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STANDARD TRADING CONDITIONS (2009 EDITION)
"Company"
means ˇ§MOL Logistics (H.K.) Ltd.ˇ¨ a member of the
Hongkong Association of Freight Forwarding
and Logistics Limited trading under these Conditions. "Conditions"
means the entire undertakings, terms and conditions embodied
herein. "Customer"
means any person at whose request or on whose behalf Company
provides a Service. "Customer's
Equipment"
means Transport Units, equipment and vehicles other than
those provided by or for Company. "Dangerous goods"
includes any goods, substances, materials or articles:
(a)
which are
or may become dangerous, explosive, noxious, hazardous, inflammable,
combustible, radioactive, toxic, infectious, poisonous, corrosive
or oxidizing; or which are or may become liable to damage any
property whatsoever or injure any person whomsoever; or which
harbour or encourage or are likely to
harbour or encourage vermin or other
pests; or which are improperly or dangerously packed; or which
for any reason whatsoever are liable to be seized, forfeited or
detained or cause any other property or person liable to be seized,
forfeited, detained or arrested by any lawful authority; (b) which are classified as dangerous
goods in any applicable national laws or international conventions
or regulations from time to time in force, including, without
limitation, the International Maritime Dangerous Goods Code published
by the International Maritime Organization, the Technical Instructions
for the Safe Transport of Dangerous Goods by Air approved and
published by decision of the Council of the International Civil
Aviation Organization, the IATA Dangerous Goods Regulations, the
Dangerous Goods Ordinance (Cap. 295, Laws of Hong Kong), the Dangerous
Goods (Application and Exemption) Regulations (Cap 295 sub. leg.
A, Laws of Hong Kong), Schedule 16 to the Air Navigation (
(c)
the properties
of which are or may become dangerous when the Services contracted
for are rendered to them, and include empty receptacles or other
Transport Units which have been used for or in connection with
the storage or holding or carriage of any dangerous goods, unless
the same shall have been properly cleaned and dried, gas freed
or ventilated, or cleaned and adequately closed, or otherwise
treated so as to be rendered safe and non-dangerous. "Goods"
means all or any part of the goods (including, except where
the term is used in Clause 20.4(a), any Customerˇ¦s Equipment)
in respect of which any Service is or is to be provided by Company.
"Guadalajara
Convention"
means the Convention supplementary to the Warsaw Convention,
for the unification of certain rules relating to international
carriage by air performed by a person other than the contracting
carrier signed at "Hague-Visby
Rules"
means the International Convention for the Unification
of certain rules Relating to Bills of Lading signed at Brussels
on 25 August 1924 ("Hague Rules") as amended by the
Protocol signed at Brussels on 23 February 1968 (and, where applicable,
the Protocol signed at Brussels on 21 December 1979). "instructions"
means statements of Customer's specific requirements, whether
oral or in writing. "Liabilities"
includes all and any claims, demands, losses, damages,
liabilities, responsibilities, fines, penalties, costs and expenses
(including legal costs and expenses) of whatsoever nature and
howsoever arising. "Montreal
Convention"
means the Convention for the Unification of Certain Rules
for International Carriage by Air done at "Owner"
includes all and any of the following persons: the owner,
shipper, consignee of the Goods and any other person who is or
may become interested in or otherwise entitled to the possession
of the Goods, and anyone acting on behalf of any of the persons
aforesaid. "Perishable
goods"
means any goods of a perishable nature and includes goods
which require temperature control or goods with a short shelf-life.
"Rights
and Defences"
includes all and any rights, remedies, defences,
exemptions of liabilities, limitations of liabilities, liberties,
immunities and benefits of whatever nature and howsoever acquired.
"Separate Terms"
has the meaning ascribed to it in Clause 2.3. "Services"
means all and any business undertaken by Company including
the provision or procuring the provision of any advice, information
and services whatsoever (including without limitation any advice,
information or services of or relating to any of the following:
forwarding, carriage, transportation of goods (in each case whether
international, regional, cross border or local and whether by
sea or air or land or any combination thereof); storage, loading,
unloading, packing, unpacking, stuffing, un-stuffing, consolidation,
de-consolidation, warehousing, distribution, collection, delivery,
inventory and management control, labelling, repacking, reorganisation,
other processing, tracing and tracking and other handling of goods;
order handling, documents preparation and customs brokerage; and
in each case services ancillary or incidental thereto). "sub-contractors"
means direct and indirect sub-contractors (of any degree)
and their respective officers, servants and agents. "Transport
Unit"
includes any container, trailer, flat, tank, packing case,
pallet and any other device used for and in connection with the
carriage and/or consolidation of goods, and any equipment ancillary
thereto. "Valuable
goods"
means any goods of a valuable nature including without
limitation: bullion, bank notes, cash money, coins, travellerˇ¦s
cheques, drafts, credit cards, documents or papers of value
of all kinds, articles or materials containing information or
data of value in any form, precious stones, jewellery,
antiques, works of art, valuables of all kinds; and including
such other goods or materials the value of which exceeds the value
limit as may from time to time be specified by Company. "Warsaw Convention"
means The Convention for the Unification of Certain Rules
relating to International Carriage by Air signed at 1.2 Interpretation.
In these Conditions, unless the context otherwise requires: words
importing the singular include the plural and vice versa; words
importing a gender include every gender; references to persons
include any individual, body corporate or unincorporated and any
other entity; references to "third party(ies)" also include a party or parties which is or are
the parent, subsidiary or associated company(ies)
of Company; references to statutory provisions shall be construed
as references to those provisions as respectively amended or re-enacted
or as their application is modified by other provisions from time
to time and shall include any provisions of which they are re-enactments
(whether with or without modification); references to Clauses
are to clauses of these Conditions. Clause headings and sub-headings
are for convenience only and do not affect the construction of
these Conditions. 1.3 No Variation. No servant
or agent of Company has authority to waive or vary any provision
of these Conditions, unless such waiver or variation is in writing
and signed by a duly authorized person or director of Company.
