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Conditions of contract of air shipment ex HK
CONDITIONS OF CONTRACT
( APPLIED TO ALL AIR CARGO SHIPMENT)
1. GENERAL
(i) All and any business undertaken, except all and any advice, information or service provided gratuitously, by AIR CITY COMPANY LIMITED (hereinafter called "the Agent") is transacted subject to the conditions hereinafter set out (hereinafter called "the Conditions") and each of the Conditions shall be deemed to be incorporated in and to be a condition of any agreement between the Agent and the Customer. All other terms and conditions are hereby excluded. Should the Customer wish to contract with the Agent otherwise than subject to these conditions, special arrangements has to be made and revised prices quoted, provided that such arrangements shall only apply, if reduced to writing and signed by an authorized officer of the
Customer and by a Director for the time being of the Agent. Save as aforesaid no advice information or services provided by the Agent gratuitously is provided on the basis that the Agent will not accept any liability whatsoever therefor in tort or bailment or otherwise.
(ii) If any legislation is compulsorily applicable to any business undertaken, 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 the Agent of any of its rights or remedies 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.
(iii) All representations, warranties, undertakings, agreements, covenants, obligations, liabilities, guarantees and indemnities expressed in these Conditions or otherwise implied to be made given or assumed by the Customer shall be deemed to be made, given or assumed by the Customer and the owner jointly and severally.
(iv) No omission or delay on the part of the Agent in exercising its rights shall operate as a waiver thereof, nor shall any single or partial exercise by the Agent of any such right preclude the further or other exercises thereof or the exercise of any other right which it has. The rights and remedies of the Agent provided in these Conditions shall be cumulative and not exclusive of any rights or remedies otherwise provided by law.
2. CONTRACTUAL STATUS OF THE CUSTOMER
The expression "the Customer" shall included the exporter/shipper, the depositor of the goods, the owner of the goods, the party whose interest of the goods has been registered overleaf at any time before, during or after the shipment and any other person or corporation which is a party to the contract with the Agent.
The Customer entering into any transaction with the Agent hereby expressly warrants that it is either the owner or the authorized agent of the owner of the goods (including any packings, containers or equipment other than those provided by the Agent or carriers) to which the transaction relates and further warrants that it is authorized to accept and is accepting these Conditions not only for itself but also as agent for the owner of the goods. Where the Customer accepts these Conditions as agent for the owner of the goods, it also accepts personal liability to the Agent, but such acceptance shall not prejudice the rights or remedies of the Agent against the owner of the goods. For the purpose of these Conditions, the 'owner of the goods' ,shall include any person in whom the legal or the beneficial property of the goods is or may hereafter become vested, or any person entitled to or who may become entitled to the delivery of the goods, and any person who is otherwise interested or may hereafter become interested in the goods. The Customer shall indemnify the Agent against all expenses, losses damages and other liabilities whatsoever suffered by the Agent arising from or due to a breach or breaches of the above warranties whether or not arising out of the negligence of the Customer.
3.CONTRACUTUAL STATUS OF THE AGENT
(i) The Agent is not a carrier (common or private, actual or contracting), and may in its sole and absolute discretion refuse to offer its service to any person. The Agent does not contract hereunder for the carriage of goods.
(ii) The Agent is an air forwarding agent whose principal service is to act as an agent in arranging for the transportation or carriage of goods on behalf of Customers from Hong Kong to overseas destinations principally by means of air transportation.
(iii) Related to its principal service the Agent also arranges for the securing of ancillary services on behalf of the Customer including:
(a) Taking delivery of goods at places designated by the Customer, transporting, and handing over such goods to the air carriers at places designated by such as air carriers.
(b) Warehousing or otherwise storing the goods before handing over the goods to the air carriers.
(c) Receiving the goods from the air carriers at overseas destinations, transporting the goods to places where the goods will be collected by the consignees or other persons designated by the Customers or consignees and attending to such collections
(d) Warehousing or otherwise storing the goods before the goods are collected by the consignees or other persons designated by the Customers or consignees
(e) Customs clearance of the goods.
(f) Placing of insurance in respect of the goods
(g) Packing of the goods.
(h) Otherwise handling of the goods pursuant related or incidental to the instructions of the Customers.
The transportation of goods mentioned in (a) and (c) above will hereinafter be referred to as "local transportation" or "local carriage".
