Terms of Business

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A.      Application
Save as otherwise specifically provided, the following Terms of Business (hereinafter referredto as “TOB”) apply to all work and services performed by “Aqaba Container Terminal”(hereinafter referred to as “Terminal”). Any user of Container Terminal services (hereinafter referred to as “Customer”) is deemed to have accepted these Terms of Business upon entry of their cargo orvessel into the Port/ Terminal. These Terms of Business are in addition to the Rules and Regulations of Terminal as updated from time to time.
 
B.DEFINITIONS AND INTERPRETATION:
 
1)      In this TOB the following words and expressions shall, unless the context shallotherwise require, have the following meanings:
 
"Authority" means Jordan Maritime Authority, Government of Jordan, Aqaba Special Economic zone Authority or Aqaba Development Corporation, including its employees and agents;
 
"Terminal" means, Aqaba Container Terminalincluding its successors, legal heirs, executors,administrators and permitted assigns;
 
"Cargo" means (i) any goods or articles of any kind whatsoever including HazardousCargo, transported in a Container, Non-standard Container or Out of GaugeContainer, excluding Non-containerised Cargo and (ii) empty Containers;
 
"CFS/ICD" means the Container Freight Station or Inland Container Depot where, amongst other things, Cargo ispacked, unpacked and cleared;
 
"Consignee" means a person other than the Customer entitled to receive Cargo;
 
"Consignor" means any person other than the Customer who delivers Cargo;
 
"Container" means
 
a)      any container 20', 40' or 45' in length, 8' in width and 8'6"/9'6" in height or anyother container developed for use in liner shipping at any time, including, butnot limited to, flat-racks, platforms, reefer containers and tanks, with ISOrecommended lifting arrangements and consistent with the safetyrequirements of CSC (Convention for Safe Containers) plates, and which can behandled by means of a standard 20', 40' and 45' spreader;
b)      a non-standard Container; and/or
c)       an Out of Gauge Container.
 
"Container Ship" means a ship fitted for the carriage of Containers;
 
"Container Terminal" means the Terminal at Aqaba Container Terminal comprising container berths, the Container Yard and CFS and all other equipmentand buildings at the Port whether constructed or under construction, together withany additional land, berths, buildings, Container Yards and CFS to be installed inconnection with any further developments thereto for the purpose of providingContainer Terminal Services;
 
"Container-transporter" means any road vehicle (including articulated vehicles) usedfor the carriage of Containers, Non-standard Containers and Out of Gauge Containersor any vessel other than a Container Ship;
 
"Container Yard" means the land and premises used by theTerminal where Containers are, amongst other things, stored, received and delivered;
 
"Contract of Carriage" means any contract or other document including, but notlimited to bills of lading and contracts of affreightment, seen and accepted by the Terminal,which evidence a contract between two parties to ship Containers and/or Cargoonboard a Containership for reward;
 
"Container Terminal Services or Terminal Services" means the services to be provided to the Customer bythe Terminal under this TOB ;
 
"Controlled" and "Control" means the holding of power to direct or cause the directionof management, policies and decisions of a company, corporation, partnership orother entity including, without limitation, through control by direct or indirect meansof not less than 50% of the voting rights in such company, corporation, partnership orother entity.
 
"Dutiable Cargo" means dutiable goods as defined by the relevant customs andexcise authorities;
 
"EDI System" means an electronic data interchange system whereby any Message istransmitted from one party to another party by electronic means;
 
"Force Majeure" means any act of God, act of public enemies, war, warlike acts,terrorism, restraint of governments, princes or peoples of any nation, riots, strikes,lockouts, insurrections, civil commotion, civil disobedience, floods, earthquake, fire,restrictions due to quarantines, epidemics, storms or any other causes beyond thereasonable control of the party claiming an event of Force Majeure;
 
"Hazardous Cargo" means Cargo of any kind classified by the International MaritimeOrganisation as hazardous cargo and shall include "dangerous goods" as defined inthe International Maritime Dangerous Goods Code;
 
"Indemnify" means indemnify and keep indemnified and hold harmless on demandregardless of the negligence or gross negligence of the indemnified party;
 
"Intermediary Service" means, in relation to the use of the EDI Service, services orfacilities provided by an intermediary as mutually agreed by the parties to facilitatethe interchange of data by electronic means;
 
"Message" means data structured in accordance with the User Manual and adoptingthe EDIFACT standards which is transmitted between Terminal and the Customer usingan EDI System through the medium of the Intermediary Service;
 
"Message Date Log" means a complete record maintained by the parties ofMessages, Message Transmissions and Message Retrievals transmitted to andreceived from the Intermediary Service database;
 
"Message Retrieval" means the access by any of the parties to the IntermediaryService data base and the retrieval by such party of any Message stored in the database;
 
"Message Transmission" means the deposit of a Message by any of the parties in theIntermediary Service database;
 
"Non-containerised Cargo" means any cargo, which cannot be handled by means ofnormal use of a container spreader, even with attachments;
 
"Non-standard Container" means a Container accepted for transport/carriage on aContainer Ship which cannot be handled by means of a normal use of a containerspreader, even with attachments;
 
"Out of Gauge Container" (OOG) means a Container whose contents exceed thedimensions of the standard Container of 20’, 40’ or 45’ in length, 8’ in width and8’6”/9’6” in height;
 
"Pilot" means any person not belonging to a Container Ship who has conduct thereof;
 
"Port" means Aqaba Container Terminal, King Hussein Bin Talal Street, 77110 Jordan
 
"Reefer Container" means a Container used for the transportation of refrigeratedCargo;
 
"Sub-contract" means any sub-contract for the provision of the Container TerminalServices or any part thereof by the Terminal to a Sub-contractor;
 
"Sub-contractor" means any sub-contractor appointed by the Terminal for the performanceof the Container Terminal Services or any part there-of;
 
"Terms of Business" (TOB) means this document.
 