1.4 Severability. Each of
the provisions of these Conditions is severable and distinct from
the others and if at any time one or more of such provisions is
or becomes invalid illegal or unenforceable, the validity legality
and enforceability of the remaining provisions of these Conditions
shall not in any way be affected or impaired thereby. 1.5 Rights Cumulative. Any
of the Rights and Defences conferred
on Company by these Conditions shall be in addition to and without
prejudice to all other Rights and Defences
available to it (whether contained in these Conditions or under
statue or otherwise available in law). 1.6 No Waiver. No omission or delay
on the part of Company in exercising any of its Rights and Defences shall operate as a waiver thereof, nor shall any
single or partial exercise by Company of any such Rights and Defences preclude the further or other exercises thereof or
the exercise of any other Rights and Defences
which it has or may have. 1.7 Notices to Company. All
notices required to be given to Company under these Conditions
shall be in writing delivered to or sent by mail (postage prepaid)
to Company's registered office for the time being in Hong Kong
or in such other manner or to such other address as Company may
notify Customer in writing. 1.8 Notices by Company. Wherever
it is provided in these Conditions that notice shall be given
by Company to Customer or any other person such notice shall be
dispensed with if despite reasonable efforts, Customer or such
other person cannot reasonably be contacted. 1.9 Action in contract, tort,
etc. The Rights and Defences of
Company provided in these Conditions shall apply in any action
against Company whether founded in contract, tort, bailment, trust
or howsoever otherwise founded. 1.10 Customer's/Owner's Indemnity.
Any agreement or undertaking by Customer or Owner contained or
implied in these Conditions to indemnify Company shall be construed
as an agreement or undertaking to indemnify Company, its officers,
servants, agents and sub-contractors (and each of them). 1.11 Customer's Declarations etc.
Nothing in these Conditions shall be construed to affect or prejudice
the Rights and Defences of Company,
its officers, servants, agents or sub-contractors in or under
any separate declarations, certifications, warranties, undertakings
and/or indemnities provided or given by or on behalf of Customer
and/or Owner. 1.12 Protective Provisions.
Subject to Clause 2.2, provisions in these Conditions which: (a) exempt, exclude, relieve or limit
the liability of Company, its officers, servants, agents or sub-contractors
(including without limitation provisions which limit the time
for giving notice of claim or commencing proceedings); or (b) require Customer and/or Owner to indemnify
Company its officers, servants, agents or sub-contractors shall apply and take
effect notwithstanding (i) any act,
omission, negligence, neglect or default of Company, its officers,
servants, agents, sub-contractors or any person for whom Company
is responsible, or (ii) the circumstances or cause of any loss
or damage (to which such exemption, exclusion, relief, limitation
or indemnity relates) be unexplained, or (iii) any other matters
or causes whatsoever. 2.
APPLICATION OF CONDITIONS 2.1 Subject to Clauses
2.2 and 2.3 all and any Services, whether gratuitous or otherwise,
are provided subject to these Conditions which are deemed to be
incorporated in any agreement between Company and Customer, to
the exclusion of all other terms and conditions furnished by Customer
or Owner or any other persons on their behalf. 2.2 If any legislation
is compulsorily applicable to any Service, these Conditions shall
as regards such Service be read as subject to such legislation
and nothing in these Conditions shall be construed as a surrender
by Company of any of its Rights and Defences
or as an increase of any of its liabilities under such legislation
and if any part of these Conditions be repugnant to such legislation
to any extent such part shall as regards such Service be void
to that extent but no further. 2.3 Where Company (in
its own name) issues its own bill of lading or waybill (air or
sea or road) or cargo receipt in pursuance of the Montreal Convention
and provides in it that it contracts as a carrier, or otherwise
enters into any separate contract in writing on other terms and
conditions for any Service, the terms and conditions ("Separate
Terms") embodied or incorporated in such bill of lading,
waybill, cargo receipt, or separate contract shall be paramount
and prevail in respect of the Service contracted for to the extent
that these Conditions are in conflict with the Separate Terms;
PROVIDED that where:
(a)
the provisions
of these Conditions on any matter are not in conflict with the
applicable terms of the Separate Terms; or
(b)
in respect
of any matter about which the Separate Terms are silent the provisions of these
Conditions, unless otherwise expressly stated in the Separate
Terms, shall continue to apply and be operative. For the avoidance
of doubt, the signing or issue of a bill of lading or waybill
or cargo receipt by Company as agent of a third party is not the
issue by Company of its own bill of lading or waybill or cargo
receipt. 3.
CUSTOMER AND OWNER 3.1 Customer entering
into any transaction or business with Company expressly warrants
that Customer is either Owner or authorized agent of Owner, and
that it is authorized to accept and does accept these Conditions
not only for itself but also for and on behalf of Owner. 3.2 Customer agrees
and warrants that all and any representations, warranties, undertakings,
agreements, obligations (including obligations to pay), liabilities,
responsibilities and indemnities expressed or implied to be made,
given or assumed by Customer in or under these Conditions are
made, given and assumed by Customer jointly and severally with
Owner. 3.3 Customer agrees
and warrants that all and any Rights and Defences
available to Company may be enforced or raised by it against Customer
and Owner (and each of them). 4.
STATUS AND ROLE OF COMPANY 4.1 Company reserves
to itself the discretion to provide any service as a principal
or to procure as an agent the provision of the required service
by third party(ies). 4.2 Company acts as
a principal in respect of a Service if and to the extent that
one or more of the following is applicable:
(a)
the Service
is performed by Company itself and the Goods are in its actual
custody and control;
(b)
where (as
described in Clause 2.3) Company issues its own bill of lading
or waybill or cargo receipt as a carrier or enters into a separate
contract and under the Separate Terms Company contracts as a principal;
(c)
under any
compulsorily applicable law Company is or is deemed to be providing
the Service as a principal. 4.3 Company shall not
be taken to be acting as a principal in respect of any Service
by reason only of any one or more of the following:
(a)
the charge
by Company of an inclusive price;
(b)
the supply
by Company of its owned or leased equipment and/or facilities;
(c)
the arrangement
by Company for Goods to be forwarded, carried, transported, stored
or otherwise handled together or in consolidation with other goods.
