In the absence of a special contract containing special conditions, the following are the only conditions on which M/s Sindhu Cargo Services Private Limited., contracts and carry out business or operate
DEFINITIONS AND APPLICATION
1. In these conditions the following words shall have the meanings give below:
COMPANY – Sindhu Cargo Services Private Limited., incorporated under the Indian Companies Act, 1956 and having its registered office at Block 3, “Sindhu Logistic Park” No. 34, Nellakunte Near MVIT College, Bettahalasuru, Hunsa Maranhalli (Post), Bangalore North Taluk, Bengaluru -562 157, including its branches in India, and acting in the capacity of a Customs House Agent, Freight Forwarder, Warehouse Keeper and Transporter, as the case may be.
CUSTOMER – Any person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services and includes the Owner and his Agent(s)
CUSTOMS HOUSE AGENT – Company acting in the name of and on behalf of the Customer and/or Owner with Indian Customs and Port /Airport Authorities, any such other Competent Authority as a Custom House Agent.
FREIGHT FORWARDER – Company, when rendering services of forwarding of goods after the Customs clearance, on behalf of their customer.
WAREHOUSING SERVICE PROVIDER – Company when rendering services of warehousing for facilitating storage of goods and other activities ancillary and / or incidental to warehousing.
TRANSPORTER – Company when providing their own trucks for transportation of the goods.
GOODS – Cargo to which any business under these conditions relates to.
PERSON – Natural person(s) or anybody 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 by air.
OWNER – Owner of the Goods or Transport Unit and any other Person who is or may become interested in them.
SDR – Refers to Special Drawing Rate. The SDR shall be defined by the International Monetary Fund and the value of the SDR shall be calculated as at the date when the settlement is agreed.
2. (A). Subject to sub-paragraph (B) below, all and any activities of the Company in the course of business, whether gratuitous or not, are undertaken subject to these conditions.
(B). If any legislation, to include regulations and directives, 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 Company 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.
3.The Customer warrants that 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 an agent for and on behalf of the Owner.
THE COMPANY WARRANTS
4. The Company reserves to itself full liberty as to the means and procedure to be followed in the performance of any service provided in the course of business undertaken subject to the conditions herein.
5. When the Company contracts to provide for any services, it shall have full liberty to perform such services itself or to subcontract on any terms whatsoever, the whole or any part of such services, unless specifically agreed to contrary under a separate agreement.
6(A). When the Company acts and on behalf of the Customer, the Company shall be entitled and the Customer hereby expressly authorise the Company to enter into all and any contracts on behalf of the Customer as may be necessary or desirable to fulfill the Customer’s instructions, and whether such contracts are subject to the trading conditions of the parties with whom such contracts are made or otherwise.
6(B). The Company shall, on express demand by the Customer, provide evidence of any contract entered into for and on behalf the Customer. Insofar as the Company may be in default of the obligation to provide such evidence, it shall be deemed to have contracted with the Customer as a Principal for the performance of the Customer’s instructions.
7. When the Company acts exclusively as a Freight Forwarder / Warehouse Service Provider / Transporter, the Company shall abide by the instructions of the customer in a manner suited to the requirements of the customer. If however, the Company is satisfied, at any stage, that a departure from those instructions is justified in the interest of the customer, it shall be at liberty to act accordingly.
8. In the absence of any specific instructions in writing issued by the customer, the Company acting as Freight Forwarder / Transporter is free to exercise its discretion in the choice of sub-contractors, modes of transport, transportation and routes. Provided further that in the absence of any such specific instructions in writing the Company shall be at liberty to exercise its own judgment for the delivery of the goods and for transport of the goods as a man of ordinary prudence.
9. In the cases where the Company as a Transporter engages trucks from an outside transporter(s) for transporting the goods on behalf of the customer, the Company shall not take any responsibility whatsoever, in respect of the goods, for which only the customer shall be responsible.
10. The Company, when acting as a Warehouse Service Provider, is free to do all acts, deeds and things as may be necessary, in order to provide and facilitate proper storage for goods and ensure their security. The Company, however, shall not be responsible for the administration, record keeping, maintain & update stock cards, detailing movement of goods going out of the warehouse and providing of any reports on such goods, unless it is specifically agreed upon under a separate agreement with the customer.
11. In all and any dealings with the Customs Authorities, Port / Airport Authorities or any such other Competent Authority on behalf of the Customer and/or Owner, the Company shall be deemed to be appointed and acts only as a Customs House Agent licensed under Regulation 3 of the Customs House Agent Licensing Regulations, 2004.
12. The Company shall act based on the documents / information provided by the Customer and shall believe that the documents / information provided by the Customer is true and correct and act accordingly. In the event, the documents / information provided by the customer proves to be incorrect, the Company shall not be responsible on behalf of the Customer for any legal proceedings that may be taken / initiated against the Customer and any legal actions that may be taken / initiated against the Company, the Company shall be completely indemnified for, by the Customer concerned.