"User Manuals" means the documents or instructions which are produced from timeto time by Terminal by way of guidelines to govern the methods and operation of thestructure, transmission and receipt of Messages each of which such documents maycover one or more Messages;
 
"Wharf" includes a berth, quay, pier, jetty, docks, ramp, landing place and any walland building adjoining the foreshore, sea-bed or river bed;
 
"Working Day" means any day (including any public holidays and Sundays), uponwhich the Terminal is open for busines
 
2)      The headings in this TOB are for information only and shall not be construed asforming part of this TOB.
 
3)      Unless the context otherwise requires:
i)        words importing the singular include the plural and vice versa;
ii)      words importing any gender include all genders; and
iii)    a reference to a person includes a reference to a body corporate and to anunincorporated body of persons.
 
 
 
C. MARINE AND STEVEDORING SERVICES
 
1)      Marine Services at the container terminal
 
Terminal will provide the following services to the Customer at the Port:
 
i)        receiving Container Ships at Wharves alongside the ContainerTerminal;
ii)      rendering assistance in making fast and unmooring Container Ships;
iii)    unloading from and loading onto, Container Ships of Containers.;
iv)    acceptance into and removal from the Container Terminal ofContainers by means of shore based cranes including lashing andunlashing of Containers on a Container Ship;
 
together with any other services which may be agreed in advance in writing,at prevailing public tariffs.
 
2)      Sailing Schedule and Berthing Requirements
 
i)        The Customer shall provide the Terminal with a sailing schedule and berthingrequirements, not later than three (3) weeks before each Container Ship'sexpected date of arrival at the Container Terminal. The berthingrequirements shall include details of the projected number of anyContainers to be discharged from, or loaded onto, that Container Ship atthe Container Terminal.
 
ii)      Not less than seventy two (72) hours before the estimated time of arrivalof a Container Ship at the Container Terminal, the Customer shall supplyto the Terminal such particulars in writing as the Terminal may require or as otherwiserequired from time to time of the Containers (including the contents &value thereof) onboard to be discharged from, or loaded onto, thatContainer Ship at the Container Terminal. The particulars shall include,but shall not be limited to, information relating to Hazardous Cargo, OOGcargo, Reefer cargo and Dutiable Cargo contained in or intended to becontained in a Container.
 
iii)    Any changes to the berthing requirements provided to the Terminal inaccordance with ClauseC2 (ii) above must be promptly notified to the Terminal,but in any event not later than forty eight (48) hours before the estimatedtime of arrival of the Container Ship at the Container Terminal.
 
iv)    The final time for arrival of a Container Ship shall be confirmed in writingat least twenty four (24) hours before the Container Ship's anticipatedtime of arrival.
 
v)      While every effort will be made by the Terminal to accommodate the Customers vessels as per the agreed schedule, the Terminal cannot be held responsible in the event that vessels cannot be accommodated as per the agreed schedule, for whatever reason.
 
3)      Arrival of a Container Ship at the Container Terminal
 
i)        Acceptance to receive the vessel at Terminal will be given to the Customer for each call as may be appropriate having regard to the currentcircumstances at that time and prior/existing commitments of the Terminal.The Customer shall ensure that each of its Masters shall not berth orattempt to berth his Container Ship at a Wharf alongside the ContainerTerminal until such acceptance has been given by the Terminal to the Customer that the Terminal is ready to receive the Container Ship. All marinemovements in the channel shall be done under Pilot’s escort and incompliance with Jordan Port regulations prevalent at the time.
 
ii)      The Terminal will provide mooring crew to render assistance to the ContainerShip. The mooring crew shall operate under the instructions and theresponsibility of the Master of the Container Ship for the sole purpose ofmaking fast or casting off the Container Ship's hawsers and mooringropes.
 
iii)    The terminal will not be responsible for or liable in any way for latent defects in mooring bollards or posts, nor for any improper mooring of the Container Ship at the Container Terminal, whether or not such mooring was completed with the assistance of a berthing officer and mooring crew provided by the Terminal.
 
iv)    The Customer shall supply gangways from the Container Ship to theContainer Terminal. The safety and illumination of gangways shall be thesole responsibility of the Customer and at the minimum should comply with the regulations laid down by International LabourOrganisation (ILO).
 
4)      Container Ships at the Container Terminal
 
i)        The Terminal shall provide the Customer with an efficient terminal control systemcontrolling the movement of Containers at the Container Terminal andshall report activities relating to Container movement
 
ii)      The Customer shall ensure that all equipment on Container Ships fordischarging and loading Containers is technically compatible with the Terminal’sequipment at the Container Terminal.
 
iii)    The Customer shall ensure that the Terminal’s employees/contractors working on board the ship are provided with safe access (including guardrails and fencing where applicable) between the gangway and the holds, deck cargoes, lashing platforms etc that are to be worked. If access is required during the hours of darkness, all access routes should be lit with a minimum of 10 Lux and 50 Lux in all working areas taking into account any specific need that may require additional lighting is accordingly provided.
 
iv)    The Terminal shall permit the Customer to bring trucks alongside Container Shipsand to load and discharge Container Ships’ stores at such times as maybe agreed and shall allow access to the Container Terminal to personnelto proceed on board a Container Ship for the purpose of carrying outrepairs. The Terminal and the Customer agree that access as referred to in thisClause is permitted by the Terminal on condition that the same is carried out inaccordance with the rules and regulations of the Terminal and the CustomsAuthorities. The Terminal will not be responsible or liable in any way for any loss,damage, cost, expense or injury arising in any way howsoever to anyperson or thing granted access in accordance with this Clause. TheCustomer will indemnify the Terminal for any loss, damage, expense, cost orinjury in any way howsoever caused by reason of the Terminal permitting accessunder this Clause.
 