4.4 Save as provided
in Clause 4.2, all Services to Customer are provided by Company
as agent. Without prejudice to the generality of the foregoing
sentence, Company always acts as an agent:
(a)
where Company
procures the issue of a third party bill of lading or waybill
(air or sea or road) or other transport documents (including but
not limited to cargo receipts under the Montreal Convention) containing
or evidencing a contract of carriage between a third party and
Customer (whether or not the same is expressly signed/issued by
Company as agent of the third party);
(b)
when Company
provides any Service in respect of or relating to customs clearance
or other requirements, taxes, licences,
consular documents, certificates of origin, inspection, other
certification and other services similar or incidental thereto;
or
(c)
where Clause
12 and/or Clause 13 applies. 4.5 Customer consents that Company
may act as agent or sub-contractor of any third party in any transaction
or service or business which relates to or otherwise affects Customer
or Owner or the Goods. Where Company acts as such agent or sub-contractor,
Clause 7, without prejudice to Company's other Rights and Defences whether under these Conditions or otherwise, shall
apply. 4.6 Company shall be entitled to
perform any Service or exercise any power or discretion hereunder
by itself or its parent or subsidiary companies. Any contract
to which these Conditions apply is made by the Company on its
own behalf and also as agent for and on behalf of any such parent
or subsidiary company and any such company shall be entitled to
the benefits of these Conditions. 4.7 Clauses 5 and 6 respectively
set out certain specific provisions where Company acts as an agent
or (as the case may be) as a principal. For the avoidance of doubt,
the other provisions of these Conditions are, in either case,
applicable unless in conflict with or repugnant to the applicable
specific provisions. 4.8 Company is not a common service
provider and never a common carrier, and may in its sole discretion
refuse to provide any service to any person. 4.9 All and any Services provided
by Company gratuitously will be provided without acceptance of
any liability of whatever nature and howsoever arising. Services
shall be deemed provided gratuitously if provided by Company free
of charge (other than disbursements, out of pocket expenses, and
items referred to in Clause 11.4). 5.
COMPANY ACTING AS AGENT 5.1
When Company acts as agent, Company shall be entitled,
and Customer hereby expressly authorizes Company, to: (a) enter into (in the name of Customer
or Owner or Company or otherwise) all and any contracts with any
third party on any terms (including standard trading terms and
terms exempting or limiting liability of such third party); and
(b) do all and any other
acts on behalf of Customer
and/or Owner in relation to the performance or fulfillment of
Customer's instructions. Matters authorized aforesaid include
without limitation selecting, engaging and contracting with any
carriers, forwarders, truckmen, receiving agents, delivery agents, warehousemen,
packers and other service providers. 5.2
Company shall be entitled in its sole discretion to delegate
on any terms its authority in whole or in part. 5.4 Unless contrary written instruction
is given by Customer and accepted by Company in writing, Customer
waives all rights of enquiry as to the terms, conditions and other
particulars of contracts or arrangements entered into by Company
pursuant to Clause 5.1. 5.5 Without prejudice to other methods
by which Company may charge Customer, Customer expressly agrees
that Company may in its discretion charge Customer an inclusive
sum and so that the difference between the amount charged by Company
and the amount charged by the third party will represent Company's
remuneration or commission or income. 6.
COMPANY ACTING AS PRINCIPAL 6.1 If Company acts
as a principal in relation to a Service, then subject to Clause
2.2 and any contrary provisions of the Separate Terms (if any),
this Clause 6 and (in accordance with Clause 4.7 and the proviso
of Clause 2.3) the other provisions of these Conditions shall
apply. 6.2 Where Company acts
as a principal in relation to a Service, Company shall have full
liberty to perform the Service itself, or to sub-contract on any
terms whatsoever the whole or any part of the Service. In respect
of any Service (or any part thereof) sub-contracted:
(a)
Company shall
have full benefit of the Rights and Defences
available to the sub-contractor(s) (whether in contract or under
statute or otherwise in law) as if such Rights and Defences
were expressly incorporated herein for the benefit of Company,
and the liability of Company shall be limited to the amount recoverable
by Company from the sub-contractor(s).
(b)
Where Company
sub-contracts any Service (or any part thereof) to a third party,
Customer shall defend, indemnify and hold harmless Company from
and against any Liability which Company may incur or suffer arising
from or in connection with such sub-contract or sub-contracting
arrangements, unless such Liability is caused by the wilful
default or wilful misconduct of Company.
6.3 Where Company acts as a principal
in the carriage of Goods, Company's liability (if any) for loss
or damage or delay of Goods shall be determined as follows:
(a)
If the stage
of carriage during which the loss or damage or delay occurred
is known, Company's liability shall be determined by the provisions
of any international convention or national law the provisions
of which:
(i)
cannot be departed from by private contract
to the detriment of the claimant; and
(ii)
would have applied if the claimant had made
a separate and direct contract with Company in respect of the
particular stage of carriage during which the loss or damage or
delay occurred and received as evidence thereof any particular
document which must be issued in order to make such international
convention or national law applicable AND Company shall be
entitled to all Rights and Defences
under or pursuant to such international convention or national
law as well as other Rights and Defences under these Conditions which are not repugnant to
such international convention or national law.
(b)
In any other
case (including without limitation where (i)
the stage of carriage during which the loss or damage or delay
occurred is unknown, or (ii) although such stage is known, no
international convention or national law would apply by virtue
of Clause 6.3(a) to such loss or damage or delay), Companyˇ¦s liability
shall be determined in accordance with these Conditions including
(without limitation) in particular Clause 20. 6.4 The international conventions
which may be applicable include (a) in relation to carriage by
sea, the Hague Rules and "If the carriage
involves an ultimate destination or stop in a country other than
the country of departure, the Warsaw Convention may be applicable
and that the Warsaw Convention governs and in most cases limits
the liability of carriers in respect of loss of or damage or delay
to cargo. The agreed stopping
places (which may be altered by carrier in case of necessity)
are those places, except the place of departure and the place
of destination, set forth on the face of the air waybill or shown
in carrier's timetables as scheduled stopping places for the route.ˇ¨
Further, for the avoidance
of doubt it is hereby declared that for the purpose of Article
9 of the (unamended) Warsaw Convention
signed on 12 October 1929, cargo shall not be deemed to be accepted
by carrier until the waybill has been made out. 6.6 Without prejudice to the generality
of Clause 6.2 and Company's other Rights and Defences,
where the owner, charterer or operator of the vessel concerned
or any other person entitled establishes a limitation fund pursuant
to the applicable International Convention on the Limitation of
Liability for Maritime Claims or applicable national law, then
Company's liability shall be limited to that proportion of the
limitation fund as allocated to the Goods concerned. 6.7 The Both to Blame Collision
and New Jason Clauses published by the Baltic and International
Maritime Council and obtainable from Company or its agent upon
request are hereby incorporated in these Conditions. Without prejudice to
the generality of Clause 6.2, if Company incurs any Liability
under a Both to Blame Collision Clause or New Jason Clause or
any other similar clause under any sub-contract entered into for
the purpose of any Service to Customer or Owner, Customer shall
defend, indemnify and hold harmless Company from and against such
Liability. 7.
