Standard Trading T&Cs with Customers

Master Terms and Conditions

DEFINITIONS & INTERPRETATION
1. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Master T&Cs.
  In these Master T&Cs, the following words shall have the following meanings:
  Agreement means this agreement which all Services provided by the Company (including provision of information or advice), whether gratuitous or not, shall be subject to, and which comprises of:
  1. The Quotation; and
  2. The Service Specific Terms and Conditions [The Transport T&Cs and/or Customs T&Cs and/or, Warehouse T&Cs and/or Collateral Management T&Cs of the Company, which ever are applicable to the Services rendered by the Company] (the Service T&Cs); and
  3. The Master Terms and Conditions of the Company (the Master T&Cs)
  4. Any SOP agreed in writing and signed by the Directors of the Company and Customer
  to the exclusion of any of the Customer’s own standard terms and conditions;
  Applicable Law means all laws, legislation, statutes, regulations, requirements and other enactments applicable to the provision of the Services;
  Control means, in relation to any entity:
  1. the right to exercise, directly or indirectly, more than 50 per cent. of the voting rights attributable to the management of that entity; and/or
  2. the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that entity;
  Company means Reload Logistics FZCO and / or any of its subsidiary, inter-related or associated companies under common Control, as may be contained in the Quotation under whatever trade name it may assume from time to time (which common Control need only be evidenced by a confirmation by the Company’s auditors);
  Company Personnel means all personnel of the Company involved in the performance of Services under the Agreement;
  Customer means the customer to whom Services are provided in terms of the Agreement - including any third party which becomes a party to the Agreement between the Company and the Customer, any party who is listed in the Quotation, any party who is accepting or otherwise agreeing to this Agreement, any holder of a warehouse receipt and / or Holding Certificate or like document in who’s name same is issued by the Company, or any person to whom the Company provides the Services.
  Dangerous Products means Products that are or may become dangerous, hazardous, noxious (including radioactive materials), inflammable, explosive or which are or may become liable to damage any property or person whatsoever and/or Product that is classified as dangerous under any classification from time to time and/or Product considered by the Company in its sole discretion to be dangerous, potentially dangerous, inflammable, flammable or noxious or which by their nature are or may become liable to cause injury or damage to any person, goods or property whatsoever.
  (The expressions “Products liable to cause injury or damage” shall include Products likely to harbour or encourage vermin or pests);
  Duration means the duration of the Agreement which shall commence on the Start Date and shall, subject to the right of earlier termination set out in the Master Terms and Condition, remain in force until terminated by either Party giving the other Party not less than 30 (thirty) calendar days’ written notice.
  D&D Charges mean delay time charges / demurrage charges which shall be charged by the Company for any delay outside of its reasonable control, which exceed the allowed times /days, as set out in the Quotation or as otherwise agreed in writing.
  Executive Authorization means agreement by the Parties in writing and signed by a duly authorized representative of each of the Parties which must include two authorized representatives of the Company.
  Force Majeure includes official or unofficial industrial action, industrial sabotage, industrial dispute (in each case, whether or not relating to that Party’s workforce), fire, shortage of, inability or delay in obtaining fuel, supplies, labour, materials or services, acts of God, acts of war, terrorism, shortage of fuel, software defects or failures, epidemics, pandemics, abnormal weather conditions, a court order or injunction-including arising as a result of third party claims and other events which are beyond a Party’s reasonable control and, without derogating from the generality of the foregoing, which include, but are not limited to:
  1. war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or
  2. any act of terrorism (For the purpose of this endorsement an act of terrorism means an act, including but not limited to the use of force or violence and / or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear);
  3. any epidemic or pandemic;
  4. law or act of Government or statutory authority.
  Group means, with respect to a Party, that Party and any entity Controlled by, Controlling or under common Control with that Party;
  Parties means the Company and the Customer and Party means either of them respectively as the context may indicate;
  Payment terms means the period in which the Customer must make payment to Company and shall be as stated in the Quotation, failing which, then within 15 days from receipt by the Customer of the invoice;
  Prices mean, subject to clause 5.1. of the Master T&Cs, the prices payable for the Services as set out in the Quotation.;
  Product means the product/commodity as stated in the Quotation and/or as declared by the Customer to the Company and/or any goods handled, transported or dealt with by or on behalf of or at the instance of the Company or which come under the control of the Company or its agents, servants or nominees on the instructions of the Customer, and includes any container, transportable tank, flat pallet, package or any other form of covering, packaging, container or equipment used in connection with or in relation to such goods;
  Prohibited Goods means any goods, equipment or technology which, at the relevant time, may not lawfully be handled and/or transported by reason of any Sanctions or which is subject to any restriction (including the requirement for an export licence or other consent or permission) by reason of any Sanctions or other Applicable Laws;
  Prohibited Person means a person on any list of individuals or entities with whom transactions are currently prohibited or restricted under any Sanctions, including the consolidated list of financial sanctions targets in the United Kingdom or the US list of Specially Designated Nationals;
  Quotation / Quote means any quotation, fee proposal or service offering from the Company, expressly or tacitly accepted by the Customer, in whatever form contained, including but not limited to emails, Company service agreements and stand-alone agreements incorporating these T&Cs;
  Sanctions means any sanction, prohibition, restriction or penalty (or any risk of any sanction, prohibition, restriction or penalty) whatsoever imposed by any state, country, international governmental organization or other relevant authority, including the United Nations, European Union, United Kingdom or United States of America; and
  Services means the services provided by the Company to the Customer (all Transport, Escort services, Customs Clearance services and Collateral Management services are provided by the Company acting as agent for and on behalf of the Customer, unless expressly stated otherwise in writing) and/or as more fully described in the Quotation;
  Service Providers means any service provider engaged by the Company on behalf of the Customer to fulfil any of the Services.
  Start Date shall be the earlier of the date of acceptance of the Quotation or the tendering of Product to the Company for the provision of Services;
  Territory means the countries in which and through which Services shall be provided;
  Weight/quantity/unit means the amount of gross metric tons and/or net metric tons and/or number of bags / bundles / pieces of Product declared by the Customer to the Company or if weighed by the Company, then as determined by such Weighing (the Parties acknowledge that weight variances may occur due to the nature of the Product and moisture content);
2. Clause headings are for convenience of reference only and shall have no effect on the interpretation of the Agreement. Unless the context otherwise requires, a reference to a Clause in these Master T&Cs is to a clause of these Master T&Cs.
3. The documents comprising this Agreement shall be read as one document. In the event of any ambiguity, inconsistency or a conflict between the provisions of any of the documents comprising the Agreement, the documents take precedence in the order they appear in the definition.
4. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
5. In the Agreement, unless the context otherwise requires:
  1. words in the singular shall be deemed to include the plural and vice versa;
  2. words importing any particular gender shall include all other genders;
  3. references to a person shall include natural persons and artificial bodies of persons whether corporate or incorporate;
  4. the words include or including shall be deemed to have the words “without limitation” following them; and
  5. a reference to writing or written includes email (provided the email is sent in accordance with Clause 14.1).
6. Compulsory legislation
  1. If an international convention or national law applies compulsorily to any element of the Services (Compulsory Legislation), this Agreement shall, as regards such element of the Services, be read as subject to such Compulsory Legislation and nothing in this Agreement
    shall be construed as a surrender by the Company of any of its rights or immunities, or asan increase of any of its responsibilities or liabilities, under such Compulsory Legislation.
  2. If any part of this Agreement is to any extent inconsistent with any Compulsory Legislation which cannot be departed from, such part of the Agreement shall as regards such element of the Services be overridden to that extent and no further.
7. Should this Agreement or any part thereof be translated into any other language – the English text shall prevail in the event of any inconsistency.
APPLICATION
1. These Master T&Cs shall apply to all Services provided by the Company provided that:
  1. the provisions of Part 1 of the Master T&Cs shall apply to all Services;
  2. the provisions of Part 2 of the Master T&Cs shall only apply to the extent that the Company provides the Services as agent; and
  3. the provisions of Part 3 of the Master T&Cs shall only apply to the extent that the Company provides the Services as principal, including where the Company is held by a court of competent jurisdiction to have acted as principal despite the Company having noted its capacity as that of agent.
  By requesting that the Company perform Services, and / or by executing the booking confirmation and / or other documentation, including any Quotation, to which these terms and conditions apply, the Customer consents and agrees to be bound by the terms hereof and represents and warrants the truth and accuracy of the matters set forth herein and/or represented and / or warranted by the Customer.
  Unless capacity is expressly stated, the Company shall be entitled to procure any or all of the services as an agent, or, to provide those services as a principal.
PART 1 – General Conditions
OBLIGATIONS OF THE COMPANY
1. During the Term, the Company shall:
  1. provide the Services, on a non-exclusive basis, subject to availability and, where performed by a Service Provider, subject to availability and capacity thereof.