13(A). Subject to sub-clause (B) below, the Company while acting as a Customs House Agent / Freight Forwarder / Warehouse Keeper / Transporter, as the case may be:
(i) Has a general lien and a right to detention over 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 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 and such charges shall be payable by the Customer or Owner to the Company.
(ii) Shall be entitled on at least 15 days notice in writing to the Customer, to sell or dispose of or deal with such goods or documents relating to goods at the expense of the Customer and apply the proceeds in or towards the payment of such sums;
(iii) Shall upon accounting to the Customer for any balance remaining after payment of any sum(s) due to the Company, 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 to the goods and the right exercised under this clause shall not be deemed to have been waiver of the Company’s right to take further legal steps to recover the dues.
13(B). When the goods are liable to perish or deteriorate, the Company’s right to sell or dispose of or deal with the goods, shall arise immediately upon any sum becoming due to the Company, subject only to the Company taking reasonable steps to bring to the Customer’s attention its intention to sell or dispose of the goods before doing so.
14. The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to any outside Custom House Agents / Freight Forwarders / Warehouse Service Providers / Transporters, including themselves.
15(A). Should the Customer, Consignee or Owner of the goods fails to take delivery at the appointed time and place, when and where the Company is entitled to deliver, the Company shall be entitled to store the goods or any part thereof, at the sole risk of the such Customer or Consignee or Owner, whereupon the Company’s liability in respect of the goods or that part thereof stored as aforesaid, shall wholly cease. The Company’s liability, if any, in relation to such storage shall be governed by these conditions. All costs incurred by the Company as a result of the failure to take delivery shall be deemed as freight earned and such costs shall upon demand, be paid immediately by the Customer.
15(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 at least 15 days notice 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 the Company to have any interest in the goods), any goods which have been held by the Company for a period of 60 days or more and which cannot be delivered as instructed; and
(ii) without prior notice, any goods which 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 the Company or third parties or to contravene any applicable laws or regulations.
16(A). No insurance shall be effected by the Company in respect of the goods (either under services of Freight Forwarder or Warehouse Service Provider or Transporter, as the case may be) except upon express instructions are given in writing by the customer and accepted to in writing by the Company. All insurances effected by the Company on such written request by the Customer are subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk, in the absence of any specific instructions with regard to exceptions and conditions of the policies, from the customer.
16(B). Insofar as the Company agrees to effects an insurance at the request of the customer, the Company acts solely as agent for the customer and the limit of liability under clause 31(A)(ii) of theses conditions shall not apply to the Company’s obligation under this clause.
17(A). Except under special arrangements previously made in writing by an officer of the company so authorized, or made pursuant to or under the terms of a printed document signed by the Company, any instructions relating to the delivery or release of the goods in specified circumstance, but not limited to, against payment or against surrender particular documents are acceptable by the Company, where the Company has to engage third parties to effect compliance with the instructions, only as agents for the Customer.
17(B). Despite the acceptance by the Company with regard to 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 the Company, and in the absence of evidence of payment (for the reason whatsoever) by such consignee or other person, the customer shall remain responsible for payment of such freight, duties, charges, dues, or other expenses.
17(C). The Company shall not be under any liability in respect of such arrangements as are referred to under sub-clause (A) and (B) hereof save where such arrangements are made in writing and in any event, the Company’s liability in respect of the performance of, or arranging the performance of, such instructions shall not exceed the limits set out in Clause (31)(A)(ii) of these conditions.
18. Any advice and information, in whatever form given, is provided by the Company for the customer only. The customer shall indemnify the Company against all loss and damage suffered as a consequence of passing such advice or information on to any third party, without the prior written approval of the Company.
19. Without prior agreement in writing by an officer of the Company so authorized, the Company shall not accept or deal with the 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, valuables, antiques, pictures, human remains, livestock, pets, plants. Should any customer nevertheless deliver any such goods to the Company, or cause the Company to handle or deal with any such goods, otherwise than under such prior written agreement, the Company shall have no liability whatsoever for or in connection with the goods, howsoever arising.
20. Except pursuant to instructions previously received in writing and accepted in writing by the Company, the Company shall not accept or deal with goods of a dangerous or damaging nature, nor with goods likely to harbour or encourage vermin or other pests, nor with goods liable to taint or affect other goods. If such goods are accepted pursuant to a special arrangement, but, thereafter, and in the opinion of the Company, constitute a risk to other goods, property, life or health, the Company shall, where reasonably practicable, contact the customer in order to require him to remove or otherwise deal with the goods, but reserves the right, in any event, to do so at the expense of the customer.
THE CUSTOMER WARRANTS
21(A). The description and particulars of any goods or information furnished or services required, by or on his behalf are true, full and accurate.
21(B). Any Transport Unit and/or equipment supplied by the customer in relation to the performance of any requested service is fit for purpose.
21(C). All goods have been properly and sufficiently prepared, packed, stored, labelled and/or marked, and that the preparation, packing, storage, labelling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods.
21(D). Where the Company receives the goods from the customer already stored in or on a Transport Unit, the Transport Unit should be in good condition, and is suitable for the carriage to the intended destination of the goods loaded therein, or thereon.