COMPANY ACTING FOR THIRD PARTY SERVICE PROVIDER 7.1 Where (as provided in Clause
4.5) Company acts as agent or sub-contractor of a third party,
it is hereby agreed that in respect of any act, omission, negligence,
neglect or default committed by Company in the course of acting
as such agent or sub-contractor, Company, as against or relate
to Customer or Owner or others claiming under Customer or Owner
or any relevant goods, shall (subject to Clause 2.2) be entitled
to:
(a)
all the Rights
and Defences available to such third
party (or its agents or sub-contractors), whether in contract
or under statute or otherwise available in law, as if such third
party Rights and Defences were expressly incorporated in these Conditions for
the benefit of Company and made applicable to such act, omission,
negligence, neglect or default; and
(b)
(without
prejudice to (a) above) all the Rights and Defences
of Company under these Conditions or otherwise available in law.
7.2 Without
prejudice to its generality, Clause 7.1 shall apply where Company
acts as agent or sub-contractor of a third party and in connection
with any carriage of goods undertaken by such third party delivers
(or arranges to deliver) to Customer or Owner or collects (or
arranges to collect) from Customer or Owner any goods after their
discharge or prior to their loading. 8.
CUSTOMER'S WARRANTIES AND OBLIGATIONS 8.1
Customer warrants to Company as follows: (a) Instructions given to Company (or
any person on its behalf) are lawful, reasonable, sufficient and
executable. (b) Goods
to be presented to Company (or any person on its behalf) shall
be presented at Company's nominated place of presentation within
the appointed time and in the quantity, packaging and conditions
as previously agreed by Company.
(c)
Goods presented
for any Services are lawful goods and contain no contraband or
prohibited items or any item which infringes or may infringe intellectual
property or other rights of any other person.
(d)
Goods presented
are fit and suitable for the Services and the purposes for which
they are made available or presented to Company or any person
on its behalf.
(e)
When presented,
the Goods are in such condition so as not to cause damage or injury
or likely to cause damage or injury to any property or person
for any reason whatsoever.
(f)
Prior to
presentation, Customer shall have notified Company in writing
of any special nature of the Goods which require special or specific
handling, precaution or attention.
(g)
Particulars
of Goods given to Company (or any person on its behalf) are complete,
accurate and include all data and information necessary for all
purposes (including without limitation customs, consular and other
purposes) to accomplish the relevant instructions and the required
Services effectively, lawfully and safely.
(h)
Without prejudice
to (f) or (g) above, all information relating to the Goods is
complete, accurate and true and in all respects in conformity
and compliance with cargo declaration requirements under all applicable
laws, rules and regulations.
(i)
All necessary
documents including, without limitation, declarations, applications,
certificates, licences, confirmations,
invoices and packing lists shall be timeously
provided to Company or persons nominated by Company.
(j)
Goods have
been properly, securely and sufficiently packed, and prepared
(including proper labelling and marking)
in compliance with any statutory regulations or official or recognized
standards or requirements, and that such packing and preparation
are appropriate to all operations affecting the Goods and in particular
to withstand the ordinary risks of handling, storage and carriage.
(k)
Proper and
sufficient examinations or checks of the Goods have been conducted
and all steps have been taken in compliance with all applicable
statutory regulations or official or recognized standards or requirements
relating to security or integrity of goods.
(l)
Customer
has complied with all laws and regulations relating to the Goods
as regards inter alia their nature, condition, packing, labelling,
marking, description, handling, storage and carriage.
(m)
Customer
shall comply with operational procedures from time to time prescribed
by Company or persons on its behalf or its sub-contractors.
(n)
Where Services
are to be provided by Company on a continuing basis, Customer
shall on a continuing basis provide Company (and persons nominated
by it) with realistic forecasts of cargo throughput and requirements
at such intervals and with such details as Company may reasonably
require for the proper performance of the Services contracted
for.
(o)
The consignee
or other person designated or entitled to take delivery of the
Goods shall so take delivery within the time and at the place
for taking delivery paying all necessary charges, taxes and duties
and complying with all applicable formalities and procedures including
without limitation surrendering all relevant documents.
(p)
Where Goods
are packed in or on a Transport Unit not provided by Company,
the:
(i)
Goods have
been properly and competently packed into/onto the Transport Unit;
(ii)
Goods are
suitable for handling or carriage in/on the Transport Unit being
utilized; and
(iii)
Transport
Unit is in a suitable condition to carry the Goods packed therein
or thereon onto the destination intended.
(q)
Where Goods
are packed by Customer in a Transport Unit provided by Company:
(i)
prior to
and at the time of packing, Customer has inspected the Transport
Unit and has found the same to be in good repair, order and condition
suitable for the packing of the Goods and for the carriage and
other handling;
(ii)
the Goods
have been properly and competently loaded into/onto the Transport
Unit; and
(iii)
the Goods
are suitable for handling or carriage in/on the Transport Unit
being utilized.
(r)
Customer
is knowledgeable about its business and matters relating thereto
and is able, prepared and willing to use all reasonable endeavours
to co-operate with Company for efficient execution of the Services
and instructions. (b) Without prejudice to any of Company's
other Rights and Defences, if there
is (or Company believes that there is) any breach or non-performance
or delay in the performance by Customer of any of the provisions
contained in Clause 8.2(a), Company may (without liability) forthwith
refuse to provide or to continue to provide any Service to Customer
and/or Owner. 9.
CUSTOMER'S INDEMNITIES 9.1
Customer shall indemnify and save harmless Company from
and against: (a) Liabilities arising as a result of
Company acting in accordance with Customer's or Ownerˇ¦s instructions,
or arising from any breach by Customer or Owner of any warranty,
representation, agreement or undertaking herein contained, or
arising from any act or omission or negligence (including the
provision of ambiguous or incomplete or inaccurate information
or instructions) of Customer or Owner or their respective servants,
agents or sub-contractors; (b) all and any claims, costs and demands
whatsoever and by whomsoever and howsoever arising or caused made
or preferred against Company in excess of or in addition to the
liability of Company under these Conditions; and
(c)
all and any
claims of a general average or salvage nature which may be made
on Company, and Customer shall provide such security as may be
required by Company in this connection on demand; such security,
if so required by Company, shall be made prior to delivery or
release of Goods. 9.2 Advice and information, in whatever
form given, is provided by Company (or person(s) on its behalf)
for Customer only, Customer shall indemnify and save harmless
Company from and against any Liabilities arising out of any other
persons relying upon such advice or information. 9.3 Customer undertakes that no
claim of whatsoever nature and howsoever arising shall be made
against any officer, servant, agent or sub-contractor of Company
which imposes or seeks to impose upon such person any liability
in connection with any Services and/or Goods and/or instructions.