  2. provide the Services, with all reasonable care, diligence, skill and judgment and shall have due regard to the interests of the Customer in exercising any discretion under the Agreement;
  3. comply with all Applicable Laws, including any statutory requirements applicable to the employment of all Company Personnel; and
  4. maintain such licences and permits as are required by Applicable Law
OBLIGATIONS OF THE COMPANY
1. The Customer represents and warrants that:
  1. it is either the owner of the Products or acting as agent of such owner and is authorised to contract with the Company on the terms of the Agreement;
  2. all Products will be safe for the purposes of the Services and any operations or transactions that may affect the Products, provided that the Products are dealt with by the Company in accordance with all reasonable instructions given by the Customer;
  3. all Products have been properly and sufficiently prepared, packed, stowed, labelled and/or marked by or on behalf of the Customer, and the preparation, packing, stowage, labelling and/or marking are appropriate to the Services and any operations or transactions that may affect the Products and are in compliance with all Applicable Laws;
  4. any Transport Unit and/or equipment supplied by the Customer in relation to the performance of any requested Service is fit for purpose and where the Company receives the Product from the Customer already stowed in or on a Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the product loaded therein, or thereon;
  5. save where the Company has provided its written consent in accordance with Clause 4.3(a), no Products comprise, contain or are packaged in any Dangerous Products;
  6. no Products comprise or contain any drugs, prohibited or stolen goods, contraband or other illegal material or substance, coin, bullion, precious stones or cash/securities;
  7. the description of nature, condition, quality, weight, quantity and value of the Products are full and correct;
  8. the Products do not include any Prohibited Goods;
  9. neither the provision of the Services nor any payment or other transaction relating to the Services will or might expose the Company or any of its officers, employees, servants, agents, or insurers or any of the Service Providers to any Sanctions or any other breach of Applicable Law; and
  10. neither the Customer nor any person it trades with is a Prohibited Person or is owned or controlled by or is acting on behalf of a Prohibited Person; and
  11. information supplied to the Company by the Customer or any other person acting on the Customers behalf relating to the Product or Services and any other matters incidental thereto shall be accurate and complete; and
  12. the Customer shall act in good faith towards the Company and shall not approach the Company’s sub-contractors introduced to the Customer through Services performed by the Company, directly, for the same or similar services, for a period of 12 months after the provision of the Service by the Company. Breach hereof shall entitle the Company to a 10% commission on any service fee payable to such sub-contractor.
2. The Customer shall promptly provide the Company with such information (including any information required by the Company under the relevant Service T&Cs), execute all documents and do all acts and things reasonably required in order to enable the Company to:
  1. arrange and/or safely perform the Services; and
  2. comply with all Applicable Laws.
3. Dangerous Products
  1. The Customer shall not deliver to the Company, or cause the Company to otherwise deal or handle, Dangerous Products unless there is Executive Authorisation to accept such Dangerous Products, and additional charges may apply in respect of any Dangerous Products.
  2. If the Company consents to accept Dangerous Products in accordance with Clause 4.3(a), the Customer shall:
    1. give the Company written notice of the nature of the Dangerous Products prior to the Company’s receipt of the same, including:
      1. the characteristics of the Dangerous Products and the appropriate manner and method of storage, handling and/or transportation of the Dangerous Products (as applicable); and
      2. all other information necessary for the Company to perform the Services in respect of the Dangerous Products in accordance with Applicable Law; and
    2. obtain all necessary approvals, consents and/or licences from the relevant regulatory authorities in order for the Company to accept such Dangerous Products and carry out the Services in relation to them.
  3. The Dangerous Products must be distinctly marked on the outside so as to indicate the nature and characteristics of the Dangerous Products and so as to comply with Applicable Law.
  4. Dangerous Products that have been delivered to the Company in breach of Clause 4.3(a) or any Product which, in the opinion of the Company, constitute a risk to other products, property, health or life may, at the sole discretion of the Company or any other person in whose custody they may be at the relevant time and without notice to the Customer, be destroyed or otherwise dealt with at the expense and risk of the Customer and without liability to the Company.
4. Contamination
  If any of the Products are likely to cause contamination, soiling and/or remedial cleaning expenses to be incurred, or are likely to taint or otherwise affect other products, the Company may, without notice to the Customer, destroy or otherwise deal with such Products at the expense and risk of the Customer and without liability to the Company.
5. Failure to take delivery and deterioration
  Should the Customer, consignee or owner of the Product fail to take delivery at the appointed time and place when and where the Company is entitled to deliver / return the Product, the Company shall be entitled to store the Product, or any part thereof, at the sole risk of the Customer, whereupon the Company’s liability in respect of the Product, or that part thereof, stored as aforesaid, shall wholly cease. 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 by the Customer.
  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 28 days notice in writing to the Customer, or (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 Product) without notice, any Product which have been held by the Company for 60 days and which cannot be delivered as instructed or which have not been collected after termination for any reason; and (ii) without prior notice, any Product 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.
PRICES AND PAYMENT TERMS
1. Should no fixed fee period be applicable, the Company may, in its absolute discretion, vary the Prices at any time by giving fourteen calendar days’ written notice to the Customer. In fixed fee period instances, Prices are fixed for a period of 3 months. After each 3-month period, the Company may, in its absolute discretion, vary Prices by giving fourteen days’ written notice to the Customer. Such new prices shall be applicable for at least the following 3-month period. Notwithstanding the foregoing, the Company shall be entitled to increase its Prices at any time should there be an unforeseen increase in fuel prices or levies and/or disadvantageous foreign exchange movement, and/or adverse movement in costing or procurement or the like.
2. The Company shall invoice the Customer the Prices for the Services and any applicable D&D Charges at any time after the performance of the Services. The Company’s invoices raised pursuant to this Clause 5.2 shall be due for payment within the Payment terms.
3. The Prices are exclusive of value-added tax and all other applicable sales taxes and duties, prices are reviewed from time to time and the Company may amend prices up to the point of acceptance of the Quotation.
4. Despite the acceptance by the Company of instructions from the Customer to collect Prices, fees, 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 whatever reason) by such consignee, or other person, the Customer shall remain responsible for such Prices, fees, freight, duties, charges, dues, or other expenses.
5. All payments due from the Customer under the Agreement shall be made free and clearfrom:
  1. any deduction in respect of bank charges or otherwise; and
  2. any set-off, abatement or counterclaim of any kind
6. If the Customer, in good faith, disagrees reasonably on the grounds that there is an error with the amount of, or any amounts within, any invoice submitted by the Company, the Customer shall pay the amount of the invoice that is payable and not disputed in accordance with the provisions of Clause 5.2 and shall provide its justification for disputing the amount of, or any amounts within the invoice, in writing within 7 calendar days of the date of the relevant invoice, failing which the invoice is deemed correct. The Company and the Customer shall endeavour to resolve the dispute in accordance with Clause 14.12. Following resolution of the dispute any amount agreed or found to be payable by the Customer shall be paid in accordance with Clause 5.2.
7. Disputes raised by the Customer in accordance with Clause 5.6, that are frivolous or without merit, as is deemed in the sole discretion of the Company, and those disputes resolved in favour of the Company shall be subject to the terms of Clause 5.8.
8. Without prejudice to any other rights or remedies of the Company (whether expressly specified in the Agreement or otherwise), in the event that the Customer fails to pay any sums due under this Agreement on their due dates for payment, the Company shall be entitled to:
  1. on written notice, suspend performance of the Agreement (which may include the suspension of all or any Services under this Agreement) until all sums owing have been paid in full;
  2. charge interest on all sums due at the higher of 8%. per annum over the base lending rate from time to time of the Company’s bank or the maximum statutory allowed rate, from the due date until final payment (whether before or after judgement), such interest to accrue on a daily basis and to be compounded at the end of each calendar month; and/or
  3. terminate the Agreement immediately by giving written notice to the Customer, provided that the Company first gives the Customer 7 calendar days’ written notice requiring payment of the sum due and the Customer has failed to make payment during such period,
  provided always that the rights set out in this Clause 5.5 will not arise if the Customer has disputed the relevant invoice in accordance with Clause 5.4., should a dispute however be resolved or determined in favour of the Company, 5.5(b) shall apply from date of invoice.
9. Lien
  1. The Company shall have a general lien on the Products and documents relating to the Products and Services, any funds held and any other goods in respect of which the Company is providing Services to the Customer (Other Goods) and any documents relating thereto for payment of all monies due by the Customer to the Company under this Agreement or if the Company reasonably forms the view that the Customer is or is likely to become unable to pay its debts. The Company shall also have a general lien on the Products and any documents relating to the Products, any funds held and Other Goods and any documents relating thereto for all sums due from the Customer to the Company and/or any member of the Company’s Group under any other contract. The lien and right of retention shall also extend to any insurance claims collected on behalf of the Customer by the Company, and as far as necessary, the right shall be deemed to have been
    transferred to the Company for further security.