D. CONTAINER AND CARGO HANDLING SERVICES:
 
1)      The Operator Container Terminal Services
Subject to what is stated in Clause C (2) above, the Terminal will provide thefollowing services to the Customer at Port:
 
i)        Receiving Containers from or for loading aboard Container Shipsberthed at Wharves at the Container Terminal;
 
ii)      Transferring Containers to or from the Container Yard
 
iii)    Receiving and delivering Containers from and to Containertransporters
 
iv)    Transferring of Containers to or from the C.F.S, ICD, Customs Examination Areas
 
v)      Moving empty Containers to and from storage yards
 
vi)    Reefer electricity supply, monitoring, PTI & minor repairs together withany other services which may be agreed in writing.
 
2)      Acceptance of Containers
 
i)        Containers delivered from or to the Customer or a Consignor or a Consigneeshall be brought for acceptance to or received from, such area within theContainer Terminal or other place adjacent to the Container Terminal as maybe designated from time to time by the Terminal.
 
ii)      The Terminal is not obliged to receive or deliver Containers unless full coveringdocumentation has been provided to the Terminal. The Terminal’s responsibility to theCustomer for Containers shall commence only when the Containers havebeen delivered to the area designated as referred to in Clause D 2(i) aboveand notice of acceptance has been duly given by the Terminal.
 
iii)    Prior to the presentation for acceptance to the Terminal of any Containers, theCustomer shall supply to the Terminal such particulars in writing thereof and whereappropriate of the contents of a Container including weight and othermeasurements or as may be requested by the Terminal. The Terminal is entitled to relyupon such particulars of the Container, the contents of a Container, as arefurnished by the Customer or Consignor. Any damage or loss resulting fromthe inaccuracy of, or omission from, such particulars given by the Customeror the Consignor shall be the Customer’s responsibility and the Customershall indemnify the Terminal against any loss, damages, claims, costs and expenseswhich the Terminal may suffer or incur directly or indirectly, as a result of suchinaccuracies or omissions.
 
iv)    The Terminal will accept no Containers for handling until the Terminal is satisfied thatadequate space reservation arrangements have been made for the onwardcarriage of the same within a period of time acceptable to the Terminal.
 
v)      Out of Gauge Container Acceptance: Prior to accepting OOG bookings it is the responsibility of the Customer to inform and secure cargo acceptance by the Terminal in writing.
 
vi)    Break Bulk Cargo Acceptance
 
a)      For the booking of break bulk cargo the Customer shall send the following details to the Terminal
·         Technical drawing, including centre of gravity indication
·         Weight
·         Dimensions
·         Lifting points
·         Special handling gear requirements
·         Proposed intermodal connections
·         Expected date of arrival/delivery to the Terminal
 
b)      The Terminal will thereafter analyze the feasibility of the operation and reply with a written confirmation of acceptance or non-acceptance along with the quotation if not covered by the published tariff of the Terminal
 
3)      Condition of Containers
 
i)        The Customer undertakes that, each Container which it delivers or causes tobe delivered to the Terminal is upon delivery secure, in a good state of repair andsuitable for its purpose. The Terminal shall be entitled to refuse to handleany Container which is not in the condition required by this Clause. Even incase where container as aforesaid in this Clause is accepted by the Terminal to load or handle, the Terminal shall not, in such case, be responsible for anydamage to container or its contents thereof.
 
ii)      The Terminal shall inform the Customer of any damage to any Container, its contentsor its packaging coming to the attention of the Terminal, and may refuse to load orhandle such Containers. If the Terminal gives notice to the Customer of damage to aContainer, its contents or its packaging, the Customer shall be entitled, withinseven (7) days of such notice being dispatched, to inform the Terminal in writing thatan inspection of the relevant items is required. The Terminal will thereafter permitthe Customer or its duly appointed agents upon reasonable notice to inspectthe Container, contents or packaging.
 
4)      Reefer Containers
 
i)        The Terminal will check and report upon the temperature of Reefer Containersstored at the Container Terminal subject to instructions being given inwriting to the Terminal at least two (2) working days in advance of receipt of aspecific Reefer Container by the Terminal and such instructions are accepted inwriting by the Terminal, Terminal may check and report upon the temperatures ofContainers as mutually agreed.
 
ii)      The Terminal shall not be responsible or liable in any way for any ReeferContainer or the refrigeration of refrigerated Cargo if the Customer fails togive written instructions, or provides wrong or inadequate instructionsconcerning the handling thereof.
 
iii)    If the Terminal is instructed in writing in accordance with Clause D 4 (i)the Terminal will,within a reasonable time of receipt, connect the Reefer Container to amain power supply. The Terminal shall not be obliged to maintain an auxiliarypower supply and the Terminal shall under no circumstances be responsible forany failure or discontinuance or interference from time to time in themains power supply howsoever arising.
 
5)      Stripping of Containers
 
i)        If the Terminal carries out an instruction to open the doors of a Container or to unpack aContainer for any purpose whatsoever, this shall be at the sole risk of the Customerand the Terminal shall not be responsible or liable in any way for any deterioration of thecontents of the Container or for contamination to other Cargo by reason of suchdeterioration. The Customer shall ensure compliance with the rules and regulationsof Customs for opening and unpacking of any Container. The Terminal may, but shall beunder no obligation to do so close, reconnect, or connect to a power supply forReefer Containers, repack or otherwise deal with any such Container and/or itscontents at the sole cost and expense of the Customer.
 