If any such claim is made, Customer shall indemnify and save harmless
Company from and against all consequences thereof. 9.4 Without prejudice to Clause
9.3, every officer, servant, agent and sub-contractor of Company
shall have the benefit of Company's Rights and Defences
under these Conditions as if the same were expressly set out herein
for their benefit; and in entering into any contract to which
these Conditions relate, Company, for the foregoing purposes,
does so not only for itself but also as agent and trustee for
such persons. 10.
DANGEROUS, VALUABLE, PERISHABLE AND OTHER GOODS 10.1 Except pursuant to special arrangements
previously agreed in writing by Company, Customer warrants that
it shall not tender for Services any Dangerous goods, Valuable
goods, Perishable goods, live animals, plants or other goods which
require any special handling or attention of whatsoever nature.
Company shall have the right to determine whether any goods tendered
or intended to be tendered for Services belong to or have become
any one or more of the aforesaid categories (whether at the time
of tender or subsequently). 10.2 Should (in the absence of special arrangements
previously agreed in writing by Company) Customer or Owner nevertheless
tender or cause to be tendered for Services any Goods in breach
of Clause 10.1, then, irrespective of whether Company, its servants,
agents or sub-contractors are or ought to be aware of the nature
thereof and irrespective of whether any description or declaration
of the nature or value of the Goods is contained in any documents
relating to or accompanying the Goods, the following shall apply:
(a)
no liability
whatsoever and howsoever arising will be accepted by Company,
its officers, servants, agents or sub-contractors for or in connection
with such Goods;
(b)
Customer
shall be liable for all and any loss and damage of whatsoever
nature howsoever caused by or to or in connection with such Goods,
and shall indemnify Company from and against all and any Liabilities
arising in connection therewith; and
(c)
such Goods
may, without prior notice to Customer or any other person, be
destroyed or stored or disposed of or otherwise dealt with at
the sole discretion of Company or any other person in whose custody
they may be at the relevant time, without any liability for Company
or such person. 10.3 If any Dangerous or Perishable Goods or
live animals or plants are accepted for Services pursuant to special
arrangements previously made in writing, they may nevertheless
be so destroyed or disposed of or otherwise dealt with (without
liability) if, in the sole opinion of Company or of any person
in whose custody the Goods may be in at the relevant time, they
pose a risk to other goods, property, life or health. 10.4 If Company agrees to accept
for Service any Goods which require temperature control, Customer
warrants that it shall not tender any such Goods without having
previously given written notice of their nature and particular
temperature range to be maintained and, in the case of a temperature
controlled Transport Unit packed by or on behalf of Customer,
Customer further warrants that:
(a)
the Transport
Unit has been properly pre-cooled or pre-heated as required;
(b)
the Goods
have been properly stuffed and/or packed in the Transport Unit;
and
(c)
the Transport
Unit thermostatic controls have been properly set. 10.5 If the requirements of Clause
10.4 are not complied with, Company (its servants, agents and
sub-contractors) shall not be liable for any loss or damage of
or in relation to the Goods caused by such non-compliance, and
Customer shall indemnify and save harmless Company from and any
Liabilities arising therefrom. 10.6 If, by special arrangement accepted
by Company in writing, Goods have been packed into a refrigerated
or similar Transport Unit by or on behalf of Company and a particular
temperature range has been requested by Customer (and accepted
by Company in writing), Company will set or cause to be set the
thermostatic controls within the requested temperature range at
the time of commencement of the relevant Service. Company does
not guarantee and accepts no responsibility for the continued
maintenance of any temperature inside the Transport Unit (whether
packed by or on behalf of Customer or Company). 11. QUOTATIONS AND CHARGES 11.1 Customer undertakes to pay to
Company in cash (or in such other mode as Company may otherwise
stipulate or agree) all sums immediately when due without deduction
or deferment on account of any claim, dispute, counterclaim, set-off
(equitable or otherwise), or any other matter whatsoever. 11.2 Charges for Services shall be
deemed fully earned on receipt of Goods or commencement of Service
by or for Company (whichever is the earlier) and shall be paid
immediately when due and shall be non-refundable in any event.
Without prejudice to its generality, the preceding sentence shall
apply notwithstanding:
(a)
any loss
or damage or delay of Goods or any claim whatsoever and howsoever
arising or caused; or
(b)
any refusal
or failure for whatsoever reason of the consignee or other designated
receiver to take delivery of Goods; or
(c)
any confiscation
or other disposal of Goods by customs or other authorities for
whatsoever reason; or
(d)
any abandonment,
destruction, sale, storage or otherwise disposal of Goods for
whatsoever reason pursuant to the terms of these Conditions. 11.3 Unless otherwise agreed by Company in writing,
Company's invoices shall be due for payment immediately upon presentation.
11.4 Customer shall be liable for
any duties, taxes, imposts, levies, deposits or outlays of any
kind levied by any authorities at any port or place for or in
connection with the Goods or Services (other than profit tax of
Company), and for any payments, fines, expenses, loss or damage
whatsoever incurred by Company, its servants, agents or sub-contractors
in connection therewith. 11.5 Customer shall, upon request,
make immediate (advance) payment to Company to cover any money
for which Customer is or may become liable under Clause 11.4.
Company shall not be under any obligation to advance any money
to Customer or Owner or any person for the purpose. 11.6 Unless otherwise agreed by Company
in writing, on all amounts overdue, Company (without prejudice
to its other rights or remedies) shall be entitled to charge interest
at the rate of 12% per annum
during the period that such amounts are overdue. 11.7 Quotations are given for immediate
acceptance and are subject to withdrawals or revisions. Company
may, notwithstanding any acceptance, revise quotations or charges
with or without prior notice in the case of changes (beyond its
control) in the costs for providing the Services contracted, including,
without limitation, changes in currency exchange rates, fuel costs,
rates of freight, insurance premiums or other costs or charges
relative to the Goods. Customs duties, imposts, levies, deposits,
taxes and other government charges or other outlays are additional
to charges quoted. 11.8 Charges for Services relative
to goods are usually quoted and charged on "chargeable weight"
basis. Chargeable weight is the higher of actual gross weight
or volume weight. Charges expressed by reference to "per
kilogramme" or "per ton"
refer to the higher of actual gross weight or volume weight. Details
relating to computation of charges will be provided upon request.