  2. The Company shall be entitled to continue to charge the Customer for any Prices accruing during the exercise of its lien. The Company reserves the right to move any Products which it holds under lien to alternative storage, provided it shall use reasonable endeavours to keep the Products safe.
  3. Where the Company elects to exercise its right of lien in accordance with this Clause 5.6, it shall have the right to, at the costs of the Customer, sell or otherwise dispose of the Products, Other Goods and documents to satisfy the debt, provided that the Company first gives the Customer 7 (seven) calendar days' written notice. The Company shall be entitled to use any monies realised to satisfy the debt and to pay any reasonable costs of sale or disposal. It is specifically agreed that the Customer waives the need (if any) of the Company to obtain a court order to dispose of the Products, documents, funds or Other Goods, and that the Company may do so at the expiry of the notice set out herein.
RECORDS
1. The Company shall maintain records as required by any regulatory or governmental body having legal jurisdiction over the Company or by a requirement of Applicable Law and prepare and retain such documents, reports and systems entries (Records) as are customarily kept in relation the performance of the Services in each case for the longer of (i) one year from the date of creation or generation, and (ii) any retention requirement imposed by Applicable Law, provided that in respect of any Records relating to a claim or dispute, such Records shall be retained until such time as that claim or dispute has been finally resolved.
2. The Customer may, from time to time, request copies of any Records relating exclusively to the Services as may be reasonably required by the Customer, and the Company shall aim to provide them to the Customer within 14 calendar days of such request, but otherwise they shall be provided within a commercially reasonable time, or as required by any regulatory or governmental body. The Customer shall bear the cost associated with the Company fulfilling such requests.
3. The Customer may, from time to time, by a minimum of 2 clear working day’s prior written notice to the Company, request access to the Company’s premises for the Customer or the Customer’s independent appointed representative(s) to conduct an inspection of the Products, or audit any Records relating exclusively to the Services, for the purpose of ensuring that the Services are being provided in accordance with the terms and conditions of this Agreement. Any such inspection or audit shall be performed during normal office hours and shall be at the Customer’s expense, and the Customer shall ensure that such inspections or audits do not interfere with the provision of the Services or services to other customers. The Company shall provide all reasonable assistance to the Customer when performing such inspections or audits.
RECORDS
1. The Company’s liability in respect of the Services shall be limited and determined in accordance with the provisions of this Clause 7 and the provisions of the relevant Service T&Cs.
2. Liability for loss or damage to Customer property (other than the Products)
  1. The Company shall only be liable to the Customer for loss of or damage to the Customer’s property (other than the Products) caused by the Company’s proven negligence or willful default, such liability shall be limited to the lesser of the reasonable repair cost or replacement cost (with an item the same age and in the same condition) of that property and USD 1,000,000 per incident or series of associated incidents.
  2. Save as set out in this Clause 7.2, the Company shall not be liable for loss of or damage to the Customer’s property (other than the Products) howsoever arising, whether caused by negligence, willful default or otherwise.
3. Notwithstanding any other provision of the Agreement but subject to the remainder of this Clause 7, the Company’s liability in respect of all claims, losses or damages, whether arising from tort (including negligence), bailment, breach of contract, breach of statutory duty or otherwise under or in connection with the Agreement, its performance or any failure or delay in performance or termination of the Agreement shall be limited so that:
  1. the Company shall have no liability for any loss of profit, loss of sales, loss of business, loss of goodwill or reputation, third party claims (in each case whether direct or indirect) or for any indirect or consequential loss;
  2. the Company’s maximum aggregate liability for all such matters that arise or incur under the Agreement will be limited to an amount equal to the Prices paid under theAgreement.
4. The Company’s liability:
  1. under Clause 7.2;
  2. for any loss or damage to, or delay in delivery of, the Products to which a Service T&Cs apply;
  3. for any loss or damage arising out of Customs Services to which a Service T&Cs
  apply, shall not be included when calculating the Company’s aggregate liability under Clause 7.3(b).
5. Nothing in this Agreement shall exclude or restrict the Company’s liability for death or personal injury caused by its negligence or any other act or omission, liability for which may not be excluded or limited under Applicable Law.
6. Any and all liability whatsoever of the Company arising out of or in connection with the Services shall cease unless written notice thereof is given to the Company within 6 (six) months of the instance giving rise to the claim. Further, where such written notice is given, all liability whatsoever of the Company shall nevertheless cease unless suit is brought within 24 (twenty four) months after the instance giving rise to the claim.
7. Notwithstanding any provision to the contrary contained anywhere else in this Agreement, the Company shall have no liability whatsoever for any loss and /or damage and /or claim and /or expense of whatsoever nature, arising directly or indirectly from or in connection with or any action trying to control, prevent or suppress (regardless of any other cause or event contributing concurrently or in any other sequence to the loss) an incident of Force Majeure.
INDEMNITY
1. The Customer shall promptly indemnify the Company against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgements of whatsoever nature howsoever assumed, incurred or suffered by the Company, its sub-contractors or any member of the Company’s Group, their respective employees, servants, agents, insurers or reinsurers as a result of or in connection with any of the following:
  1. any breach by the Customer of any of the warranties or undertakings given or obligations undertaken by the Customer under the Agreement, including any of the provisions of Clause 4;
  2. any cause arising from or with respect to the Products (including Dangerous Products) or Services for which the Company is not responsible;
  3. the Company becoming liable to any other party (including to any customs authority, customs inspection stations, port and harbour authorities and any other authorities having legal jurisdiction over any element of the Services and/or the Products) and/or incurring additional costs or any other expenses by reason of the Company carrying out the Customer’s instructions;
  4. the Company incurring liability in excess of its liability under the provisions of the Agreement regardless of whether such liability arises from, or in connection with, a breach of contract, negligence, willful misconduct or breach of duty by the Company, any member of the Company’s Group or their respective agents, servants or sub-contractors;
  5. the negligence of the Customer; or
  6. any claims of a general average nature which may be made on the Company (Where liability arises in respect of claims of a general average nature in connection with the Products, 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)
CLAIMS HANDLING
1. The Company shall notify the Customer in the event of any third-party claim or incident arising out of or in connection with the Services and will give to the Customer and/or its insurers any information and assistance that the Customer and/or its insurers may require in respect of such claim.
2. The Customer will assist the Company in pursuing claims against third parties whose acts or omissions have given rise to claims by the Customer against the Company and the Customer has brought such claims against the Company (Third Parties). Without prejudice to the generality of the foregoing, the Customer:
  1. will, on demand, assign to the Company any claims it may have against ThirdParties;
  2. consents to the Company using its name in the context of any legal proceedings initiated to claim against Third Parties;
  3. will furnish the Company with all information available relating to claims against Third Parties and the Company shall have the right to, but not the obligation to appoint adjusters, assessors and/or surveyors and to control all negotiations, adjustments and settlements in connection with such claims; and
  4. undertakes not to claim against Third Parties on its own account unless the Company is completely indemnified from all liability.
INSURANCE
1. During the Term, the Company shall maintain in force policies of insurance as may be reasonable or required by Applicable Law.
2. The Customer shall be responsible for all risk insurance in respect of the Products and the Services, sufficient to cover loss of or damage to the Products, its liability under the Agreement and as may be required by Applicable Law, including but not limited to cover against any loss or damage caused by fire, theft, flood, heating, dampness, smoke, dust, oil, explosion, un-explained disappearances, social unrest, acts of God or other risks as required by the Customer or any financial institutions as shall be directed by the Customer. The Customer shall ensure that all such insurance policies include the Products themselves, duties, VAT and other statutory charges that may arise, together with containing a waiver of subrogation rights against the Company. The Customer further warrants that it shall not claim against the Company for any event of loss which should be conventionally under all risk cargo insurance policy, on the grounds that the Customer has failed to take out all-risks cargo insurance, or insufficient all-risks cargo insurance cover, or any applicable deductibles or its underwriter denying its claim under such all-risks cargo insurance or any other reasons.
3. the Company shall not be under any obligation to effect a separate insurance on the Products, except upon express instructions given in writing by the Customer and accepted in writing by the Company, and all insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk. Insofar as the Company agrees to effect insurance, the Company acts solely as agent for the Customer.
FORCE MAJEURE
1. Subject to the remaining provisions of this Clause 11 and D&D Charges, neither Party shall be liable to the other for any delay or non-performance of its obligations under the Agreement and/or loss or damage to Products, to the extent that such delay, non-performance, loss or damage is due to a Force Majeure.
2. In the event that either Party is delayed or prevented from performing its obligations under this agreement by a Force Majeure, such Party shall:
  1. give notice in writing of such delay or prevention to the other Party as soon as reasonably possible, stating the commencement date, the extent of such delay or prevention, the cause thereof and its estimated duration;
  2. use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under the Agreement and to ensure security of the Product; and
  3. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
3. As soon as practicable following the affected Party’s notification, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure and to facilitate the continued performance of the Agreement.