(iv) Notwithstanding (iii) above the Agent is entitled to perform any or all of the ancillary services specified therein by itself. The Customer is fully aware the Agent is not a professional haulier, carrier, packer, warehousemen, customs broker or insurance broker and does not purport to act as such.
4.THE AGENTS PARENT,SUBSIDIARY OR ASSOCIATED COMPANIES ETC.
The Agent shall be entitled to perform all or any of its obligations or exercise all and any of its discretions hereunder by itself or by its parent, subsidiary or associated companies, or by any other person, firm or company carrying out the functions of a forwarding agent. Any contract to which these Conditions apply is made by the Agent on its own behalf, and also as agent for and on behalf of any such parent, subsidiary or associated company, other person, firm or company and any such parent, subsidiary or associated company, other person or firm or company shall be entitled to the benefit of these Conditions. The Customers will not seek to impose upon any such parent subsidiary or associated company, other person, firm or company a liability greater than that accepted by the Agent under these Conditions.
5. AUTHORITY TO CONTRACT FOR THE CUSTOMER ETC.
(i) Pursuant to Conditions 3(ii) and (iii), the Agent is authorized to select and engage on behalf of the Customer carriers, truckmen, forwarders, foreign agents, warehousemen, and others. The Agent shall be entitled to enter into any contract on behalf of the Customer, whether in the name of the Customer or not, with any person:(
(a) for the carriage of the Customer's goods to overseas destinations by any route or any carrier ;
(b) for the storage, packing , local transportation or otherwise handling of the goods by any person at any place or places and for any length of time.
(c) For any other purposes pursuant related or incidental to the Customer's instructions;
AND to do such acts, as the Customer's agent, as may be necessary or incidental thereto in the absolute discretion of the Agent. The Agent may but is not obliged to depart from the Customer's instructions in any respect if in the opinion of the Agent it is necessary or desirable to do so in the Customer's interests or it is otherwise expedient to do so, and subject thereto the Agent may arrange for the goods to be transported to overseas destinations by means of transport than air transport.
(ii) The Customer expressly authorizes the Agent to do such acts and enter into such contracts as are referred to in (i) above on behalf of the Customer so as to bind the Customer by such acts and contracts in all respects, notwithstanding any departure from the Customer's instructions as aforesaid.
The Customer agrees that the Agent is not obliged to consult the Customer before the Agent enters into any such contracts or does any acts. The Customer further agrees that the Agent is not obliged to advise the Customer of the terms and conditions of such contracts or details of such acts unless specially requested to do so by the Customer in writing. The Customer further agrees that it shall have no right to enquire into the actual
charges paid by the Agent to any third party and the Customer acknowledges that any difference between the charges paid by the Customer to the Agent and the charges paid by the Agent to any third party is the Agent's commission or remuneration or profit and the Agent is not under any duty
to account to the Customer for the Agent's commissions, remunerations or profits.
6. WHERE THE AGENT CONTRACTS IN ITS OWN NAME
(i) Pursuant to Condition 5 if the Agent enters into a contract on behalf of the Customer in its own name with any other person for the carriage (overseas or local), storage, packing, or otherwise handling of the goods, the Agent is not itself a carrier for the purpose of the Carriage by Air Ordinance of the Laws of Hong Kong Cap. 500, or for any other purposes, nor does it make or purport to make any contract for the carriage (overseas or local), storage, packing or otherwise handling of the goods with the Customer as a principal. The Agent's sole obligation is to procure contracts for the carriage (overseas or local), storage, packing or otherwise handling of the goods by other persons.
(ii) In addition and without prejudice to the exceptions and limitations contained in these Conditions, the Agent shall be entitled to the benefit of all exceptions and limitations in favour of the carriers or other persons storing, packing or otherwise handling the goods, expressly or impliedly contained in the Agent's contracts with such carriers or other persons. The Customer will not seek to impose on such carriers or other persons any liability
greater than that accepted by them under such contracts. The Customer is hereby put on notice that many air carriers contract for the carriage of goods subject to the IATA Conditions of Contract for the time being, the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12th October 1929 (“the Warsaw Convention, that Convention as amended by the Hague Protocol 1955 (“the
Hague Protocol"), or the Guadalajara Convention 1961 supplementary to the Warsaw Convention (“the Guadalajara Convention, or the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May 1999 (“the Montreal Convention or any modification thereof for the time being. Such Conditions, Conventions or amended Convention(s) provided for , inter alia, limitation of the liability of such carriers.