11.9 Company shall be entitled to
enforce any liability of Customer or to recover any sums payable
by Customer against or from Customer as well as Owner. When Goods
are accepted or dealt with upon instructions to collect freight,
duties, charges or other expenses from the consignee or other
person(s), Customer shall remain responsible for the same if they
are not paid by such consignee or other person(s) immediately
when due. 11.10 If any money owing to Company is not paid
when due, Company, without prejudice to its other rights or remedies,
may at any time thereafter by notice in writing to Customer and
without liability whatsoever immediately terminate:
(a)
provision
of all or any Services, whether or not such Services relate to
the money overdue; and/or
(b)
all or any
credit arrangements granted to Customer, whereupon all moneys
owing by Customer not otherwise due for payment shall become due
and payable immediately. 11.11 Company shall be entitled to retain and
be paid all brokerages, commissions, allowances and other remunerations
customarily retained by or paid to freight forwarders. 12.
INSURANCE 12.1 No insurance will be arranged except on
express written instructions given by Customer and accepted by
Company in writing. Where Company accepts such instructions, Company
shall act solely as agent of Customer using reasonable efforts
to assist Customer in obtaining insurance coverage (incorporating
provisions waiving all rights of subrogation and all rights of
recourse against Company, its officers, employees, agents and
sub-contractors) for and on behalf of Customer at Customer's expenses.
Company does not warrant or undertake any such insurance shall
be accepted by the insurance company or underwriters. All insurances
effected through the assistance of Company are subject to the
usual exceptions and conditions of the policy of the insurance
company or underwriters taking the risk. Unless otherwise agreed
in writing, Company shall not be under any obligation to assist
Customer to obtain a separate insurance on the Goods. Where the
underwriters dispute their liability for whatsoever reasons, Customer,
as the assured, shall have recourse against the underwriters only.
12.2 Company is not and does not
hold itself out as carrying on business as an insurer or insurance
broker or insurance agent. 13.
SPECIAL DELIVERY 13.1 Unless written instructions are given by
Customer and accepted by Company in writing, Company does not
accept instructions or any liability for delivery or release of
Goods in special circumstances, such as, without limitation, delivery
or release of Goods against payment or against surrender of particular
documents. 13.2 Where Company engages or appoints third
party(ies) to effect such instructions,
Company shall always act as agent of Customer. Company shall in
no circumstances be responsible for any act, omission, default,
suspension, insolvency, negligence, or fault of such third party(ies),
nor for any delay in remittance, loss in exchange, loss during
transmission, loss in the course of collection or any other loss
howsoever caused. 14. LIEN 14.1 Company shall have a particular and general
lien and right of detention on all Goods (and documents relating
to Goods) in its possession, custody or control for all sums due
at any time from Customer and/or Owner to Company, whether in
respect of such Goods or for any particular or general balance
or on any account whatsoever. Storage, demurrage and other applicable
charges in respect of Goods under lien or otherwise detained shall
continue to accrue on the account of Customer. 14.2 Company shall be entitled on not less than
14 days written notice to Customer to sell, dispose of or otherwise
deal with such Goods or documents (by auction or private treaty
or otherwise) as agent for and at the risk and expense of Customer
and apply the proceeds thereof in or towards payment of such indebtedness.
Upon accounting to Customer for any balance remaining after payment
of sums due and cost of sale or disposal or other dealing, Company
shall be discharged of any liability whatsoever in respect of
such Goods or documents. Company shall not be liable for any deficiencies
or reduction in value received on the sale or disposal or other
dealing of the Goods or documents, nor shall Customer/Owner be
relieved from liability merely because the Goods or documents
have been sold or disposed of or otherwise dealt with. 15.
NO DUTY TO DECLARE / PRESERVE RIGHTS 15.1 Unless express written instructions have
previously been given by Customer and accepted by Company in writing,
Company shall not be obliged to make any declaration for the purpose
of any statute, convention or contract as to the nature or value
of any Goods or as to any special interest in delivery or to make
any declaration as to specific stowage or storage requirements
of any Goods. 15.2 Without prejudice to the generality
of Clause 15.1, where there is a choice of rates according to
the extent or degree of liability assumed by Company and/or other
third party(ies), Goods will be carried, forwarded, stored, handled, dealt
with etc. at Customer's risk and at such charges, including the
lowest charges, as Company may at its discretion decide, and no
declaration of value will be made unless express written instructions
to the contrary have previously been given by Customer and accepted
by Company in writing. 15.3 To avoid doubt, it is hereby agreed that
statement or declaration of the value or nature of Goods by or
on behalf of Customer or Owner for insurance, export, import,
customs, documentary credit, invoicing or other similar purposes
shall not constitute instructions to Company to make any declaration
for the purposes of Clause 15.1 or Clause 15.2. 15.4 Company shall have no obligation to give
any notice of claim to any third party on behalf of Customer or
Owner or any other person, or to notify Customer or Owner or any
other person to give any such notice of claim, or otherwise to
take any action to preserve or protect any right or potential
right which Customer or Owner or any other person may have against
any third party. 15.5 Company shall be under no obligation to
exercise any lien for general average contribution due to Customer
or Owner. 16.
LIBERTIES AND RIGHTS OF COMPANY 16.2 Company reserves to itself absolute discretion
as to the means, routes, methods, manner and procedures to be
followed in the performance of any Services. 16.3 If in the opinion of Company it is at any
stage necessary or desirable in the interest of Customer or Owner
or Goods to depart from Customer's or Owner's instructions, Company
shall be at liberty (but is not obliged) to do so. Any such departure
and any action or omission taken or made pursuant thereto are
hereby expressly authorized by Customer. 16.4 Company may at any time comply with orders
or recommendations given by any Government or other authority
or agency. All and any responsibility and liability of Company
in respect of the Goods shall cease on delivery or other disposition
of the Goods in accordance with such orders and/or recommendations.
16.5 Pending forwarding or delivery, Goods may
be warehoused or otherwise held at any place(s) at the sole discretion
of Company at the cost and risk of Customer and/or Owner. 16.6 Customer expressly consents that Company
may (but is not obliged to) at any time open any Goods, packages
and Transport Units tendered by or on behalf of Customer or Owner
without notice to Customer or other persons to verify, inspect,
examine, weigh or measure the contents thereof. Any expense resulting
therefrom shall be borne by Customer.