4. During any period during which any Party is delayed or prevented by Force Majeure from performing all or any of its obligations under the Agreement (Period of Force Majeure) the Agreement shall be deemed to be suspended in respect of the affected obligations until such time as is reasonably practicable after the expiry of such Period of Force Majeure at which time both Parties shall resume their obligations under this Agreement.
5. If:
  1. the Company is prevented by Force Majeure from providing the Services either at all or to a substantial extent; and
  2. the Period of Force Majeure exceeds 30 calendar days,
  then at any time on or after the expiry of that period either Party may terminate this Agreement immediately by serving a written notice on the other Party.
6. Notwithstanding the provisions of Clause 11 if the Company incurs any additional costs including D&D Charges due to any delay by reason of Force Majeure or in complying with its obligations under Clause 11, the Customer shall be liable for such D&D Charges and pay the same to the Company.
7. Nothing in this Clause 11 shall affect the liability of either Party to pay to the other the amounts due under this Agreement.
ANTI BRIBERY
1. Each Party agrees, confirms and undertakes that:
  1. it has not and will not, and none of its employees, officers, directors, contractors, subcontractors and agents has or will, directly or indirectly, pay, give, deliver, receive or agree (or undertake to pay, give, deliver, receive or agree) any bribe, pay-off, kick-back, gift, gratuity, commission, amount or other thing of value, or any interest-free loans, contributions or donations, in any way or form and whether in local or foreign currency, in the country where the Services are provided or any other place where such conduct relates to the Agreement, in each case in violation of any Applicable Laws, including any applicable anti-corruption legislation or similar legislation to any person including any government officials or employees, political parties, political party officials or political candidates or third persons with influence over government officials or employees; and
  2. it has and shall maintain in place an ethics or compliance program which implements internal procedures to prevent and detect violations of Applicable Laws, and to promote ethical behaviour by and within each Party's organisation and business.
TERMINATION
1. Without prejudice to any accrued rights and remedies under the Agreement, the Agreement may be terminated immediately by either Party by written notice to the other Party on the occurrence of any of the following events (provided such notice to terminate is given within 3 months of the occurrence of the event):
  1. if the other Party commits any material breach of any of its obligations under the Agreement, which it fails to remedy within (fourteen) 14 calendar days of the date of service of a written notice specifying the breach (or such longer period as the notice may specify);
  2. if the other Party enters into liquidation or administration or business rescue (or local equivalent to the foregoing) whether compulsory or voluntary otherwise than for the purpose of amalgamation or reconstruction or compound with its creditors or has a receiver (including an administrative administrator, trustee or similar officer) appointed over all or part of its assets or its undertaking or part thereof or if it shall make any composition or arrangement with its creditors or if any action, application, petition or proceeding shall be initiated relating to any of the above matters or to any inability to pay debts or to credit worthiness or if it is unable to pay its debts.
2. It is specifically recorded that as at the date of termination, all amounts owed by the Customer to the Company shall immediately become due and payable and shall be paid to the Company to enable the Company to release the Customer’s Products.
MISCELLANEOUS
1. Notice
  1. Any notice given by either Party to the other in connection with any matter relating to the Agreement (including service of legal process) shall be in writing and in English and shall be sent to the relevant Party at the address and email addresses set out in the Quotation, failing which at the registered address of the relevant Party and the last two email addresses used by the relevant Party to communicate with the other Party.
  2. Notices and legal process may be given, and are deemed received:
    1. by hand against signature for receipt, on the date of its receipt; or by email, on delivery to the addresses, provided the email has been sent to at least 2 different email addresses and each of the 2 different email addresses have received the email evidenced by a read receipt.
  3. This Clause will not operate so as to invalidate the giving or receipt of any notice or legal process which is actually received by the addressee other than by a method referred to above.
2. Assignment
  1. Subject to Clauses 14.2(b) and 19, neither Party shall assign, transfer or sub-contract any of its rights and obligations under the Agreement in whole or in part or the benefit thereof or its rights thereunder without the other Party’s prior written consent (such consent not to be unreasonably withheld or delayed).
  2. The Company may assign without the prior written consent of the Customer, all or any of its rights and obligations under this Agreement to any member of the Company Group. For the avoidance of doubt, the Company may at its election perform all or any Service or provide advice or information, whether gratuitous or not, either itself or it may procure that any member of the Group undertakes such Service or provides such advice or information as principal upon and subject to the terms and conditions contained herein which shall apply mutatis mutandis to the Customer and any such member of the Group.
3. Variation
  Any variation, modification, amendment or addition to the Agreement must be by way of Executive Authorization.
4. Revision of these Master T&Cs
  The Company reserves the right to, and may, from time to time update these Master T&Cs. Any such revisions will be published as an amended version on the Company’s online resources available by selecting the hyperlink on the Company’s Quotations, Email signatures or upon request. The Customer is advised to re-read the Master T&Cs on a regular basis. Continued engagement with the Company and/or use of the Services after amendments are made to the Master T&Cs, shall, unless otherwise agreed by way of Executive Authorization, be deemed as acceptance of the updated Master T&Cs.
5. Waiver
  The waiver by either Party of a breach or default of any of the provisions of the Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any extension of time, relaxation, delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
6. Validity
  If any court or administrative body of competent jurisdiction shall find any provision of the Agreement to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt, in good faith, to substitute any invalid or unenforceable provision with a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objective of the invalid or unenforceable provision.
7. Announcements
  The Parties agree that (save as required by Applicable Law) neither of them will make any announcement to the public or any section thereof in connection with the existence of or operation of the Agreement without first obtaining the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) as to the text and method of such an announcement. save that the Company shall be entitled to name the Customer as such in its marketing material.
8. Confidentiality
  1. Each Party agrees to treat as secret and confidential and not at any time nor for any reason disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information supplied by or obtained from the other Party, including the Agreement and information relating to the Products, Services, Prices, customers, marketing, promotions, business affairs, operating methods, administration systems, finances or any such information relating to a supplier, customer or client of the other Party save to the extent that such information is:
    1. already in its possession other than as a result of a breach of this Clause 14.7;
    2. in, or subsequently becomes, in the public domain other than as a result of a breach of this Clause 14.7;
    3. required by Applicable Law;
    4. disclosed to the professional advisers, auditors and bankers of each Party;
    5. disclosed after the other Party has given written approval; or
    6. used for the performance of the obligations under the Agreement.
  2. Each Party undertakes to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this Clause 14.7 by its employees, agents and any sub-contractors.
  3. Should a separate stand-alone non-disclosure and/or confidentiality agreement be entered into between the Company and the Customer, the same shall supersede the provisions of this Agreement in as far as there is any direct conflict.
9. Data Protection
  Each Party shall comply with all applicable requirements of any data protection and/or privacy law which applies to that Party.
  The Customer’s information, including personal information will be stored electronically in a database and electronic platform (and where appropriate, some information may be retained in hard copy), which will be accessible to all the Company’s subsidiary, inter-related or associated companies under common control (locally and abroad) and the provision of the above-mentioned information including personal information indicates the Customer and its Directors hereby consent to the collection, processing, storage, retention, transfer dissemination, use and destruction of such information for legitimate and business related purposes of doing business with the Company.
  The Customer warrants that it has authority to share information it is providing to the Company . The Customer may request to access or correct such information stored by the Company or ask for the destruction of such information (it will be the Customer’s responsibility to advise the Company of any changes to such information, as and when these may occur) and the Company shall take reasonable measures to protect such information (being as stringent as the measures it take to protect its own information), however the Company cannot and do not guarantee the absolute protection and security of such information.
  The Company may disclose or otherwise allow others access to such information pursuant to a legal request, such as a subpoena, legal proceedings, search warrant or court order, or in compliance with applicable laws, if the Company has a good faith belief that the law requires such disclosure, with or without notice to the Customer.
10. Entire Agreement
  1. The Agreement comprises the entire agreement between the Parties with respect to the provision of the Services as from the Start Date and any representation, statement, warranty or other undertaking whether made orally or written elsewhere which is not fully reflected in the Agreement is hereby excluded (including where such representation, statement, warranty or other undertaking was made negligently) is hereby excluded, provided that this Clause 14.9(a) shall not exclude or limit any liability or any right which any Party may have in respect of pre-contractual statements made or given fraudulently.
  2. All conditions, warranties of other terms implied or expressed by statute or common law are hereby excluded to the fullest extent permitted by law.
  3. As from the Start Date, the Agreement supersedes all previous agreements and arrangements between the Parties with respect to the provision of the Services.
11. Relationship of Parties
  Nothing in this Agreement is intended to or shall operate to
  1. create a partnership of any kind between the Customer and the Company;
  2. authorise either Party to act as agent for the other Party except in respect of the Services to be provided by the Company as agent; or
  3. authorise either Party to act in the name or on behalf of, or otherwise bind the other in any way except in respect of the Services to be provided by the Company as agent.