E. CONDITIONS RELATING TO THE PROVISION OF CONTAINER TERMINAL SERVICES
 
1)      Circumstances preventing safe handling
 
i)        When, in Terminal's sole opinion, there are any circumstances which will or may preventor hinder the safe handling, storage, loading, unloading or transport of anyContainers , the Terminal may, in its sole discretion, refuse to handle the same and shallgive notice of suchrefusal to the Customer or Consignor, as the case may be. Therecipient of such notice willremove or procure the removal of Containers and/or itscontents from the Container Terminal forthwith at its own risk and expense.
 
2)      Warranties and Indemnities given by the Customer
 
i)        So as to enable the Terminal to carry out the provision of Container Terminal Services efficiently, the Customer warrants and undertakes that:
a)      all particulars relating to Containers (including, but not limited to ReeferContainers) furnished by the Customer in accordance with these Terms ofBusiness are accurate;
 
b)      all Containers are properly packed and labeled and the contents are properlystowed and secured therein;
 
c)       all Containers are fit for their intended purposes and in a fit and propercondition to be handled or otherwise dealt with in the normal course ofbusiness by the equipment and operating procedures usually employed atthe Container Terminal;
 
d)      all Containers and Cargo comply with applicable laws, orders, regulations, orother requirements of Government, customs, municipal or other authoritieswhatsoever; and
 
e)      all Reefer Containers have been properly pre-cooled or pre-heated asappropriate and their controls have been properly set andthe Customer shall Indemnify the Terminal in respect of the consequence of thebreach of any of these warranties.
 
ii)      The Terminal shall not be responsible for or liable in any way, and the Customer shallIndemnify the Terminal against all damages, claims, costs and expenses suffered orincurred by the Terminal resulting directly or indirectly from any defects in a Containerand/or its contents.
 
iii)    The Customer is solely responsible for compliance with all laws, ordinances orregulations in force relating to the Container Ship and the Cargo and all matterswhatsoever relating to the Container Ship and the Cargo.
 
iv)    The Customer shall be responsible for any damage to the Terminal’s Wharves,premises, equipment, gendering, mooring bollards, all other property, otherContainer Ships, vessels and property belonging to the third parties, causedduring or arising from berthing or un-berthing and shall Indemnify the Terminal againstall claims, demands, losses, costs and expenses arising from any such damage.
 
v)      Upon the delivery of any Container to the Terminal, the Customer shall undertake to the Terminal that all values and other particulars in respect thereof supplied to the Terminal for customs or other purposes and all necessary customs removal permits arecomplete and accurate and, where appropriate, are valid and in full force andeffect. The Customer shall Indemnifythe Terminal and its servants, or agents againstall loss, damages, claims, costs, expenses, fines and penalties that the Terminal or itsservants, or agents may incur or suffer directly or indirectly as a result of anybreach of this undertaking.
 
vi)    The Customer shall ensure that Containers delivered to the Terminal are weatherproof.
 
vii)  The Customer shall Indemnify the Terminal, against all claims arising by reason of:
 
a)      any defects in any Container or the contents thereof;
b)      any mixture or confusion of Cargo; and/or
c)       shifting or movement of the Cargo.
 
viii)Overweight Containers : In case the weight of cargo or container isunderstated in the declaration submitted by the customer, the handling ofsuch cargo or container is at the sole risk and responsibility of the Customer,and Customer hereby indemnifies the Port against all injury, loss and damageresulting from the handling of such cargo or container.
 
3)      Delivery Orders etc.
 
i)        The Customer will appoint an agent in the Port ("the Port Agent") for thepurposes of this Agreement, and shall make the same known to the Terminal bynotice in writing. The Terminal shall not be required to deliver or otherwise deal withany Container or Cargo except with the authority of a delivery order signed bythe Port Agent.
 
ii)      The Customer shall ensure that the Port Agent registers with the Terminal, specimensignature(s) of the person(s) authorised to sign on its behalf. The Terminal shall beentitled to deliver or otherwise deal with any Container or Cargo inaccordance with a delivery order which appears to it after comparison withthe specimen signature(s) registered with it under this Clause E 3(ii) to havebeen properly signed by the Port Agent, and shall not be liable to theCustomer or any other person in consequence.
 
4)      Hazardous Cargo and Dutiable Cargo
 
i)        The Customer shall ensure that all goods tendered to the Terminal for loadingand/or unloading, comply with all applicable regulations for Hazardous Cargoand/or Dutiable Cargo and shall Indemnify the Terminal against any breach of thissection E(4) of this Terms of Business.
 
ii)      Prior to accepting hazardous  cargo bookings, it is the responsibility of the Customer to ensure that such hazardous cargo is permitted to be handled and stored at the Terminal
 
iii)    The Customer warrants that full details of any hazardous cargo will becorrectly declared in writing to the Terminal
 
iv)    The Terminal has the right to refuse to handle Cargo which, upon inspection, is foundnot to comply with the applicable rules or regulations or ordinances or prevalent laws and to reject and/or return such Cargo at the sole expense and risk ofthe Customer.
 