(a)
delivery
of the Goods is not taken within the time and at the place as
provided in Clause 18.1, and not less than 14 days written notice
(of such failure to take delivery) has been given to Customer;
(b)
in the opinion
of Company or person in whose custody the Goods are at the relevant
time) the Goods are insufficiently addressed or marked; or are
likely to deteriorate, decay, become worthless or incur charges
in excess of their value; or may cause loss or damage or delay
to other goods or injury to persons; or the condition of the Goods
are or will likely become such that they cannot safely or properly
be serviced, carried, stored or otherwise handled;
(c)
there is
or Company reasonably considers that there is any breach of any
of the warranties or obligations contained in Clause 8 and such
breach is not remedied by Customer within 14 days (or such shorter
time as circumstances may require) after being required so to
do by Company by written notice to Customer. 16.8 Without prejudice to any of Company's other
Rights and Defences, upon and at any
time after the occurrence of an Event, Company may (in its sole
discretion and without liability and without notice (or further
notice in the case of Clause 16.7(a) or Clause 16.7(c)) to Customer
or any other person) do or arrange to be done any one or more
of the following (at the risk of Customer and/or Owner):
(a)
store the
Goods or any part thereof ashore or afloat, under cover or in
the open, at any place;
(b)
sell, dispose
of or abandon the Goods or any part thereof (whether or not any
action has been taken pursuant to (a) above). 16.9 Without prejudice to any of Company's other
Rights and Defences, upon any storage,
sale, disposal or abandonment as referred to in Clause 16.8, the
Goods (where Clause 16.7(b) or 16.7(c) is applicable) shall be
deemed to be duly delivered in proper performance of the Services
contracted for and Company shall have no further liability in
respect of the Goods (and where Clause 16.7(a) is applicable,
the Goods would have been deemed delivered pursuant to Clause
18.1). 16.10 All charges and expenses arising in connection
with any storage, dealing, handling, sale, disposal or abandonment
of the Goods in pursuance of Clause 16.8 or in connection with
any effort undertaken to preserve or save the Goods shall be paid
by Customer on demand; and Customer shall indemnify Company from
and against all and any Liabilities incurred or suffered by reason
of any action taken in pursuance of Clause 16.8. 16.11 All and any proceeds derived from any sale
or other disposal of any Goods pursuant to Clause 16.8 may be
applied by Company in its sole discretion towards payment of any
moneys owing by Customer and/or Owner to Company whether or not
the moneys owing relate to the Goods sold or disposed of. 17.
HINDRANCES ETC. If at any time in the
opinion of Company (or any person in whose custody the Goods are
at the relevant time) performance of the Services contracted for
is or is likely to be affected by any hindrance, risk, delay,
difficulty or disadvantage of any kind (whatsoever and howsoever
arising) occurring before or after commencement of the Service
or conclusion of the contract for the Service, Company may, without
prior notice to Customer or any other person, and at its sole
discretion, treat performance of the contract for Services terminated
and place the Goods at Customer's disposal at any place which
Company may in its sole discretion deem safe and convenient, whereupon
all responsibilities of Company for performance of the contract
and all responsibilities in respect of the Goods shall cease absolutely
and the Goods shall be deemed to have been duly delivered by Company
in proper performance of the Services (but without prejudice to
any of Company's other Rights and Defences).
Company shall be entitled, notwithstanding any other provisions
herein contained, to full payment of the charges for Services
contracted for, and any additional charges and costs consequential
to or resulting from the circumstances referred above. 18.
DELIVERY 18.1 (Notwithstanding any claim or
potential claim which it may have or any other matter whatsoever)
the Owner entitled to delivery of the Goods (i)
shall take delivery of the Goods within the time and at the place
when and where Company is entitled to require delivery of the
Goods to be taken, and (ii) at the time of taking such delivery
shall have paid all moneys for the release of the Goods including
without limitation charges taxes and duties and shall have complied
with all applicable procedures and formalities including without
limitation surrender of all relevant documents. If delivery is
not so taken, then upon expiration of the time for taking delivery,
the Goods shall be deemed to have been duly delivered in proper
performance of the Services contracted for. 18.2 If in accordance with applicable
custom, practices, laws, regulations, Goods are handed over into
the custody of any customs, port or other authority or any other
person having authority at the port or place for delivery, such
hand-over shall be deemed to be due delivery of the Goods in proper
performance of the Services contracted for. 18.3 Delivery or disposal of Goods to or at the
instructions of any person ("such person") presenting
any forged or fraudulent document purporting to be an original
part of a bill of lading, air or other waybill or other original
document entitling such person to take delivery or possession
or otherwise give instructions of disposal of the Goods shall
be deemed due delivery of the Goods in proper performance of the
Services contracted for, provided that the person releasing the
Goods to or disposing of the Goods as instructed by such person
did not actually know that: (i) such document was forged or fraudulent and (ii) such person
in fact had no right or authority of possession or disposal of
the Goods. 18.4 Upon delivery or deemed delivery of the
Goods, all liabilities of Company in respect of the Goods shall
cease absolutely and immediately (but without prejudice to any
of its Rights and Defences whether under these Conditions or otherwise including
without limitation Company's rights of lien and/or sale). 18.5 The rights of Company under
this Clause 18 are in addition and without prejudice to any of
its other Rights and Defences. 19. EXCLUSION 19.1 Company shall not be liable for any loss
or damage or any matter whatsoever if and to the extent the same
was caused by any of the following:
(a)
any act or
omission of Customer or Owner or any person (other than Company)
acting on behalf of Customer or Owner;
(b)
compliance
with instructions given by or on behalf of Customer or Owner;
(c)
insufficient
packing, marking, labelling and/or numbering
of the Goods (unless caused by the wilful
neglect or wilful default of Company);
(d)
handling,
loading, stowing, unloading of Goods by Customer or Owner or any
person (other than Company);
(e)
inherent
vice or defects of Goods;
(f)
riots, civil
commotions, strikes, lock outs, stoppage or restraint of labour;
(g)
fire, flood,
storm, explosion or theft;
(h)
any cause
or event which Company was unable to avoid and the consequences
whereof Company was unable to prevent by the exercise of reasonable
diligence;
(i)
any act or
omission of Company the consequences of which it could not reasonably
have foreseen;
(j)
compliance
with the instructions of any person entitled to give them;
(k)
saving or
attempts to save life during the performance of Services;
(l)
nuclear incidents;
(m)
any matter
beyond the control of the Company, its servants, agents or sub-contractors.
19.2 Clause 19.1 shall be without prejudice to
any of the Rights and Defences to which
Company is entitled whether under these Conditions or otherwise
available to it. 20.