12. Third Party Rights
  1. The members of the Company’s Group and its sub-contractors are hereby entitled to enforce and have the benefit of all the liability provisions, warranties, indemnities, limitations and exclusions of liability contained in this Agreement and which benefit the Company and shall have the right to enforce the provisions of this Agreement in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999. The rights of the Parties to agree to rescind, amend or otherwise vary or to waive the terms of this Agreement or to settle any dispute or other matter arising out of or in connection with this Agreement on such terms as they shall in their absolute discretion think fit shall not be subject to the consent of any member of the Company’s Group or any of its sub-contractors.
  2. Except as stated in Clause 14.11(a), any person who is not a Party to this Agreement may not enforce, or otherwise have the benefit of, any provision of this Agreement.
13. Governing Law and Jurisdiction
  This clause is a separate, divisible agreement from the rest of the Agreement and shall not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Agreement and not to this clause. The Parties intend that this clause remain in effect even if the Agreement expires or terminates for any reason whatsoever.
  1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter, formation or termination shall be construed in accordance with and governed by English Law.
  2. Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter, formation or termination shall be referred to and finally resolved by arbitration administered in accordance with the Rules of Arbitration of the International Chamber of Commerce, the rules of which are deemed to be incorporated by reference into this Clause, by the International Chamber of Commerce.
  3. The number of arbitrators shall be three, who shall be appointed by agreement between the Parties within 2 weeks of a written notice calling for arbitration, failing which each Party will be entitled to appoint one arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as the presiding arbitrator, the seat (or legal place) of arbitration shall be Dubai, United Arab Emirates, and the language to be used in the arbitral proceedings shall be English.
  4. Notwithstanding the above the Company shall be entitled, but not obliged, to take legal action for any overdue amount, (including disputed amounts in terms of Clause 5), due to it in the courts of the country of incorporation of the Company or the courts of any country in which the Customer has assets and/or is resident or in any other court of competent jurisdiction, to which jurisdictions the Customer hereby consents. Such institution of proceedings by the Company in any one or more jurisdictions shall not preclude the institution of proceedings by the Company in any other jurisdiction (whether concurrently or not) to the extent permitted by applicable law in said jurisdictions, to which jurisdiction the Customer hereby consents.
  5. Any legal cost award in favour of the Company shall be allowed on the highest scale (attorney – own client) and shall include collection commission.
  6. The Company shall be entitled to recover legal costs from the Customer at the highest scale (including attorney-and-own-client scale or local equivalent) should it take legal action to enforce any of its rights in terms of this Agreement.
PART 2 – Agency Terms
The following additional provisions shall apply when the Company provides the Services as agent.
APPOINTMENT OF SERVICE PROVIDERS
1. Where the Company provides the Services as agent:
  1. the Customer appoints the Company to make all necessary arrangements for the Services on behalf of the Customer as an agent only and the Company accepts the appointment on the terms set out in Part 2 of these Master T&Cs; and
  2. for the avoidance of doubt, nothing in the Agreement (whether express or implied) shall be construed as the Company acting as a principal when making the necessary arrangements for the Services.
2. The Company shall provide the Customer with a Quotation which shall serve to outline the intent of the Customer for the Company to make the necessary arrangements with third-party providers for the Services that are outlined in the Quotation in accordance with clause 15.1. The Services are thereafter subject to availability, capacity, and final pricing of the third-party service provider. The final availability, capacity, and pricing will be confirmed by the Company in a final confirmation, which shall serve as the final Quotation.
3. The Company shall, as agent for and on behalf of the Customer, select and appoint Service Providers to perform the Services, and the Service Provider shall be solely responsible for the performance of the Services.
4. The Company shall be entitled, acting as agent for and on behalf of the Customer, and the Customer expressly authorises the Company, to enter into all and any contracts on behalf of the Customer as may be necessary to fulfil the Services, whether such contracts are subject to the trading conditions of any Service Provider or otherwise (together, the Contracts for Services). The Company will sign such Contracts for Services for and on behalf of the Customer as agent only.
5. The Customer confirms that the Company is not required to negotiate or secure particular terms of the Contract for Services for the Customer where to do so would result in a change to the Service Provider’s usual terms and conditions for the services to be performed. The Customer further acknowledges and agrees that the Contracts for Services may include exceptions, limitations, exclusions of liability and force majeure provisions excluding liability on the part of the Service Provider and indemnities from the Customer for the benefit of the Service Provider.
6. The Company shall, on request by the Customer, provide evidence of any Contracts for Services made by the Company acting as agent for and on behalf of the Customer.
PRICES
1. Where the Company provides the Services as agent, the Customer acknowledges and agrees that the Prices are inclusive of the charges payable to:
  1. the Service Providers for the performance of the Services; and
  2. the Company for arranging the Services,
  and the fact that the Prices are inclusive of both the charges payable to the Services Providers and the Company shall not constitute evidence that the Company is acting as principal in respect of any of the Services. The Customer agrees that the Company is under no obligation to disclose separately to the Customer the amount of its charges.
NO LIABILITY FOR THE SERVICE PROVIDERS
1. The Company shall have no liability to the Customer for:
  1. any act or omission of the Service Providers; or
  2. the performance by the Service Providers of, or any failure by the Service Providers to perform, any of their obligations under the relevant Contracts for Services,
  and the Customer hereby agrees that upon the occurrence of any one or more of the causes or events listed in Clauses 17.1(a) and 17.1(b) it shall only have recourse against the Service Providers and not the Company.
PART 3 – Principal Terms
The following additional provisions shall apply when the Company provides the Services as principal.
LIBERTIES
1. The Company may comply with the orders or recommendations of any government or relevant authority, or any person or body purporting to act as or on behalf of such government or authority, or any person or body with the right to give orders or recommendations.
SUB-CONTRACTING
1. The Company may sub-contract all or any of its obligations under the Agreement on any terms whatsoever to any sub-contractor approved by the Company, provided that the Company shall not thereby be relieved of any of its obligations under this Agreement.
2. The Customer undertakes that no claim shall be made against any sub-contractor which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Services and/or the Products, and if any such claim should nevertheless be made, to indemnify the Company against all consequences thereof including any costs incurred therefrom.
3. Without prejudice to the foregoing, all such sub-contractors together with all their respective subcontractors, employees, directors, officers and agents shall have the benefit of all provisions herein, as if such provisions were expressly for their benefit. In entering into this Agreement, the Company does so (to the extent of such provisions) not only on its own behalf, but also as agent and trustee for such sub-contractors.
4. Where the Company sub-contracts the performance of the Services or any part thereof and it can be proved that the loss of or damage to or in respect of the Products arose or was caused whilst the Products were in the care or custody of the sub-contractor, the Company shall have the full benefit of all rights, limitations and exclusions of liability available to such sub-contractor in the contract between the Company and such sub-contractor and in any law, statute or regulation applicable to such sub- contractor and the liability of the Company shall, notwithstanding the terms of the applicable Service T&Cs, not exceed the amount recovered, if any, by the Company from such subcontractor.

Warehousing Services – Terms and Conditions

DEFINITIONS & INTERPRETATION
1. The terms defined in the Quotation and Master T&Cs shall have the same meanings where used in these Warehousing T&Cs.
2. In addition, in these Warehousing T&Cs, the following words shall have the following meanings:
  Blended Products means the Products after the provision of blending services by the Company;
  Specification means the specification for blending; and
  Storage Facility means the storage facility, as stated in the Quotation and/or as nominated by the Company;
  Tolerance means the allowed weight variance, which shall be as stated in the Quotation, failing which, 0.2% for cathodes and 10% for concentrates
  Warehousing Services means the warehousing services in respect of the Products to be provided by the Company pursuant to the Agreement;
  Weighing means the weighing of the Product by the Company using the method stipulated in the Quotation, failing which, by the following method: Weighbridge and / or scale, expressed in gross Metric Ton in the event of packaged Product or net metric tons in the event of bulk Product.
3. Unless the context otherwise requires, a reference to a Clause in these Warehousing T&Cs is to a clause of these Warehousing T&Cs.
RECEIPT AND WEIGHING OF PRODUCTS
1. On receipt of any Products, the Company will so far as reasonably practicable carry out an external check of the condition of the Products. The delivery notes shall be endorsed with details of any apparent problems, notwithstanding which the Company has no obligation to examine the content of the Product (whether packaged or non-packaged) and shall not be liable for any foreign matter inside the Product and/or for any adverse effect which such foreign matter may have on the quality or weight of the Product.
2. Where the Company has agreed to weigh the Products, it will weigh the Products using the Weighing method, at the cost of the Customer. The quantity of Products ascertained using the Weighing method shall be final and binding, save in the case of manifest error or fraud.