7. WHERE THE AGENT PERFORMS THE ANCILLARY SERVICES
(i) Pursuant to Condition 3(iv), if the Agent performs any or all of the ancillary services referred to therein by itself, the Agent is entitled:
(a) to perform any local transportation of the goods by any route or by any means;
(b) to store, pack or otherwise handle the goods at any places and for any length of time;
And to do all such other acts as any be necessary or incidental thereto in the absolute discretion of the Agent. The Agent may (but is not obliged to) depart from the Customer's instructions if in the opinion of the Agent it is necessary or desirable to do so in the Customer's interests or it is otherwise expedient to do so.
(ii) The provisions relating to the Agent's liability as set out in Condition 24 shall apply.
(iii) where the Agent is or is deemed to be a carrier or otherwise as a principal under a contract subject to legislation compulsorily applicable thereto the Agent shall be entitled to all the rights, immunities, exceptions and limitations conferred on the carrier or principal by virtue of such legislation, and these Conditions shall be void to the extent that they are inconsistent with such rights, immunities, exceptions and limitations, but no further.
8. WARRANTIES OF DESCRIPTIONS, VALUES, PROPER PACKING ETC.
(i) The Customer warrants that all descriptions, values and other particulars of the goods furnished by or on behalf of the Customer to the Agent are accurate and complete and it undertakes to indemnify the Agent against all losses, damages, expenses, fines and any other liabilities whatsoever arising from any inaccuracy or omission, even if such inaccuracy or omission is not due to any negligence. Where the Agent makes out any document or supplies any information in respect of the goods, it does so as the agent of the Customer.
(ii) The Customer warrants that all the goods, the subject of any service provided by the Agent, have been properly and sufficiently packed and/or prepared, and that the Agent has no liability for any loss of or damage to goods which are improperly or insufficiently packed or prepared, no matter how such loss or damage is caused.
9. WARRANTIES OF FITNESS OF GOODS ETC.
Except under special arrangements previously made in writing the Customer warrant that its goods are fit and suitable for carriage (overseas or local), storage, packing or otherwise handling pursuant related or incidental to the Customer's instructions, and are not goods (or consist of goods) included in the Dangerous Goods (Application and Exemption) Regulations of the Laws of Hong Kong Cap. 295 or any modification thereof and the IATA Dangerous Goods Regulations prevailing at the time the Agent confirms acceptance of theCustomer’s instructions, nor are goods (or consist of goods) of comparable hazard, nor are goods ( or consist of goods) otherwise likely to cause damage. Should the Customer nevertheless deliver any such goods to the Agent or cause the Agent to accept or handle or deal with any such goods otherwise than under special arrangement previously made in writing, then whether or not the Agent is aware of the nature of such goods, the Customer shall be liable for all expense lossess or damages whatsoever caused by or to or in connection with the goods howsoever arising, and shall indemnify the Agent against all penalties claims damages costs expenses and any other liabilities whatsoever arising in connection therewith, and the goods may be destroyed or otherwise dealt with at the risk and expenses of the Customer or the owner in the sole discretion of and without any liability to the Agent or any other person in whose custody or control the goods may be at the relevant time. The Agent or such other person shall have the right to decide whether or when the goods are or become
( or consist of goods which are or become goods) unfit for carriage (overseas or local), storage, packing, handling etc. or are or become goods (or consist of goods which are become goods) of comparable hazard to the goods included in the IATA Dangerous Goods Regulations or the Dangerous Goods (Application and Exemption) Regulations or any modification thereof. A copy of the prevailing IATA Dangerous Goods Regulations is available for inspection by the Customer upon request. If such goods are accepted under arrangements previously made in writing, they may nevertheless be destroyed or otherwise dealt with at the risk and expense of the Customer or the owner and without any liability to and in the sole discretion of the
Agent or any other person in whose custody or control the goods may be at the relevant time on account of risk to other goods, property, life or health. The expression "goods likely to cause damage" includes but is not limited to goods likely harbour or encourage vermin or other pests.
10. RIGHT TO INSPECT THE GOODS
The Agent is entitled but is not under any duty is to inspect the goods or cause the goods to be inspected.