LIABILITY AND LIMITATION Subject to Clause 2.2
and (where applicable) Clause 6.3(a) and without prejudice to
any other Rights and Defences of Company
whether under these Conditions or otherwise, the following provisions
shall apply as relates to liability of Company whether in relation
to any Services or any Goods or any instructions or any other
matters whatsoever: 20.1 Company shall not be responsible or liable
for any damage, loss, non-delivery or mis-delivery
of Goods or for any delay or deviation howsoever arising or caused
unless it is proved that such damage, loss, non-delivery, mis-delivery,
delay or deviation occurred whilst the Goods were in the actual
custody of Company and under its actual control and that the damage,
loss, non-delivery, mis-delivery, delay or deviation was due to the wilful neglect or wilful default
of Company or its own servants. 20.2 Company shall not be liable for any non-compliance
or mis-compliance (howsoever arising
or caused) of instructions given to it or other non-performance
or mis-performance (howsoever arising or caused) of Services
undertaken by it, unless it is proved that such non-compliance,
mis-compliance, non-performance or mis-performance
was caused by the wilful neglect or
wilful default of Company or its own servants. 20.3 Save as provided in Clause 20.1 or Clause
20.2, Company shall be under no liability whatsoever and howsoever
arising in relation to any Services or any Goods or any instructions
or any other matters whatsoever. 20.4 Subject
to Clause 20.7, in no case whatsoever shall the liability (if
any) of the Company howsoever arising exceed: (a) In the case of any claim for loss
of, damage to, delay, mis-delivery or
non-delivery of Goods; the least of:
(i)
the value of the Goods which is actually lost,
damaged, delayed, mis-delivered, or
not delivered;
(ii)
the reasonable cost of repair in the case of
physical damage;
(iii)
a sum at the rate of HK$10.00 per kilogramme of the weight of
the Goods which is actually lost, damaged, delayed, mis-delivered,
or not delivered; or
(iv)
a sum at the rate of HK$167.00 per cubic meter of the Goods which is actually lost, damaged,
delayed, mis-delivered or not delivered.
(b) In the case of any claim for the loss
of or damage to Customer's Equipment; the lesser of the following:
(i)
the depreciated value of the Customer's Equipment
(actually) lost or damaged; or
(ii)
the reasonable cost of repair in the case of
physical damage.
(c)
In the case
of any other claim (not falling within Clauses 20.4(a) or 20.4(b));
an amount equal to the charges actually paid to Company by Customer
for the Service (or part of the Service, as the care may be),
the subject matter of the claim or in relation to which the claim
arises. Provided that in no
event shall the total liability of Company under any one or more
or all (as the case may be) of Clause 20.4(a) through Clause 20.4(c)
exceed HK$5,000,000.00 per event or series of
events arising from or attributable to one common cause. (For the purposes of
Clause 20.4(a) above, the value of the Goods shall be the bona
fide FOB invoice value plus (if paid) freight and insurance. If
there is no bona fide invoice value of the Goods, the value of
the Goods shall be such value as at the place and time they are
delivered to Customer or person nominated by Customer, or at the
place and time they should have been delivered, calculated by
reference to the market value of goods of the same kind and quality.
For the purposes of Clause 20.4(c) above, "charges actually
paid to Company" excludes disbursements, out of pocket expenses
and items referred to in Clause 11.4.) 20.5 Company does not undertake that Services
will be completed or the Goods (or documents relating thereto)
will be delivered or made available within a particular time.
Subject to the foregoing sentence, Company agrees to perform Services
contracted for with reasonable despatch. 20.6 Without prejudice to any of its other Rights
and Defences, Company shall not in any
event be under any liability whatsoever for:
(a)
any special,
incidental, indirect, consequential or economic loss or damage
(including without limitation loss of market, profit, revenue,
business or goodwill); or
(b)
any loss,
damage or expense arising from or in any way connected with fire
or theft or a consequence of fire or theft in each case, irrespective
of the cause of such loss or damage or expense. 20.7 By special arrangement agreed by Company
in writing, Company may accept alternative limits of liability
in excess of the limits set out in these Conditions if Customer
agrees to pay and has paid Company's additional charges for accepting
such increased liability limits. In that case, such alternative
limits as agreed shall be substituted for the limits laid down
in Clause 20.4 of these Conditions. Details of Company's additional
charges will be provided upon request. 21.
NOTICE OF CLAIM AND TIME BAR Subject to Clause 2.2
and (where applicable) Clause 6.3(a), the following provisions
shall apply in respect of any claim (of whatsoever nature and
howsoever arising) against Company: 21.1 Any claim against Company must be made in
writing giving full particulars thereof and notified to Company
immediately. In giving any notice of claim, the claimant must
allow Company a reasonable amount of time to investigate the claim
and to reserve its rights against any third parties. 21.2 Company shall be discharged from all liabilities
and no action whatsoever shall lie against Company, if notice
of claim in writing as aforesaid is not received by Company within
14 current days from:
(a)
in the case
of damage to Goods; the date of delivery of the Goods;
(b)
in the case
of loss, non-delivery, mis-delivery
or delay of Goods; the date the Goods should have been
delivered; and
(c)
in any other
case; the date of the occurrence of the event giving rise
to the claim. Provided that if compulsorily
applicable law or international convention provides for a shorter
time limit for giving notice of claim, then such shorter time
limit shall apply. 21.3 All rights of claim against Company shall
be extinguished and Company discharged of all liabilities, unless
suit is brought in the proper forum and written notice thereof
given to Company within 9 months from the applicable date specified
in Clause 21.2(a) or (b) or (c). 22. APPLICABLE LAW AND JURISDICTION 22.1 These Conditions and any contract to which
they apply shall be governed by and construed according to the
laws of the Hong Kong Special Administrative Region. 22.2 Customer (for itself and for Owner) and
Company hereby irrevocably submit to the exclusive jurisdiction
of the Courts of the Hong Kong Special Administrative Region,
Provided that Company may also bring any legal proceedings against
Customer or Owner in any other Courts of competent jurisdiction,
and proceedings by Company in any one or more jurisdictions shall
not preclude legal proceedings by it in any other jurisdictions,
whether concurrent or not. 22.3 Without prejudice to any other rights or
remedies which Company may have, in the event of Customer (or
Owner) bringing any proceedings against Company in breach of Clause
22.2, Customer and Owner shall indemnify Company from and against
all consequences thereof including, without limitation, legal
costs and expenses incurred by Company. |