5)      Valuable Cargo
i)        The Terminal shall not be bound to accept Cargo of high value or which requires specialcare including, but without limitation:
a)      gold;
b)      silver;
c)       bullion, coins and currency notes;
d)      precious stones;
e)      precious metals;
f)        securities for cash and stamping;
g)      documents and title deeds;
h)      opium, essential oils and similar valuable drugs;
i)        lace, fur and feathers;
j)        works of art and paintings;
k)      scientific instruments of all kinds;
l)        revenue or postal stamps;
m)    gold, silver and platinum watches;
n)      precious metal jewellery works; and
o)      antiques;
p)      and any other valuables.
 
ii)      The Customer shall give the Terminal at minimum of 15 daysprior notice of their intended delivery of such Cargo to the Container Terminalwhether by Container Ship or Container-transporter to enable the Terminal to decidewhether or not it will accept such Cargo. Under no circumstances shall theCustomer deliver to the Container Terminal such Cargo, without the priorwritten approval of the Terminal. If such Cargo is delivered to the Terminal without its priorwritten approval, that Cargo will at all times be at the sole risk of theCustomer and the Terminal shall not be liable for any loss or damage howsoevercaused to such Cargo.
 
iii)    Notwithstanding the prior written approval of the Terminal in accordance with ClauseE5(i) above, the Terminal’s liability for loss of and/or damage to valuable Cargo as describedin Clause E5(i) above shall be limited to the amounts as set out in Clause E(8)except to the extent the Terminal agrees in writing to a higher limit on liability in aparticular case. The Customer shall be responsible for any additional costs ofinsurance (including, but not limited to, additional premiums and fees) that the Terminal incurs as a consequence of acceptance of valuable Cargo.
 
6)      Lien
 
i)        All Containers, Cargo and all documents relating to Containers and Cargo shall besubject to a particular and general lien respectively for charges due to the Terminal inrespect of such Containers or Cargo from the Customer. If any charges are not paidwithin one (1) calendar month after notice requiring payment has been given to suchCustomer, the Containers or Cargo subject to such lien, may be sold and theproceeds applied in or towards satisfaction of the outstanding charges and the costsincurred by the Terminal in such sale. Any sale of Containers or Cargo by the Terminal pursuant tothese Terms of Business , may be conducted by a private treaty, by public auction orotherwise in such manner as the Terminal shall in its sole discretion determine and the Terminal shall not be liable for any loss and/or damage to any person whatsoever as a resultthereof. This lien shall be in addition to any allowed by law.
 
7)      Costs and expenses to be paid by the Customer
 
The Customer shall pay:
 
i)        any costs and expenses which may be incurred by the Terminal in complying withany Government regulations requiring the movement, treatment, removal ordestruction of Hazardous Cargo or infested, contaminated or condemnedgoods or the treatment of the Terminal’s premises as a result of any infestation orcontamination arising from such Hazardous Cargo; and
 
ii)      all costs and expenses incurred by the Terminal arising out of or incidental to thefailure by the Customer to observe these Terms of Business including, butnot limited to, the rules for Hazardous Cargo or any one of them.
 
8)      Liability and Indemnity
 
i)        The maximum liability of the Terminal to the Customer for loss of and/or damage toContainers in the custody of the Terminal (i.e from the time of receiving upto andincluding the time of completion of loading onto any Container Ship orContainer-transporter), where such loss and/or damage was causedexclusively by the gross negligence or willful default of the Terminal, its agent,servants or Sub-Contractors , in relation to each incident for each Container,shall be the lesser of either the depreciated value of the Container or theactual cost of the repair provided always that under no circumstances shallthe claim exceed the following amounts:
 
a)      depreciated value of the Container or USD 500, whichever is less in thecase of any 20' dry Container;
b)      depreciated value of the Container or USD 750 , whichever is less in thecase of any dry Container of more than 20' in length;
c)       depreciated value of the Container or USD 3,000 , whichever is less in thecase of any 20' Reefer Container; and
d)      depreciated value of the Container or USD 4,500, whichever is less in thecase of any Reefer Container of more than 20' in length
e)      and for the avoidance of doubt, in the absence of gross negligence or willfuldefault, the Terminal shall have no liability whatsoever for such loss and/or damage.
 
ii)      The maximum liability of the Terminal to the Customer for loss of and/or damage toall Cargo in the charge of the Customer, its Sub-contractors, agents or theirassignees, whilst in the custody of the Terminal, where such loss and/or damagewas caused by the gross negligence or willfuldefault of the Terminal, its agents,servants or Sub-contractors, in relation to each incident for such Cargo, shallbe limited to the following:
a)      USD 500 in the case of any 20' dry Container;
b)      USD 750 in the case of any dry Container of more than 20' in length; and
c)       USD 1,500 in the case of any Reefer Container
d)      and for the avoidance of doubt, in the absence of gross negligence or willfuldefault, the Terminal shall have no liability whatsoever for such loss and/or damage.
 
iii)    Without prejudice to what is stated in this clause in no circumstances shall the Terminal’s liability exceed the limits of liability in accordance with the terms andconditions contained within the Customer's Contract of Carriage or, ifapplicable, the Container Ship's limitation fund except to the extent the Terminalagrees in writing to a higher limit on liability in a particular case.
 
iv)    The limitation of liability per incident under this Clause E(8) shall relate to thewhole of any losses and damages which may arise upon any one distinctoccasion, although such loss and/or damage may be sustained by more thanone person, and shall apply whether the liability arises at common law orunder any written law and notwithstanding anything in such written law.
 
v)      The Terminal shall only be liable to a Customer for any loss or damage to a ContainerShip (including gear and all other equipment) where such loss and/ordamage was caused by the gross negligence or willful default of the Terminal, itsagents, servants or Sub-contractors and notwithstanding anything containedin this TOB or elsewhere, the maximum liability of the Terminal to the Customer inrelation to each incident shall be limited to fifty thousand Unitedtates Dollars US$ 50,000.
 