11. DECLARATION OF NATURE, VALUE ETC.
(i) The Agent shall not be obliged to make any declaration for the purpose of any statute or convention or contract as to the nature or value of any goods or as to any special interest in delivery, unless expressly agreed with the Customer in writing.
(ii) Where there is a choice of rates according to the extent or degree of the liability assumed by carriers, warehousemen, packers or others, the Agent shall arrange for the goods to be carried, forwarded , dealt with ,etc., at the Customer's risk and at such minimum charges as the Agent may at its discretion decide, and no declaration of value (where optional) will be made, unless express agreement in writing to the contrary has been previously made with the Customer.
(iii) A mere statement of value or nature of the goods or a declaration of value or nature by the Customer for insurance or export of customs or any other purposes is not and shall not be construed to be instructions to the Agent to make any declarations for the purposes of (i) and (ii) above.
12. DISPOSAL OF GOODS
(i) The Agent shall be entitled to sell or dispose of or cause to sell or cause to dispose of at the risk and expense of the Customer or the owner:
a) expect where (b) or (c) below applies, at any time on (28) days' notice in writing to any one of the Customer or the consignee or the owner or the notify party, or without notice after the goods have been discharged by the air carrier at the overseas destination for (60) days, all goods which in the opinion of the Agent or any other person in whose control or custody the goods may be at the relevant time cannot be delivered either
because they are insufficiently or incorrectly addressed or marked or because they are not collected or accepted by the consignee for any reason,
(b) without notice live animals or perishable goods which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked,
(c) without notice and at any time all or any goods which in the option of the Agent or any other person in whose control or custody such goods may be at the relevant time will be likely to perish.
(ii) Payment or tender of the net proceeds of sale, if any , to the Customer or the owner after deduction of all charges and expenses shall be equivalent to delivery of such goods and shall discharge the Agent from all liabilities whatsoever in respect of the goods and any contract relating to the goods. Where the Customer or the owner cannot be traced or payment or tender of the net proceeds is otherwise not possible, the Agent shall hold such proceeds in trust for the Customer or the owner for a period of (one) year. At the expiry of such period, the claim of the Customer or the owner to the proceeds will be extinguished. The Customer or the owner shall not be entitled to claim any interest for any sum held in trust by the Agent hut shall reimburse the Agent for all expenses incurred in holding such sum.
(iii) Payment or tender of the net proceeds of sale, if any , to the Customer or the owner after deduction of all charges and expenses shall be equivalent to delivery of such goods and shall discharge the Agent from all liabilities whatsoever in respect of the goods and any contract relating to the goods. Where the Customer or the owner cannot be traced or payment or tender of the net proceeds is otherwise not possible, the Agent shall hold such proceeds in trust for the Customer or the owner for a period of (one) year. At the expiry of such period, the claim of the Customer or the owner to the proceeds will be extinguished. The Customer or the owner shall not be entitled to claim any interest for any sum held in trust by the Agent hut shall reimburse the Agent for all expenses incurred in holding such sum.
13. BULLIONS, JEWELLERY, ETC.
Except under special arrangements previously made in writing the Agent will not accept or deal with bullion, coins, precious stones, jewellery valuables,pictures, livestock or plants. Should any Customer nevertheless deliver any such goods to the Agent or cause the Agent to handle or deal with any such goods otherwise than under special arrangement previously made in writing the Agent shall be under no liability whatsoever for or in connection with the goods or any part thereof howsoever caused.
14. INSTRUCTION TO THE AGENT
Any of the Customer's instructions, in addition to those appearing on the front side hereof, must be given in writing by the Customer and signed by its authorized officer.
15. QUOTATION AND CHARGES
(i) The Agent is entitled to charge the Customer in any manner in its sole and absolute discretion including but not limited to charging on an inclusive rate basis with or without a breakdown of the items. The Customer acknowledges that the method of quotation or charging adopted by the Agent itself shall not be interpreted that the Agent is contracting hereunder as a carrier or otherwise as a principal.
(ii) Estimates and quotations are given on the basis of immediate acceptance and are subject to withdrawals or revisions by the Agent. Further unless otherwise agreed in writing the Agent shall be, after acceptance of such quotations by the Customer and/or before or during or after performance by the Agent of its duties hereunder at liberty to revise quotations or charges with or without notice in the event of changes occurring in currency exchange rates, rates of freight, insurance premium or any charges applicable of the goods.