LIABILITY FOR LOSS OR DAMAGE TO PRODUCTS
1. Subject to the remainder of this Clause 3, the Company shall be liable only for loss, destruction, contamination of or damage to the Products which occurs during the provision of the Warehousing Services where such loss, destruction, contamination or damage results directly from the Company’s proven negligence or wilful default up to a maximum amount of:
  1. the value of any Products lost, destroyed, contaminated or damaged (as determined in accordance with Clause 3.2 below); or
  2. USD 2 per kilo of gross weight of any Products lost, destroyed, contaminated or damaged subject to a limit of USD 200,000 per event or series of associated events,
  whichever is the lesser.
2. For the purposes of assessing the Company’s liability under this Clause 3.1, the value of the Products will be:
  1. in the case of Products that are lost or destroyed, the lesser of the market value at the date of loss or destruction and the value declared for the purposes of customs and / or insurance purposes; or
  2. in the case of damaged or contaminated Products, the reduction in value calculated on the basis set out in Clause 3.2(a).
3. Tolerance
  The Company will not be liable under Clause 3.1 unless the weight variance exceeds the Tolerance.
4. Without prejudice to Clause 3.1, the Company will not be liable for:
  1. loss of or damage to any Products due to faulty or inadequate packaging and/or marking, except where the Company provided the packaging in which case the Company may be liable subject to and in accordance with Clause 3.1;
  2. Products lost or damaged, unless such Products were in good and sellable condition when delivered to the Company;
  3. any shortage of Products, which the Company has not agreed to weigh;
  4. the contents of any sealed carton or container which bears no evidence of having been opened;
  5. Products found to be missing on dismantling of any pallet load;
  6. Any tax, duties or penalties that become payable to revenue authorities as a result of theft of Product or Product otherwise removed from bond storage;
  7. any claim relating to title, validity, genuineness, quality, type or grade of Product;
  8. any claims relating to delays;
  9. any claim resulting from the bankruptcy, liquidation, winding up or similar act of or by any warehouse operator and/or owner or agent of the Company; or
  10. any claim resulting from the Company acting on the instruction -or what it reasonably believed to be the instruction - of the Customer.
5. Save as set out in this Clause 3, the Company shall not be liable for any loss, destruction, contamination of or damage to the Products howsoever arising (whether caused by negligence, wilful default or otherwise). Having regard to the nature of the Warehousing Services and the availability to the Parties of suitable insurance, the Parties agree that the risks respectively borne by them in relation to loss, damage to or destruction of the Products are reasonable.
BLENDING
1. Where the Company provides blending as part of the Warehousing Services, the following provisions shall apply:
  1. the Customer shall provide the relevant Specification to the Company prior to the Company’s receipt of the relevant Products to be blended;
  2. the Customer may reject any Blended Products delivered to it that do not comply with the Specification in any material respect (Defective Products), provided that:
    1. written notice of rejection is given to the Company within 7 days of delivery of the Defective Products by the Company or collection of the Defective Products by or on behalf of the Customer (as the case may be); and
    2. none of the events listed in Clause 4.1(d) apply
  3. if the Customer fails to give notice of rejection in accordance with Clause 4.1(b), it shall be deemed to have accepted the Blended Products;
  4. the Company shall not be liable for any Defective Products in any of the following events:
    1. the Customer makes any further use of the Defective Products after giving notice in accordance with Clause 4.1(b);
    2. the non-compliance with the Specification arises because the Customer failed to follow the instructions for the storage and handling of the Products;
    3. the non-compliance with the Specification arises as a result of the Company following instructions given by or on behalf of the Customer;
    4. the Customer alters or repairs the Defective Products in any way;
    5. the non-compliance arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions which occurs after such Defective Products leave the Storage Facility; or
    6. the Defective Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  5. if the Customer rejects Defective Products under Clause 4.1(b), the Company shall in its sole discretion:
    1. take corrective action to rectify such non-compliance; or
    2. pay to the Customer an amount equal to the reduction in value of the Defective Products calculated on the basis of the market value of the Product prior to blending less the value of the Defective Product following blending,
    provided always that the Company’s maximum liability under this Clause 4.1(e), including the costs of taking corrective action, shall in no circumstances exceed the maximum aggregate liability limit set out in Clause 7.3(b) of the Master T&Cs; and
  6. once the Company has complied with the provisions of Clause 4.1(e), it shall have no further liability to the Customer for the rejected Blended Products' failure to comply in all material respects with the Specification. Save as set out in this Clause 4, the Company shall have no liability for any failure of the Blended Products to comply with the Specification howsoever arising (whether caused by negligence or otherwise).
PROPERTY RIGHTS
The performance of the Warehousing Services in accordance with the Agreement shall not create and shall not be deemed to create any form of demise, leasehold interest, tenancy, licence or any other form of proprietary interest in the Storage Facility or any property or land surrounding the Storage Facility in favour of the Customer.
CONSEQUENCES OF TERMINATION
Upon termination of the Agreement for whatever reason, the Customer shall arrange for all Products and/or Blended Products at the Storage Facility to be removed from the Storage Facility as soon as possible (but in any event no later than the date of termination of the Agreement), provided that the Company may, in its sole discretion, retain some or all of the Products and/or Blended Products until all invoices issued in connection with the Agreement have been paid in full. Upon termination, the Company shall have no longer have any risk or liability for the Product or the Blended Products.
LIBERTY
The Company reserves the right to move the Products from the Storage Facility to alternative storage.

Collateral Management – Terms and Conditions

DEFINITIONS & INTERPRETATION
1. The terms defined in the Quotation and Master T&Cs shall have the same meanings where used in these Collateral Management T&Cs.
2. In addition, in these Collateral Management T&Cs, the following words shall have the following meanings:
  Bank has the meaning given to it in the relevant Holding Certificate;
  Depositor has the meaning given to it in the relevant Holding Certificate; and
  Holding Certificate means a certificate issued by the Company in respect of the Products stored at the Storage Facility, which shall be in the form attached hereto or any other form as may be agreed between the Parties, by any name, including but not limited to warehouse receipt and warehouse undertaking;
  Storage Facility means the storage facility, as stated in the Quotation and/or as nominated by the Company;
  Weighing means the weighing of the Product by the Company using the method stipulated in the Quotation, failing which by the following method: Weighbridge and / or scale, expressed in gross Metric Ton in the event of packaged Product or net metric tons in the event of bulk Product.
3. Any reference to the Customer in the Agreement, including these Collateral Management T&Cs shall be deemed to include a reference to the Requestor and/or Depositor or the Bank (as appropriate).
4. Unless the context otherwise requires, a reference to a Clause in these Collateral Management T&Cs is to a clause of these Collateral Management T&Cs.
APPLICABILITY
All Collateral Management provided by the Company is subject to these Collateral Management T&Cs and shall at all times be an ancillary service to Warehousing Services – unless specifically agreed otherwise in writing.
ISSUING OF HOLDING CERTIFICATES BY THE COMPANY
1. The Customer hereby appoints the Company to issue Holding Certificates confirming that the Products are stored at the Storage Facility and held to the order of the Depositor or the Bank (as appropriate).
2. The Company shall issue each Holding Certificate upon receiving written instructions of the Customer, and only once the Products have been received by the Company and held at the Storage Facility.
3. Once a Holding Certificate has been issued by the Company, the Customer acknowledges and agrees that the Company shall only finally release or dispose of the Products with the written authority of the Depositor or the Bank (as appropriate).
4. Without derogating from the provisions set out above, for clarity sake, the Company will under no circumstances be liable should it in its absolute discretion elect to move or load the Products stored at the Storage Facility prior to final release or disposal of the Products at the written authority of the Depositor or the Bank (as appropriate).
5. The Holding Certificate and the storage of the Products at the Storage Facility for the account of the Depositor or the Bank (as appropriate) shall in no circumstances be construed as a promise, representation, warranty or other assurance to any person as to the contents, condition, quantity, weight and quality of the Products or the Depositor’s title to or ownership of the Products or the validity of the Bank’s security interest over the Products.
INDEMNITY IN RESPECT OF HOLDING CERTIFICATES ISSUED
In consideration of the Company agreeing to act in accordance with the written instructions of the Depositor or the Bank (as appropriate), the Customer shall promptly indemnify the Company against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgements of whatsoever nature howsoever assumed, incurred or suffered by the Company, its sub-contractors or any member of the Company Group, their respective employees, servants, agents, insurers or reinsurers as a result of or in connection with such instructions.
Should the company be found to have liability in terms of its Collateral Management Services, such liability shall be limited to a maximum amount of USD 1000.00 (one thousand US Dollars) per Holding Certificate.
The Company accepts no liability for any Holding Certificate not issued by its duly authorised representative and shall have no liability or responsibility for any consequences arising out of any unauthorized, irregular or fraudulent use of its Holding Certificate. The Customer and/or party in whose favour any Holding Certificate may be issued shall bear the onus to verify the validity of such Holding Certificate.
