIL Entity only contracts as principal contractor for the part(s) of the services which fall within (i)-(iii) above, and shall in all other cases act as agent only.
When the GIL Entity acts as an agent on behalf of the customer, the GIL Entity does not make or purport to make any contract with the customer for the carriage, storage, packing or handling of any goods nor for any other physical service in relation to them, but acts as agent only on behalf of the customer in procuring services from third parties, so that direct contractual relationships are established between the customer and such third parties.
No quotation shall be binding until such quotation has been accepted by the customer in writing. Prior to such acceptance, the GIL Entity shall be at liberty to revise or withdraw quotations. After such acceptance, the GIL Entity can only revise its quotations or charges in the event that the quotation was affected by a system error or in the event of changes occurring in relation to currency exchange rates, third party freight rates, insurance premiums, any third party charges applicable to the goods or any change in the parameters on which the quotation was based.
The customer warrants that the description and particulars of any consignments furnished by or on behalf of the customer are accurate. All instructions and descriptions must be given to the GIL Entity in good time in writing either by letter, facsimile, telex, e-mail or otherwise by online means. No responsibility whatsoever is accepted by the GIL Entity in respect of instructions or descriptions issued verbally until such time as they are confirmed in writing.
Except where the GIL Entity is instructed in writing to pack the goods, the customer warrants that all goods have been properly and sufficiently packed and/or prepared for transit. The GIL Entity accepts no liability for loss of or damage to goods caused by insufficient or inadequate packing or preparation for transit.
No insurance will be effected except upon express instructions given in writing by the customer. Where customer expressly instructs the GIL Entity to procure insurance, the customer acknowledges that:
- the GIL Entity does not arrange insurance on a brokerage basis,
- such insurance will be subject to customary conditions and exclusions of the policies of the insurance company or underwriters taking the risk;
- the GIL Entity shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy;
- notwithstanding that the premium on the policy may not be the same as that charged by the GIL Entity to the customer, the GIL Entity shall in no circumstances incur liability as insurer or insurance broker and, if for any reason the insurers dispute liability, the customer shall have recourse against the insurers only, however, this provision shall not detract from the rights of the customer against the GIL Entity in respect of any negligence on the part of the GIL Entity in effecting insurance, which shall be subject to these Conditions.
Except under special arrangements previously agreed in writing, the GIL Entity will not accept or deal with
- any noxious, dangerous, hazardous or inflammable or explosive goods or any goods likely to cause damage; or
- bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants. Should any customer nevertheless deliver any such goods to the GIL Entity or cause the GIL Entity to handle or deal with any such goods otherwise than under special arrangements previously made in writing, he shall be solely liable for all loss or damage whatsoever caused by or to or in connection with the goods however arising and shall indemnify the GIL Entity in full against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith.
Where the customer delivers dangerous goods to the GIL Entity or causes the GIL Entity to handle or deal with any such goods whether under special arrangements referred in the preceding section or not, the GIL Entity reserves the right to abandon, destroy or otherwise dispose of such goods without notice in the event that the GIL Entity, at its sole discretion, considers such goods to present or risk presenting a risk to other goods, property, life or health (although the GIL Entity will, where reasonably practicable, contact the customer). Any responsibility of the GIL Entity in respect of such goods shall cease upon the aforementioned disposal of the goods, and the GIL Entity shall still be entitled to its remuneration for the services performed.
The customer undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and particular temperature range to be maintained and undertakes to properly set the container in which the goods are to be stuffed. If the above requirements are not complied with, the GIL Entity shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
The GIL Entity shall not be obliged to arrange for the goods to be carried, stored or handled separately from the goods of other customers.
The GIL Entity shall be entitled, at the expense of the customer, to sell or dispose of:
- on 21 days’ notice in writing to the customer or without notice where despite reasonable efforts the customer cannot be traced, after the goods have been held by the GIL Entity for 90 days, any goods which in the opinion of the GIL Entity cannot be delivered either because they are insufficiently or incorrectly addressed or because they have not been collected or accepted by the consignee for any reason; and
- without notice, perishable goods which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked or which in the opinion of the GIL Entity would be likely to perish in the course of the carriage, storing or handling.