(iii) The Customer is primarily liable for the payment of all freight, fees, duties, charges and other expenses whether the same or any of them are to be pre-paid or to be collected. Subject to agreement between the Agent and the Customer, charges may be (i) "to be pre-paid", that is, due to and payable at the time the Agent confirms acceptance of the Customer's Instructions appearing on the front side hereof, or (ii) "to be collected", that is, due and payable at the time the consignee or any other person designated by the Customer or consignee collects the goods at the other end of the transit, or (48) hours after the discharge of the goods by the air carrier and notice of arrival has been communicated to the notify party whichever is earlier. In the case that the charges are to be prepaid the Agent reserves the right to treat payment of the charges as a condition precedent to the performance of its duties hereunder. In the case that the charges are to be collected the Agent reserves the right to cause the goods and documents relating thereto to be withheld until payment is made.
(iv) All sums shall be paid to the Agent in cash immediately when due without deduction or deferment and payment shall not be withheld or deferred on account of any claim, counterclaim or set off. Any sum not paid when due shall bear interest at the best lending rate of the Hongkong and Shanghai Banking Corporation prevailing at the relevant time or times. If there are any outstanding sums or charges due from the Customer to the Agent whether under one or more quotations, the Agent is entitled to hold or defer in arranging for present or future transportation or carriage of goods on behalf of the Customer until the said sums or charges are fully paid by the Customer and the Agent shall not be liable to the Customer or the consignee or the owner for any loss or damage arising therefrom or in connection therewith.
(v) Where the Customer's instructions are to collect charges including amounts payable by the Agent to the carriers foreign agents or others or any other expenses or parts thereof from the consignee or any other persons, the Customer shall remain responsible and shall forthwith pay for the same or any balance thereof plus any interest if they are not paid or not fully paid by such consignee or other persons immediately when due, notwithstanding any claim counterclaim or set off. Without prejudice to the generality of the foregoing this provision shall apply if inter alia the goods are refused by the consignee or confiscated by the customs or other authorities or for any reason it is in the opinion of the Agent impossible to arrange for the delivery of the goods.
16. BROKERAGES ETC.
The Agent is authorized and entitled to retain and be paid all brokerages, commissions, allowances and other remunerations from any third party and is not accountable to the Customer or the consignee or the owner therefor
17. RIGHTS AGAINST THE CONSIGNEE ETC.
The Agent shall have the right to enforce any liability of the Customer under these Conditions or to recover any sums to be paid by the Customer under these Conditions not only against or from the Customer but also if it thinks fit against or from the consignee or the owner.
18. INSURANCE
(i) No insurance against any risk whatsoever will be effected except upon express instructions given in writing within a reasonable time by the Customer.
A mere statement of value or a mere declaration of value by the Customer for export or customs or carriage or other purposes is not and shall not construed to be instructions to insure.
(ii) Where the Customer expressly instructs the Agent to effect any insurance, the Agent will make reasonable efforts to effect the same at the expense of the Customer. However, the Agent will not warrant or undertake that such insurance can or will be placed. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by the insurance companies or other underwriters.
(iii) Subject to the foregoing unless otherwise specifically instructed by the Customer in writing:
(a) Insurance is to be effected to cover the period from the time the goods are loaded aboard the aircraft at the airport in Hong Kong to the time the aircraft shall arrive at the airport at the overseas destination, and the goods be there discharged and landed.
(b) Insurance is to be effected with one or more insurance companies or underwriters to be selected by the Agent and the insurance may be placed in the name of the Agent or the Agent's agent or the Customer in the discretion of the Agent. The Agent shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or floating or general policy, and such policy, and such policy
is available for inspection by the Customer upon request.
(iv) Should an insurer dispute its liability for any reason the Customer shall have resources against the insurer only and the Agent shall not be under any responsibility or liability whatsoever in relation thereto notwithstanding that the premium upon the policy may not be the same rate as that charged by the Agent or paid to the Agent by the Customer or that the policy is in the name of the Agent or the Agent's agent. Where the policy is in the name of the Agent's agent, the Agent shall subject to provisions of such policy cause its or its agent's rights against the insurer to be transferred to Customer if so requested by the Customer in writing. The Agent is not responsible or liable to the Customer for making any claim against or notifying the insurer thereof on behalf of the Customer.