Without prejudice to the above, the Company will not be liable hereunder for:
1. Any claim relating to warehousing services – which would then be dealt with under the Warehousing T&Cs;
2. any shortage of Products, which the Company has not agreed to weigh;
3. the contents of any sealed carton or container which bears no evidence of having been opened;
4. Products found to be missing on dismantling of any pallet load;
5. any claim relating to title, validity, genuineness, quality, type or grade of Product;
6. any claims relating to delays;
7. any claim resulting from the bankruptcy, liquidation, winding up or similar act of or by any warehouse operator and/or owner or agent of the Company; or
8. any claim resulting from the Company acting on the instruction -or what it reasonably believed to be the instruction - of the Customer.

Holding Certificate

HOLDING CERTIFICATE - REF NO. XXXXX DATE OF ISSUANCE: XXXXX. Click Here

This holding certificate ("Holding Certificate") is issued by_________________________(the "Deposit Keeper"), at the request of_________________________for the account of_________________________(the "Depositor"), subject to the terms and conditions of the Deposit Keeper, a copy of which can be provided upon request (the "Contract").
The Deposit Keeper has received the following described goods (the "Goods") from_________________________for storage at_________________________(the "Storage Facility"):
Description of the Goods: said to be XXXXXX gross metric tons/ XXXXXX bags / bundles of_________________________
The Deposit Keeper shall hold the Goods at the Storage Facility and shall keep them safe and secure, segregated from all other items and marked by reference to this Holding Certificate.
The Deposit Keeper shall grant the Depositor and/or any inspector nominated by the Depositor access to the Storage Facility at all reasonable times and on reasonable notice to inspect the Goods and to take samples thereof.
The Deposit Keeper shall not move, release for production or make any disposition of any of the Goods without the written authority of the Depositor.
The Deposit Keeper shall not sell the Goods, nor create any mortgage, lien pledge or encumbrance whatsoever over the Goods, without the written authority of the Depositor, save that the Deposit Keeper may exercise a lien over the Goods, or a part thereof, and sell any Goods subject to said lien as permitted by the terms of the Contract.
The Deposit Keeper shall obtain all permits, licenses and consents with respect to the operation and use of the Storage Facility and shall take all measures to maintain such permits, licenses and consents in full force and effect.
This Holding Certificate replaces all prior holding certificates issued by the Deposit Keeper in respect of the Goods, or any portion thereof. All prior holding certificates are therefore rendered null and void and the Deposit Keeper shall have no liability thereunder.
This Holding Certificate and the storage of the Goods in the Storage Facility for the account of the Depositor shall in no circumstances be construed as a promise, representation, warranty or other assurance to any person as to the contents, condition and quality of the Goods or the Depositor's title or ownership in the Goods.
The contract contained in or evidenced by this Holding Certificate, as well as any dispute or claim arising under or in connection with this Holding Certificate (including any non-contractual disputes or claims), shall be governed by and construed in accordance with English law.
Any disputes arising under or in connection with this Holding Certificate shall be finally resolved by arbitration subject to the arbitration clause contained in the Deposit Keeper’s standard trading terms and conditions.
The Depositor shall be deemed to have accepted the terms of this Holding Certificate, including the arbitration agreement set out above, through its continued storage of the Goods at the Storage Facility pursuant to the terms of this Holding Certificate.
The Deposit Keeper holds the original of this Holding Certificate at the Depositor's exclusive disposal until the Goods are fully released in accordance with paragraph 5 above and undertakes to remit the Holding Certificate to the Depositor upon its first request. The Deposit keeper accepts no liability for any Holding Certificate not issued by its duly authorised representative and shall have no liability or responsibility for any consequences arising out of any unauthorized, irregular or fraudulent use of its Holding Certificate.

Customs Services – Terms and Conditions

DEFINITIONS & INTERPRETATION
1. The terms defined in the Quotation and Master T&Cs shall have the same meanings where used in these Customs T&Cs.
2. In addition, in these terms and conditions, the following words shall have the following meanings:
  Certificates means any certificate of destination or FERI certificates or any local equivalent required for Customs Clearance;
  Customs Authority means an authority or government agency that is responsible for the administration and application of the laws relating to the importation, exportation, movement or storage of products and the collection of duties and taxes;
  Customs Clearance means the completion of customs formalities by the Company in relation to the importation, exportation, movement and/or storage of the Products;
  Customs Services means the customs services in respect of the Products, including Customs Clearance, facilitating applications for Certificates and use of the Company’s customs bond facility for the storage and/or movement of Products as further detailed in the Quotation;
  Direct Representative means the Company acting in the name of and on behalf of the Customer in dealings with the Customs Authority (including any local terminology for the foregoing);
  Shipment means a consignment of Products sent at one time by or for the Customer from one address to another address, provided always that in respect of Products carried by rail, and for the purposes of these Customs T&Cs only, Products carried in one wagon shall be deemed to be one consignment of Products; and
3. Unless the context otherwise requires, a reference to a Clause in these Customs T&Cs is to a clause of these Customs T&Cs.
APPLICABILITY
All Customs Services provided by the Company are subject to these Customs T&Cs.
OBLIGATIONS OF THE CUSTOMER
1. The Customer shall promptly provide the Company with, or procure the provision to the Company of, any and all information and documentation required in respect of the Products and the transaction (including information as to the Products’ physical characteristics), the valuation of the Products and any other information specific to the Products in order for the Company to:
  1. make a complete, accurate and timely Customs Clearance declaration for any and all of the Products; and
  2. undertake the Customs Services in full conformity with Applicable Law and the terms of the Agreement.
2. If required by the Customer, the Company shall provide reasonable assistance in clarifying the steps to be undertaken by the Customer pursuant to Clause 3.1. The Customer acknowledges and agrees that the Company will rely on the information, documentation and data it provides to the Company pursuant to Clause 3.1.
3. The Customer represents and warrants that all information, documentation and data provided by the Customer pursuant to Clause 3.1 shall be accurate and complete.
4. The Customer retains sole liability, and will reimburse the Company on demand, should the Company have made any such payment, for all customs duty, import VAT, anti-dumping duty, countervailing duty or other import taxes, duties, deposits, fines and levies as may apply to the Products and the Customs Services (whether actual or potential).
OBLIGATIONS OF THE COMPANY
1. The Company shall, subject to Clause 3.1, make due reference to the information provided on the Products when making Customs Clearances.
2. The Company shall seek clarification from the Customer where any information pertaining to any Customs Clearance is unclear or incomplete, and the Company shall only submit a Customs Clearance when it is satisfied it has sufficient information to do so correctly and accurately, unless instructed differently by the Customer.
3. Where applicable, the Company shall adhere to the general guidance (if any) provided by the Customer in respect of the specific customs regimes, procedures and processes applicable to the Products.
4. Save where Clause 4.5 applies, in all and any dealings with a Customs Authority for and on behalf of the Customer, the Company is deemed to be appointed, and acts as, Direct Representative. Acting as a Direct Representative means that the Company has no liability for any customs debt incurred on Customs Clearances made by the Company on behalf of the Customer. On request from the Company, the Customer shall provide a letter of authority confirming the Company’s empowerment to act as Direct Representative.
5. Where Applicable Law requires that the Company act as an Indirect Representative in respect of any of the Customs Services, the Company is deemed to be appointed, and acts as, Indirect Representative. Acting as an Indirect Representative means that the Company may have liability for the customs debt incurred in respect of such Customs Services. On request from the Company, the Customer shall provide a letter of authority confirming the Company’s empowerment to act as Indirect Representative. In consideration of the Company agreeing to act as Indirect Representative in respect of such Customs Services, the Customer shall promptly indemnify the Company against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, customs duty, import VAT, anti-dumping duty, countervailing duty or other import taxes, duties, deposits, fines and levies, orders, awards, fines, proceedings and judgements of whatsoever nature howsoever assumed, incurred or suffered by the Company, its sub-contractors or any member of the Company Group, their respective employees, servants, agents, insurers or reinsurers as a result of or in connection with the Company acting as Indirect Representative.
COMMUNICATION WITH CUSTOMS AUTHORITY
1. Subject to Applicable Law, either Party will notify the other Party immediately upon receipt of any of the following types of communication or request from a Customs Authority in respect of the Customs Services, the Products, the Customer’s business or a specific transaction relating to the Customer, which are to be regarded by the Parties as outside the normal course of business, including investigations and audits, notice of violations, requests for visits or interviews, seizures of Products, voluntary disclosures, surveys or questionnaires (the "Specified Circumstances").
2. The notification referred to in Clause 5 shall be subject to the advice either Party may receive from its legal advisers. At no time shall either Party perform any deed or action, which contravenes any Applicable Law, which may include supranational or international conventions, and each Party may consult with its legal advisers in any of the Specified Circumstances.