- Without prejudice to the GIL Entity’s rights under clause 14 below or generally, where the GIL Entity exercises its power of sale and/or disposal under this clause, it shall be entitled to deduct any costs of sale/disposal, together with any storage charges and any other unpaid charges from any proceeds of such sale/disposal prior to accounting to the customer for any balance.
Subject always to complying with any requirements of applicable law, the GIL Entity shall have a general lien on all goods or documents relating to goods, including bills of lading, sea waybills and/or other transportation documents, for all sums due at any time from the customer or the owner of the goods or any person holding an interest on the goods (“Owner”), and shall be entitled to sell or dispose of such goods or documents at the expense of the customer and apply the proceeds in or towards the payment of such sums on 28 days’ notice in writing to the customer.
All sums due to the GIL Entity are payable by the customer on demand in advance, unless otherwise agreed by the GIL Entity. Payment shall be made without deduction and shall not be withheld or deferred on account of any claim, counterclaim or set–off. The GIL Entity shall be entitled to interest on all amounts overdue. The interest will be calculated locally in each country at a rate of 4% above the Bank of England’s base rate.
When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person, the customer remains jointly and severally liable for the same. If they are not paid by such consignee or other person immediately when due, the GIL Entity shall have the right to recover any such sums from the customer.
Without prejudice to the provisions of Section II, where applicable, the GIL Entity shall not be liable to the customer or Owner for loss of or damage to the goods unless the same is due to the negligence of the GIL Entity or any subcontractors employed by the GIL Entity or its or their own servants. In no case whatsoever shall any liability of the GIL Entity, however arising and notwithstanding that the cause of loss or damage be unexplained, exceed
- the value of the goods, or
- a sum at the rate of 2 Special Drawing Rights (SDR) per kilo of gross weight of the affected goods, whichever is the lesser. Without prejudice to any other conditions herein or other defenses which may be open to the GIL Entity, in no circumstances whatsoever shall the GIL Entity be liable to the customer or Owner for delay or deviation however caused for any sums in excess of twice the GIL Entity's own charges in respect of the relevant transaction.
Without prejudice to the foregoing, in connection with all services performed by the GIL Entity, the customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must be confirmed in writing by the GIL Entity prior to rendering services for the covered transaction(s).
In no circumstances whatsoever shall the GIL Entity be liable to the customer or Owner for any loss which is or which amounts to:
- loss of profits;
- loss of sales, business or market;
- loss of agreements or contracts;
- loss of anticipated savings;,
- loss or use or corruption of software, data or information; or
- loss of or damage to goodwill, whether such losses be direct or indirect, or for any other indirect or consequential loss, however caused.
Any claim by the customer or Owner against the GIL Entity shall be made in writing and notified to the GIL Entity:
- in the case of loss or damage to the goods which is immediately apparent, notification must be given at the time of delivery;
- in the case of other loss or damage to the goods, within 7 days after the end of the transit;
- in the case of delay in delivery or non-delivery, within 14 days of the date when the goods should have been delivered;
- in any other case, within 14 days of the event giving rise to the claim.
Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the customer or Owner can show that it was impossible for him to comply with these time limits in which case any claim shall be barred if not made without delay. Without prejudice to the foregoing, the GIL Entity shall in any event be discharged of all liability whatsoever and howsoever arising unless suit be brought and written notice thereof given to the GIL Entity within nine months from the date of the event giving rise to the alleged claim.
The customer is responsible for ensuring that all customer transactions for which the GIL Entity provides services on behalf of the customer (“Transactions”) comply with any and all applicable laws, regulations, rules, orders and other requirements relating to export control, economic sanctions, embargoes and sectoral sanctions of the United States, the European Union and its member states, the United Nations, and other governments having jurisdiction (together, “Sanctions and Export Laws”).
The customer represents and warrants that it has performed due diligence with regards to every Transaction and that each and every Transaction is not prohibited, would not subject the GIL Entity to sanctions, and does not require specific prior government authorization (e.g., export or import license, from the country of origin of the goods or otherwise), under any and all Sanctions and Export Laws, or if any prior government authorization is required, the customer has obtained such authorization and provided a copy to the GIL Entity.