19. LIEN
(i) The Agent shall have a particular and general lien on all goods and documents relating to the goods in its possession ( control or custody or enroute) for all sums due at any time from either the Customer or the consignee or the owner. Without prejudice to the Agent's right of sale or disposal under Condition 21 the Agent shall be entitled at any time to sell or otherwise dispose of ( or cause to sell or otherwise cause to dispose of) such goods or documents or any part thereof at the risk and expense of the Customer or the consignee or the owner by public auction or private sale or in any other manner and at any place in the discretion of the Agent and apply the proceeds in or towards the payment of such sums including the expense of the sale or disposal upon (28) days notice in writing to either the Customer or the consignee or the owner.
(ii) The Agent shall upon accounting to the Customer or the consignee or the owner for the balance remaining, if any, be discharged from all liabilities
whatsoever in respect of the goods and any contract relating to the goods, and the Customer or the consignee or the owner shall be liable to the Agent for any deficiency in the sale or disposal.
(iii) The Agent's rights of particular or general lien will have priority over the Customer's or the owner's right, if any, of stoppage in transitu.
(iv) In addition the Agent shall have a particular and general lien on all sums of money or money's worth received by the Agent or its agent on behalf of the Customer or the consignee or the owner and shall be entitled to apply such sums of money or money's worth or parts thereof towards the payment
of all sums due at any time from the Customer or the consignee or the owner on (28) days notice in writing to the Customer or the consignee or the owner.
20. GOODS OF OTHER CUSTOMERS
The Agent shall not be obliged to arrange for the goods to be carried, packed, stored or handled separately from the goods of other customer. The Agent is authorized to arrange for the Customer's goods to be consolidated with other goods. Such consolidation itself shall not be interpreted that the Agent is contracting hereunder as a carrier or otherwise as principal.
21. DELIVERY OF GOODS
Except otherwise specifically instructed by the Customer in writing the Agent shall arrange for the goods to be delivered only to the consignee named on the front side hereof, or to a party authorized by such consignee. Notice of arrival of the goods will be sent to the notify party, or the consignee by ordinary methods; the Agent is not liable for non-receipt or delay in the receipt of such notice. Any charges including storages incurred pending collection will be for the account of the Customer or the consignee or the owner.
22. "CASH ON DELIVERY" (C.O.D)
Instruction to collect payment in cash or otherwise on behalf of the Customer or the owner from any person on delivery of the goods or on other specified terms are accepted by the Agent upon the condition that the Agent in the matter of such collection and the remittance thereof will act as the agent of the Customer or the owner and will be liable only in the event of wilful misconduct on the part of the Agent or its own servants and the limitation
of liability stated in Condition 24 shall apply to all such cause.
23. THE AGENTS DOCUMENTS
To facilitate the handling of goods during transit the Agent may issue documents such as the Agent's House Air Waybill, House Airbill, Air Consignment Note, or other such documents. The issue of such document itself shall not be interpreted that the Agent is contracting hereunder as a carrier or otherwise
as a principal.
24. THE AGENTS LIABILITY
(i) The Agent shall not be liable to the Customer or the consignee or the owner:(
a) for any loss or damage (physical or otherwise), including but not limited to loss or damage resulting from non-delivery of the goods or mis- delivery of the goods to a wrong party, caused by any failure to carry out or negligence in carrying out the Customer's or the consignee's or the owner's instructions, or by any failure to perform or negligence in performing the Agent’s obligations (whether such obligations arise by contract or otherwise), unless such loss or damage is due to the wilful misconduct of the Agent or its own servants and to circumstances within its actual control,
(b) for any special, incidental, indirect, consequential or economic loss or loss of market or profit, or delay, or deviation, or fire, or theft in each case howsoever caused.
(ii) Notwithstanding any other provision in these Conditions the Agent's responsibility or liability hereunder shall cease upon the Agent handing the goods to any airline, or other carrier or any other third party. The Agent shall not be responsible in any event for loss or damage (physical or otherwise) to, or in connection with the goods if the nature or value thereof has been mis-stated by or on behalf of the Customer or the owner, whether or not such mis-statement is due to any negligence.
(iii) In no case whatsoever any liability of the Agent, howsoever arising, and notwithstanding that the cause of loss or damage (physical or otherwise) be unexplained, exceed:
(a) the invoice value of the relevant goods calculated on f.o.b. basis, or
(b) a sum at the rate of US$20 per kilo,
(c) a sum of US$25.64 per package, whichever shall be the least.