3. At no time shall either Party hinder or delay any lawful access, request, inspection or the serving of documents, warrants, affidavits or subpoenas in any of the Specified Circumstances.
LIABILITY
1. The Company shall not be liable for any matter that arises under or in connection with the performance of the Customs Services unless such matter arises as a direct result of the Company's proven negligence or wilful misconduct.
2. Without prejudice to the generality of Clause 6.1:
  1. if the Company’s performance of any of its obligations under the Agreement is prevented, delayed or affected by any act or omission by the Customer, a failure by the Customer to perform any relevant obligation or any of the information provided under Clause 3.1 not being accurate and/or complete (Customer Default):
    1. the Company shall not be liable for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default; and
    2. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
  2. the Company will not be liable for:
    1. any claims unless they are notified in writing to the Company within 7 calendar days of the event giving rise to the claim, except where the Customer can show that it was impossible to comply with this time limit and that the claim was made as soon as reasonably possible for the Customer to do so;
    2. Products retained or confiscated for any reason whatsoever at any customs point, or damaged thereat.
    3. any claim relating to title, validity, genuineness, quality, type or grade of Product;
    4. any claims relating to delays;
    5. any claim resulting from the Company acting on the instruction -or what it reasonably believed to be the instruction - of the Customer.
3. The maximum liability of the Company under this Clause 6 howsoever arising (whether caused by negligence, wilful default or otherwise) shall, in respect of each Transaction, not exceed a sum equal to the Prices paid in respect of such Transaction, subject always to a maximum aggregate liability of USD 10,000 in any 12 months period.

Transport Services – Terms and Conditions

DEFINITIONS & INTERPRETATION
1. The terms defined in the Quotation and Master T&Cs shall have the same meanings where used in these Transport T&Cs.
2. In addition, in these Transport T&Cs, the following words shall have the following meanings:
  Shipment means a consignment of Products sent at one time by or for the Customer from one address to another address; and
  Transport Services means the carriage of Products to be provided by the Company pursuant to the Agreement by land, sea (Ocean Freight) or air;
  Tolerance means the allowed weight variance, which shall be as stated in the Quotation, failing which, 0.2% for cathodes and 10% for concentrates;
  “Transport Unit” means any packing case, pallets, container, trailer, tanker, or any other device used whatsoever for and in connection with the carriage of Products by land, sea or air.
  Weighing means the weighing of the Product by the Company using the method stipulated in the Quotation, failing which by the following method: Weighbridge and / or scale, expressed in gross Metric Ton in the event of packaged Product or net metric tons in the event of bulk Product.
3. Unless the context otherwise requires, a reference to a Clause in these Transport T&Cs is to a clause of these Transport T&Cs.
APPLICABILITY
All Transport Services provided by the Company subject to these Transport T&Cs and the Company deals with Product only on the basis that the Company is neither a common carrier nor a public carrier.
RIGHTS OF THE COMPANY
1. The Company shall have absolute discretion and liberty as to the means, route, mode and procedure to be followed in the performance of any of the Transport Services. The Products may be carried by any route whatsoever, whether or not the most direct, scheduled, advertised or customary route, and by any mode of transport. The Company shall be entitled to substitute any other means of transport at any time.
2. If at any time, in the opinion of the Company or any other person in whose custody the Products are in at the relevant time, the performance of the Transport Services is, or is likely to be, affected by an hindrance, risk, delay, difficulty or disadvantage whatsoever, and which cannot be avoided by the Company using reasonable endeavours, the Company may, without notice to the Customer, treat the performance of its obligations as terminated and place the Products or any part of them at the Customer’s disposal at any place which the Company may deem safe and convenient, whereupon the responsibility of the Company in respect of the Products shall cease. The Customer shall be responsible for any additional costs of carriage to, and delivery and storage at, such place and all other expenses incurred by the Company.
3. The Company shall be entitled to charge D&D Charges:
  1. for any delay in excess of prescribed allowed time / days (if any), failing which, from the date that it places the Customer on notice that D&D charges shall forthwith apply;
  2. at the rate as set out in the Quotation or as otherwise agreed in writing failing which at USD 350 per day (per vehicle, for Road Transport, if applicable) and as per the shipping line prescribed charge for ocean freight.
4. The Company shall be entitled to issue in respect of the whole or part of any movement of Product , a FIATA combined transport bill of lading ("FBL") provided that where a FBL is issued these trading terms and conditions shall continue to apply except insofar as they conflict with the terms and conditions applicable to the FBL. The issue of the FBL by the Company shall entitle it to raise an additional charge determined by the Company, to cover its additional obligations arising under the FBL.
ESCORT
The purpose of security escort services is to reduce the risk of loss or damage by theft or burglary – however the Company gives no warranty or guarantee that security escort services will reduce or prevent loss and/or damage and will incur no liability for same, howsoever caused.
Where the Company has agreed to provide security escort services, in its sole discretion, the Company shall be entitled to provide security escort services itself, through a Company Group affiliate or the Company shall procure the provision of escort services from Service Providers in accordance with the Customer’s instructions and the provisions of Part 2 of the Master T&Cs in which instance the Customer shall incur D&D Charges for any delays resulting from escort services.
LIABILITY FOR LOSS OR DAMAGE TO PRODUCTS
1. Subject to the remainder of this Clause 6, the Company shall only be liable for loss, destruction, misdelivery, contamination of or damage to the Products which occurs during the provision of the Transport Services which results directly from the Company’s proven negligence or wilful default up to a maximum amount of:
  1. the value of any Products lost, destroyed, mis-delivered, contaminated or damaged (as determined in accordance with Clause 5.2 below); or
  2. a sum at the rate of USD 2 per kilo of gross weight of any Products lost, destroyed, misdelivered, contaminated or damaged, subject to a limit of USD 200,000 per Shipment,
  whichever is the lesser.
2. For the purposes of assessing the Company’s liability under Clause 5.1, the value of the Products will be:
  1. in the case of Products that are lost, destroyed or mis-delivered, the lesser of the market value at the date of loss, destruction or mis-delivery and the value declared for the purposes of customs and / or insurance purposes; or
  2. in the case of damaged or contaminated Products, the reduction in value calculated on the basis set out in Clause 5.2(a).
3. Tolerance
  The Company will not be liable under Clause 5.1 unless the weight variance exceeds the Tolerance.
4. Without prejudice to Clause 5.1, the Company will not be liable for:
  1. loss of or damage to any Products due to faulty or inadequate packaging and/or marking, except where the Company provided the packaging in which case the Company may be liable subject to and in accordance with Clause 5.1;
  2. Products retained or confiscated for any reason whatsoever at any customs point, or damaged thereat;
  3. any shortage of Products, which the Company has not agreed to weigh;
  4. Products lost or damaged, unless such Products were in good and sellable condition when delivered to the Company;
  5. the contents of any sealed carton or container which bears no evidence of having been opened;
  6. Products found to be missing on dismantling of any pallet load;
  7. any claim relating to title, validity, genuineness, quality, type or grade of Product;
  8. any claims relating to delays;
  9. any claims relating security escorts;
  10. any claim resulting from the bankruptcy, liquidation, winding up or similar act of or by any warehouse operator and/or owner or transporter or agent of the Company appointed; or
  11. any claim resulting from the Company acting on the instruction -or what it reasonably believed to be the instruction - of the Customer; or
  12. any tax, duties or penalties that become payable to revenue authorities as a result of theft of Product or Product otherwise deemed removed from bond.
DELAY
1. Unless otherwise agreed in writing, the Company does not undertake that the Products or any documents shall depart, arrive, or be available on particular dates or take a particular route and all dates provided by the Company shall be estimates only.
2. If, notwithstanding Clause 6.1, the Company is nevertheless found liable for delay, its liability shall in no circumstances exceed the amount of the Prices paid in respect of the relevant Transport Services.
NOTICE OF CLAIM
The Company shall be deemed prima facie to have delivered the Products undamaged and in full unless notice of loss or damage to the Products and the general nature of it is given in writing to the Company or its agent at the place and time of delivery, or if the loss or damage is not apparent, within three consecutive days thereafter.
ENTIRE LIABILITY
Save as set out in these Transport T&Cs, the Company shall not be liable for any loss, destruction, contamination, mis-delivery of or damage to the Products howsoever arising (whether caused by negligence, wilful default or otherwise). Having regard to the nature of the Transport Services and the availability to the Parties of suitable insurance, the Parties agree that the risks respectively borne by them in relation to loss, damage to or destruction of the Products are reasonable.
PROOF OF DELIVERY
The Company shall be entitled to receive payment upon providing scanned copies of documents evidencing delivery and the Customer shall not be entitled to withhold payment in absence of original proof of delivery documents. The Company will not be held liable for, and the Customer shall not withhold payment as a result of, loss or damage of any part of proof of delivery documentation during transit, provided delivery is evidenced by the balance of documents and/or any other means.