vi)    The Terminal shall not be liable to the Customer for any loss or damage to HazardousCargo or for any loss, delay, damage or personal injury (including death)arising out of bad stowage in Containers unless caused by gross negligenceor willful default of the Terminal, its agents, servants or sub-contractors andPROVIDED THAT the maximum liability of the Terminal to the Customer in relation toeach incident shall be the limits of liability in accordance with clause E 8 (ii)and subject however to Clause E 8 (iv).
 
vii)  The Customer shall be liable for and shall fully Indemnify the Terminal, its servants,agents and sub-contractors against any liability for claims or suits, includingcosts and expenses incidental thereto, in respect of loss of or damage to anyproperty and death or injury suffered by any person caused by the negligenceor default of the Customer, its servant or agents pursuant to these Terms ofBusiness or otherwise.
 
viii)  The Terminal shall not, under any circumstances whatsoever, be responsible for orliable to the Customer for:
 
a)      any consequential or indirect loss or damage; or
b)      loss of profit, revenue, savings or contracts; injury to goodwill orreputation; or delay howsoever caused, including any breach by the Terminal of its obligations under this Contract or its breach of duty, negligenceor gross negligence.
 
ix)    In respect of any claim arising under any indemnity in favour of the Customercontained in this Contract the Customer shall:
a)      Within fifteen (15) days after becoming aware of the claim, notify the Terminal inwriting of the claim (the "Terminal Claim") against which the Customer is seekingto be indemnified together with all details of Terminal Claim in the actualknowledge or possession of the Customer at the time and becoming knownto it at any time thereafter;
 
b)      take such other steps as may be necessary or as the Terminal may reasonablyrequire to avoid or mitigate Terminal’s Claim;
 
c)       where the Terminal Claim relates to a claim by any third party against the Customer,not admit liability or make any offer, promise, compromise or settlement withthe third party without the prior written consent of the Terminal (which consent not tobe unreasonably withheld or delayed); and
 
d)      wherethe Terminal Claim relates to a claim by any third party against the Customer,at the request of the Terminal and at Terminal’s cost, cooperate with the Terminal or itsinsurers, in the defence, settlement and/or counter claim of such CustomerClaim.
 
x)      Notwithstanding the remaining provisions of these Terms of Business themaximum aggregate liability of the Terminal to the Customer in any calendar yearregardless of the cause of such claim and number of incidents shall in nocircumstances exceed One Hundred Thousand United States Dollars (US$ 100,000) provided that all amounts payable under any relevant insurancesheld by the Customer against any Customer claims shall be paid in full to the Terminal within fourteen (14) days of receipt of the same by the Customer fromthe relevant insurer of the Customer. The Terminal shall also not be liable for anyclaim with a value of less than five hundred United States Dollars (US$500).
 
xi)    Save as provided in this Clause E8 thee Terminal shall not be under any liability to theCustomer whether in contract, tort or otherwise in respect of the use of theContainer Terminal and the provision of the Container Terminal Services forany death, personal injury, damage or loss resulting from the use of theContainer Terminal and the provision of the Container Terminal Services orfrom any work done in connection therewith.
 
xii)  The Terminal does not give any warranty or representation that the Container Shipwill not ground whilst approaching, leaving or lying alongside the ContainerTerminal. Each Container Ship approaching, leaving and whilst lyingalongside the Container Terminal does so at the sole risk and responsibility ofthe Customer.
 
xiii)The Terminal shall not be responsible for or liable in any way for any damage or losssuffered or incurred during the berthing and un-berthing of a Container Ship.
 
xiv) The Customer shall be solely responsible for any damage to the Wharf and or/to the Port, Container Terminal, equipment, fenders, mooring bollards, container ships, vessels belonging to the Terminal or any third party, caused during or arising from the act of berthing or unberthing, whether by reason of incompetence or negligence of the Pilot in-charge of the ship belonging to the Customer, or as a result of insecure or improper mooring of the ship whilst alongside the wharf/berths, and shall hold the Terminal indemnified, by payment on demand, against all claims, demands, losses, costs and expenses arising from any such damage, except it is solely caused by gross negligence or default of the Terminal, its servants or sub-contractors.
 
xv)   The Customer and the Master of the ship shall be in sole charge of the ship whilst using any of the Wharves in the Container Terminal, and her safety shall be the sole responsibility of the Customer. The Customer shall be held responsible for any loss and/or damage that may arise from faulty navigation, or by reason of her breaking adrift from her moorings. No instruction or direction given, or act performed by the Terminal or its officers shall place any responsibility upon the Terminal, with respect to the security or safety of such ship.
 
xvi) In the event a ship drifts away from the Container Terminal while berthing or otherwise, it will be the sole responsibility of the Master of the ship and the Customer.
 
xvii)                       The Terminal shall not be responsible for the following events:
 
a)      Any non-compliance with the ISPS code, or any other related and necessary requirements which may prevent a ship from being permitted to berth at a Wharf in the Terminal.
 
b)      Breakdown, fire, explosion, sinking or any accident or incident which occurs on the ship, caused solely due to the Customer, ship owner’s or ship operator’s fault resulting in the ship being denied permission to berth at a Wharf in the Terminal
 
xviii)                     The Terminal will not be responsible or liable for any incorrect or delayed delivery ofany Container which is insufficiently, incorrectly or otherwise not properlymarked and/or in respect of which full and complete particulars in respect ofsuch delivery have not been provided to the Terminal.
 
xix) The Terminal shall not, under any circumstances, be responsible for or liable in anyway for any damage to Containers or their contents caused by rust, rain,typhoon, flood, tempest, lightning, fire or any similar event or occurrence.
 