If any one or more of the Warsaw Convention, the Hague Protocol, the Guadalajara Convention and the Montreal Convention or any modification
thereof for the time being are compulsorily applicable, the relevant limitation amounts set out therein as applied by the applicable legislation will apply.
In all other cases the limitation amounts detailed in (iii) above will apply.
(iv) Any claim by the Customer or the consignee or the owner or any person against the Agent hereunder shall be made in writing and notified to the
Agent at its address in Hong Kong as indicated on the front side hereof:
a) in the case of physical damage to the goods within (7) days after the end of the transit
(b) in the case of non-delivery (including loss or mis-delivery to a wrong party) within (14) days of the date when the goods should have been delivered, and
(c) in any other case within (5) 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. Any right of action shall be extinguished and the Agent discharged from all liability if judicial proceedings are not instituted within (90 days) from the date of the notice given to the Agent.
(v) No claim of any kind shall be made against any servant or agent of the Agent on any ground whatsoever. No claim of any kind shall be made against any parent, subsidiary or associated company of the Agent, or against any other parties employed by the company in pursuance of Condition 4 or against any of their respective servants or agents on any ground whatsoever.
(vi) The provisions contained in (i) to (v) above shall apply whatever the nature of the proceedings (whether or not in contract or tort or bailment or otherwise) by which liability may be enforced.
(vii)The Agent shall not be under any duty or obligation to the Customer or the consignee or the owner to give any notice or otherwise take any action to preserve or protect the right of the Customer or the consignee or the owner in relation to any claim or remedy which the Customer or the consignee or the owner may have against any third parties.
25. COMPLIANCE WITH LAW
The Customer, the consignee and the owner shall comply with all applicable laws, customs and other government regulations of any country to, from, through or over which the goods may be carried, including those relating to the packing, storing, carriage, delivery or otherwise handling of the goods pursuant, related to incidental to the Customer's instruction, and shall furnish such information and such documents to the Agent as may be necessary to comply with such laws and regulations. The Agent is not liable to the Customer or the owner or the consignee or any other person for losses expenses or damages due to the Customer's or the owner's or the consignee's failure to comply with this provision.
26. INDEMNITY
The Customer and the owner shall be liable to pay and indemnify the Agent against all claims, duties, taxes, payments, finesand outlays of whatsoever nature levied by any authority, costs and expenses, losses, damages ( including physical damages) and liabilities, whether or not arising out of the negligence of the Agent, their servants or agents, suffered or incurred by the Agent towards any third party ( including but not limited to the Agent's servants and agents), arising directly or indirectly from or in connection with the Customer's instructions or their implementation or the goods or in the performance of the Agent's obligations under any contract to which these Conditions apply, including any liability to indemnify any other person against claims made against such other person by the Customer or by the owner. The Customer and the owner shall defend, indemnify and hold harmless the Agent from and against all claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of the Agent under the terms of these Conditions, and without prejudice to the generality of the foregoing this indemnity shall include without limitation all claims, costs and demands arising from or in connection with the negligence of the Agent, its officers, servants, agents or sub-contractors.
27. INTERPRETATION
These Conditions are numbered, paragraphed, sub-paragraphed and sub-titled for the sake convenience only. Such numbering paragraphing, sub-paragraphing and sub-titling shall not limit or extend the interpretation of the Conditions. All sub-titles are not parts of the Conditions. Where used herein, the words importing the singular number shall include the plural and vice versa and words importing the neuter gender shall include
the masculine gender or feminine gender as the case may be.
28. WAIVER
The waiver by the Agent of any default or right under these Conditions shall not be deemed to be a waiver by the Agent of any prior, subsequent or continuing default or right of a like or similar nature.
29. SEVERABILITY
If any provision of these Conditions be declared void invalid or unenforceable by any court of law, the remaining provisions of these Conditions shall to the extent permitted by such declaration remain in full force and effect as though the void invalid or unenforceable provisions were never a provision of these Conditions.
30. GOVERNING LAW
These Conditions and any act or contract to which they apply shall be governed by Hong Kong law, and any dispute arising out of the Conditions or any such act or contract shall be within the exclusive jurisdiction of Hong Kong Courts.
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