Without prejudice to the foregoing, the customer acknowledges that the GIL Entity is or may be subject to United States laws that impose export restrictions or economic sanctions on, or otherwise prohibit or penalise, dealing with the governments, nationals, Specially Designated Nationals (“SDNs”) and products and services originating from or owned and controlled by certain countries or in which such governments, nationals or SDNs have an interest. These laws include the Export Administration Act of 1979 administered by the U.S. Department of Commerce and the economic sanctions regulations administered by the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) (all such laws, collectively the “US Sanctions Laws”). Customer warrants that, for all Transactions, neither the customer, its vendors nor its customers are
- located in or under the control of the government of a country subject to U.S. sanctions; or
- are on OFAC’s SDN list or the Department of Commerce’s denied persons list. The customer further warrants that the information, software and technology used by the GIL Entity’s system will not be transferred, exported or re-exported to a sanctioned country, SDN or denied person or otherwise used in violation of the US Sanctions Laws. The customer is responsible for ensuring that any necessary licenses for its business (including import and export licenses) are obtained from the relevant governmental authority.
The customer indemnifies the GIL Entity and holds the GIL Entity harmless from and against any and all claims, demands, actions, suits, proceedings, investigations, judgments, orders, losses, damages, liabilities, fines, penalties, costs, and expenses, including attorney's fees, suffered or incurred by the GIL Entity and arising out of, resulting from, or related to: (a) any non-declaration or illegal, inaccurate, and/or inadequate declaration by or caused by the customer or its directors, officers, employees, agents, or representatives; and (b) any actual or alleged violation of any Sanctions and Export Laws (whether intentional or unintentional) by or caused by the customer or its directors, officers, employees, agents, or representatives. For the purposes of this clause 21, “GIL Entity” shall be deemed to include all parent, subsidiary and associated companies of the GIL Entity.
The GIL Entity may (without liability) refuse to handle any Transaction if, in the GIL Entity’s sole judgment, such Transaction or services provided therefor could be in violation of any Sanctions and Export Laws.
Section 2. Special Provisions When The Company Acts As Forwarding Agent
Conditions 24 to 27 below apply where and to the extent that the GIL Entity in accordance with Conditions 3 and 4 acts as agent on behalf of the customer.
The GIL Entity shall act with reasonable care in procuring contracts in accordance with the customer’s instructions. Notwithstanding this, the GIL Entity shall be entitled to enter into contracts
for the carriage of goods by any route or by any means;
for the storage, packing or handling of the goods by any persons at any place or places and for any length of time when such services form part of the carriage of the goods;
and to do such acts as may be necessary or incidental thereto at the reasonable discretion of the GIL Entity and to depart from the customer's instructions in any respect if in the opinion of the GIL Entity it is necessary or desirable to do so in the customer's interests. The customer expressly authorizes the GIL Entity to do such acts and enters into such contracts on behalf of the customer so as to bind the customer by such acts and contracts in all respects, notwithstanding any departures from the customer's instructions as aforesaid.
The GIL Entity shall be entitled to delegate the performance of any of its obligations as agents to any of its parent, subsidiary or associated companies, or to any other person, firm or company. The contract between the customer and the GIL Entity is made by the GIL Entity on its own behalf, and also as agent for and on behalf of such parent, subsidiary or associated company, and such company shall be entitled to the benefit of these Conditions. The customer will not seek to impose upon such company a liability greater than or additional to that accepted by the GIL Entity under these Conditions.
The GIL Entity shall be entitled to retain and be paid all brokerages, commissions, allowances and other remuneration customarily retained by or paid to forwarding agents.
The GIL Entity shall not be liable to the customer or Owner for loss or damage arising from any non-compliance with the customer's or Owner's instructions or for any failure to perform whether wholly or in part their obligations (whether such obligations arise in contract or otherwise) unless the same is due to the negligence of the GIL Entity or its own servants.
Section 3. Jurisdiction And Applicable Law
These conditions, and any act or contract to which they apply, shall be governed by the law of the country of incorporation of the GIL Entity entering into such a contract. Any dispute arising out of any such act or contract shall be within the local jurisdiction of the courts of the country of incorporation of the GIL Entity.