9)      Insurance
 
i)        The Terminal is under no obligation to maintain insurance of Containers, Cargo orcontents of Containers of the Customer.
 
ii)      The Customer shall:
 
a)      take out and maintain adequate hull and machinery and P&I Insurance inrespect of its Container Ships, the later from a Club being a member of theInternational Group of P& I Clubs, together with insurances adequate to coverits liabilities under this TOB.
 
b)      If so requested, provide the Terminal with a copy of certificate of insuranceconfirming that these requirements have been complied with. Such requestor absence of such a request shall in no way be construed as waiving theCustomer's obligations to arrange insurance required by law or under thisTOB.
 
c)       The Terminal reserves the right to not allow those vessels to enter Port, which do nothave adequate hull and machinery and P&I Insurance in respect of itsContainer Ships, the later from a Club being a member of the InternationalGroup of P& I Clubs, together with insurances adequate to cover its liabilitiesunder this TOB.
 
10)  Unauthorised Access to Container Ships
 
i)        The Terminal will use reasonable endeavours to enforce strict controls to preventunauthorised access to the Container Terminal.
 
ii)      The Customer shall enforce controls on its Container Ships whilst berthed atthe Container Terminal in order to prevent unauthorised access to theContainer Terminal.
 
11)  Force Majeure
i)        A party shall not be liable for any failure to perform its obligations under this TOBcaused by Force Majeure provided it gives prompt notification to the other party of
a)      the event of Force Majeure and its likely duration
 
b)      the obligation(s) which areaffected, and how affected, and provided that it takes all reasonable steps tomitigate the effects of Force Majeure.
 
12)  Dispute Resolution:
 
i)        Any dispute or difference arising between the Parties out of or in connection with thisTOB shall promptly and in good faith be negotiated with a view to its amicableresolution and settlement.
 
ii)      In the event no amicable resolution or settlement is reached within a period of thirty(30) days from the date on which the dispute or difference arose, such disputesand/or differences shall be referred to the Arbitration as per clause E(13) of thisTOB.
 
13)  Law and Jurisdiction
 
i)        This TOB shall be governed by and construed in accordance with the laws of England.
 
ii)      Any dispute arising out of or connection with this TOB shall be referred exclusively to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
 
iii)    The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ Association (LMAA) terms current at the time when arbitration proceedings are commenced.
 
iv)    The reference shall be to three arbitrators.  A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other Party requiring the other Party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other Party appoints its own arbitrator and gives notice that it has done so within the 14 days specified.
 
v)      If the other Party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the Party referring a dispute to arbitration may, without the requirement of any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other Party accordingly.  The award of a sole arbitrator shall be binding on both Parties as if he had been appointed by agreement.
 
vi)    Nothing in this Clause E (13) shall prevent the Parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator. 
 
vii)  In cases where neither the claim nor a counterclaim exceeds the sum of USD 50,000 or such other sum as the Parties may agree, the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
 
viii)Notwithstanding the above, the Parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with this TOB.  In the case of a dispute in respect of which arbitration has been commenced, the following shall apply:-
 
a)      either Party may at any time and from time to time elect to refer the dispute or part of the dispute to mediation by service on the other Party of a written notice (the "Mediation Notice") calling on the other Party to agree to mediation;
b)      the other Party shall thereupon within fourteen (14) calendar days of receipt of the Mediation Notice confirm that they agree to mediation, in which case the Parties shall thereafter agree a mediator within a further fourteen (14) calendar days, failing which on the application of either Party a mediator will be appointed promptly by the Arbitration Tribunal (the "Tribunal") or such person as the Tribunal may designate for that purpose.  The mediation shall be conducted in such place and in accordance with such procedure and on such terms as the Parties may agree or, in the event of disagreement, as may be set by the mediator;
c)       if the other Party does not agree to mediate, that fact may be brought to the attention of the Tribunal and may be taken into account by the Tribunal when allocating the costs of the arbitration as between the Parties;
d)      the mediation shall not affect the right of either Party to seek such relief or take such steps as it considers necessary to protect its interest;
e)      either Party may advise the Tribunal that they have agreed to mediation.  The arbitration procedure shall continue during the conduct of the mediation but the Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration;
f)        unless otherwise agreed or specified in the mediation terms, each Party shall bear its own costs incurred in the mediation and the Parties shall share equally the mediator's costs and expenses; and
g)      the mediation process shall be without prejudice and confidential and no information or documents disclosed during it shall be revealed to the Tribunal except to the extent that they are disclosable under the law and procedure governing the arbitration.
ix)    Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
x)      The Parties shall use every reasonable endeavour to resolve disputes between them in the shortest possible time consistent with the proper presentation to the expert or arbitration tribunal of their submissions and evidence.  The Parties will in particular seek, in the absence of any reasonable excuse, to make such submissions and present such evidence within a period of thirty days from the commencement of the proceedings.  In the event of unreasonable delay by either Party, the expert or the arbitration tribunal shall be entitled to make an award even if that Party has failed to make or complete its submissions.
 
F. INVOICING AND PAYMENT
 
1.       In consideration for the provision of the Container Terminal Services by the Terminal to the Customer as per this TOB, the Customer shall pay the Terminal the applicable public tariff rates.
 
2.       If any tax in the nature of a consumption tax, a value-added tax, a goods and/or  services tax or similar tax (the “Tax”) is, or becomes payable in relation to this TOB under applicable law, during the term of this Agreement, and in case the Services rendered under this Agreement, come directly under the purview of such an enactment/ amendment and the Tax  becomes payable by or is recoverable from the Customer in terms and in accordance with such law, then the Customer shall, in addition to the applicable public tariff rates also be liable to reimburse the  Terminal  for an amount equal to the Tax.
 