21(E). Where the Company provides the Transport Unit, on loading by the customer, the Transport Unit should be in good condition, and is suitable for the carriage to the intended destination of the goods loaded therein, or thereon.
21(F). The Customer shall be liable for any duties, taxes, imposts, levies, deposits or outlays of any kind levied by the authorities at any port or place for or in connection with the goods and for any payments, fines, expenses, loss, or damage whatsoever incurred or sustained by the Company in connection therewith.
22. Without prejudice to any rights under Clause 20, where the customer delivers to the Company or causes the Company to deal with or handle goods of a dangerous or damaging nature, or goods likely to harbour or encourage vermin or other pests, or goods liable to taint or affect other goods, whether declared to the Company or not, he shall be liable for all loss or damage arising in connection with such goods, and shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the goods may be dealt with in such manner as may deem fit by the Company, or any other person in whose custody they may be at any relevant time.
23. The customer undertakes that no claim shall be made against any director or employee of the Company which imposes or attempts 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 the Company against all consequences thereof.
24. 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, and
(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 shall not become liable to any other party, and
(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, and
(d) any claims of a general average nature which may be made on the Company
25(A). The customer shall advance such sums as may be required by the Company, for meeting disbursement on account of the customer.
25(B). The customer shall pay the bills presented by the Company within 15 days of their presentation or as otherwise agreed (without reduction or deferment on account of any claim, counterclaim or set-off) failing which penal interest at 3% above banks lending rate of interest shall become due and payable.
26. Where a 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.
27. Any outstanding balance accumulated over and above the offered credit period, such balance shall be settled immediately by the customer, subject to any individual agreements agreed upon.
LIABILITY AND LIMITATION
28. The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgment.
29. The Company shall be relieved of liability for the loss or damage, if any, and to the extent that, such loss or damage is caused by:
(a) any act of God or act of State, war, riot, civil commotion, terrorism, etc.; or
(b) 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
(c) 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.
(d) any false representations made or inaccurate information provided by the customer with regard to the goods and / or services.
30. 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.
31(A). Subject to clause 2(B) and 15(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 0.25 SDR per kilo of the gross weight of any good lost or damaged whichever shall be the lower.
(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 0.25 SDR per kilo of the gross weight of the subject goods of the said transaction, or
(c) 5,000 SDR in respect of any one transaction, whichever shall be the least.
(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) 5,000 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.
For the purposes of clause 31(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.
31(B). Subject to sub 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 30 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.
31(C). Save in respect of such loss or damage as is referred to at sub-clause (A) and subject to sub 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.
31(D). On express 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. The details of the Company’s additional charges will be provided upon request.
32(E). Any claim by the customer against the Company arising in respect of any service provided for the customer, or which the Company has undertaken to provide, shall be made in writing and notified to the Company 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 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.
32(F). Notwithstanding the provisions of sub-paragraph (A) above, the Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any service provided for the customer, or which the Company has undertaken to provide, unless a suit be brought and written notice thereof given to the Company within six months from the date of the event or occurrence alleged to give rise to a cause of action against the Company.
33. In addition to the conditions mentioned above, the following liability and limitations are also applicable:
(a) The Company is liable only for the faults attributable to itself or it’s employees.
(b) The Company shall not be liable to the customer for consequential loss or loss market howsoever caused.
(c) The Company shall not be liable for acts or omissions for third parties such as re-forwarders, carrier etc. provided it has shown due diligence in the choice of such third parties. If it can be proved that the Company has not done so, its liability shall not exceed that of any third party held liable, whom it had contracted with.
(d) The liability of the Company for the loss of or damage to goods will be fixed on the basis of the market value of the goods at the time of acceptance by the Company and will not under any circumstances, exceed that market value or a sum at the rate of Rs. 14/- per kilo of the gross weight of the goods lost or damaged, whichever is less, subject to a maximum of Rs. 15,000/- for each occurrence of loss.
(e) The Company may arrange/provide road transport for the customer and in such event the Company shall not be held responsible as a carrier or assume the liability of a carrier.
(f) In the event of the liability of the Company being sought to be varied, the variation shall only be affected by a written document signed by the Company. In the absence of such a document the liability of the Company shall be governed as provided herein.
34. Any claims against the Company shall be time barred within a period of three months commencing from the day of delivery of the goods to the customer or consignee or owner named in the contract, as the case may be or, if no delivery has taken place from the date of the conclusion of the forwarding contract.
35. Any dispute between the Company and the Customer arising in connection with performance of the contract shall be settled in accordance with the provisions of the Indian Arbitration Act at the principal place of business of the Company. Neither Company nor Customer shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter has been submitted to arbitration and determined. The decision given by the arbitrators shall be final and binding upon both parties provided the arbitrators to be appointed under this clause shall be appointed only from the panel of arbitrators duly approved by FFFAI.
JURISDICTION AND LAW
36. Any act or contract to which these conditions apply shall be governed by Indian Law. Any dispute arising out of any act or contract to which these conditions apply, shall be subject to the jurisdiction of the Bangalore courts only.
Note: The above conditions are subject to changes from time to time, without any notice.