3.       The Customer shall pay all charges in advance to the Terminal before requesting for any of the Terminal Services under this TOB.
 
G. EDI SYSTEM
 
1.       This Section G shall apply (without prejudice to the other Sections in these Terms ofBusiness) only where the Terminal has agreed in writing with the Customer for the partial orexclusive transmission and interchange of Messages between the parties by meansof an EDI System.
 
2.       Upon such agreement, the Customer and the Terminal shall become subscribers to theIntermediary Service and shall exchange all identification details and similarinformation to enable each party to effectively utilise the Intermediary Service.
 
3.       Application
 
i.         Until such time as the parties mutually agree that the EDI System may beused exclusively, it is agreed that the EDI System shall be operated in parallelwith an accepted manual system.In case of inconsistencies, any Messagetransmitted through the EDI System shall prevail.
 
ii.       The Terminal shall determine and monitor the progress of the development,implementation and priority of the EDI System.
 
iii.     All Message Transmissions must properly identify the sender and recipientand comply in all respects with the User Manuals and such of theIntermediary Service standard conditions as may be applicable from time totime.
 
iv.     If the sender issuing a Message Transmission requires a confirmatory receiptand does not receive the same, the original Message should be retransmitteduntil a receipt is received.
 
v.       The Intermediary Service mailbox receiving date and time of the Message (orof the first or original Message in case of repeated transmission of the sameMessage) shall be treated as the receiving date and time of the Message bythe recipient.
 
4.       Message Data Log
 
i.         The parties shall maintain (without modification) a Message Data Logincluding details of times of transmission and examination of theIntermediary Service mailbox. Data contained in the message Data Log shallbe retained by way of record for a period of not less than twelve (12) months.
 
ii.       The Message Data Log may be maintained on computer media or othersuitable means provided that, if it is necessary to do so, the data must becapable of being readily retrieved and presented in human readable form.
 
iii.     Each of the parties shall be responsible for making such arrangements asmay be necessary for the data contained in its Message Data Log to beprepared and maintained as a correct record of each Message Transmissionand Message Retrieval.
 
5.       The parties acknowledge that in the event of any complete or partial breakdown orfailure of the EDI System and/or the Intermediary Service, they will take all necessarysteps to ensure the continued transmission and receipt of relevant messages,notices and information by alternative and/or additional means such that theoperation of the Contract is not adversely affected.
 
6.       The Terminal reserves the right to amend the User Manuals from time to time, suchamendment to be notified to the Customer at which time the amendment shallbecome immediately operative.
 
7.       Security of Messages
 
Each of the parties shall:
 
i.         take reasonable care in so far as it is within its power to do so to ensure thatMessages are secure and that unauthorised access to its EDI System,Message Data Log and the Intermediary Service system is prevented;
 
ii.       ensure that Messages containing confidential information as designated bythe sender of the Message are maintained by the recipient in confidence andare not disclosed to any person not otherwise authorised or used by therecipient outside the terms imposed by the sender. Any authorized disclosure to a third party shall be made only after getting a prior writtenapproval of the Terminal;
 
iii.     apply special protection, where permissible, by encryption or by other agreedmeans, to those Messages which the parties agree should be so protected.Unless the parties otherwise agree, the recipient of a Message so protectedshall use at least the same level of protection for any further transmission ofsuch Message.
 
8.       Integrity of Messages
 
i.         The parties accept the integrity of all Messages and agree to accord thesethe same status as would be applicable to notices or information sent otherthan by electronic means, unless such Messages can be shown to have beencorrupted as a result of technical failure on the part of any machine, systemor transmission by the Customer.
 
ii.       Where there is evidence that a Message has been corrupted or if anyMessage is identified or capable of being identified by the sender asincorrect, it shall be re-transmitted as soon as practicable with a clearindication that it is a corrected Message.
 
iii.     The sender is responsible and shall use its best endeavours to ensure thatMessages are complete and correct. Notwithstanding the foregoing, therecipient must immediately inform the sender if it is, or should in all thecircumstances, be reasonably obvious to the recipient that the transmissionof such Message is incomplete, incorrect or otherwise deficient and in noevent shall any of the parties be liable under this Clause G 8 (iii) for theconsequences of any such deficiency.
 
iv.     If the recipient has reason to believe that a Message is not intended for it, itshould take reasonable action to inform the sender and should delete theinformation contained in such a Message from its system apart from theMessage Data Log.
 
 
9.       Limitation on Liability
 
i.         Without prejudice to the other provisions of these Terms of Business,none of the parties shall be responsible for any direct, indirect orconsequential loss or damage suffered by the other party or any third partyhowsoever arising solely as a consequence of the use of the EDI System,whether caused by the parties or otherwise, including but not limited to theuse or misuse of the User Manuals, the interruption or failure of theIntermediary Service, the EDI System, machines or transmission linescontributory thereto, or any other failures whether or not attributable tohuman error.
 
10.   Termination
 
i.         The use of the EDI System by the parties may be terminated (withoutprejudice to the continuing application of the remaining clauses of theseTerms of Business) by one party giving to the other not less than three (3)months notice or otherwise automatically upon termination of the Contractbetween the parties, whereupon the transmission of any message, notice orinformation between the parties shall revert to the existing manual or otheragreed system.
 
ii.       Notwithstanding the termination of the use of the EDI System for anyreason:-
 
a)             Each of the parties shall complete and/or implement any action required byanyMessage sent prior to such termination; and
 
b)            The rights and obligations of each of the parties as to the maintenance of aMessage Data Log and the Security of Messages shall continue after suchtermination and the termination of the Contract
 
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