Business Terms & Conditions

Terms & Conditions
Registered Company Number: 5387022
Definitions

1. In these Conditions “SMS ” means Southern Maritime Services Limited and unless
a contrary meaning is given:-

1.1. “Authorised Person” means SMS’s Managing or other Director from
time to time or any person specifically authorised in writing by one of them.

1.2. “Container” means any inter-modal freight container whether or not
conforming to ISO Standards.

1.3. “Contract” means the contract for the provision of Services by SMS.

1.4. “Inspect” or “Inspected” means a cursory, external visual inspection
done in the available light for any obvious defects.

1.5. “Goods” means any cargo, baggage or merchandise whatsoever
whether or not within a Container.

1.6. “Services” means the services agreed to be provided by SMS in
writing at the beginning of this agreement and shall not include any
additional services agreed from time to time between SMS and the User
unless such additional services are agreed by SMS in accordance with
clause 2.5 below.

1.7. “Ship” means any vessel in respect of which SMS provides, or is to
provide, Services.

1.8. “User” means any person, firm or corporation to or for whom or in
respect of whom SMS is to provide Services and shall include the shipper,
receiver, consignor, consignee, holder of documents of title (including
ship’s agents, forwarding agents and hauliers), owner or handler of Goods,
registered ship owner, ship manager, line operator and charterer including
their respective employees, agents and sub-contractors.

1.9. “Docks” and “Docks Premises” shall have the same meanings as in
the general regulations and conditions currently in force upon which
services and accommodation are provided at or within the dock at which
SMS provides the Services to the User;

1.10. Words in the singular shall include the plural and vice versa.

1.11. Any reference to any statute or statutory provision shall be deemed
to include any amendment, replacement or re-enactment thereof for the
time being in force and to include any by-laws, statutory instruments, rules,
regulations, orders, notices, directions, consents or permissions (together
with any conditions attaching to the foregoing) made thereunder.

2. Basis of Contract
2.1. All Users, Goods, Containers and Ships are subject to these
conditions. The contractual terms between SMS and the User are contained
exclusively within these conditions and in no circumstances will SMS be
bound by any purported addition to, or variation of these conditions, whether oral or in writing, unless any such addition or variation is signed on behalf of SMS by an Authorised Person.

2.2. SMS’s employees, agents and sub-contractors are not authorised to
make representations unless confirmed by an Authorised Person in writing.
The User acknowledges that it does not rely on any such representation not
so confirmed.

2.3. SMS may perform Services by its employees, agents or
sub-contractors.

2.4. The terms of any SMS quotation shall be valid for 30 days from the
date of the quotation form. Any extension to this must be agreed in writing
by an Authorised Person.

2.5. Any service additionally requested by the User which was not
included within the Services at the beginning of this agreement shall be
undertaken at the entire discretion of SMS on these conditions or on such
other terms as may be agreed in writing between the user and an
authorised person.

2.6. The benefit of these conditions shall apply in relation to any act or
default whatsoever of any employee, agent or sub-contractor of SMS . No
User shall proceed against any such employee, agent or sub-contractor in
respect of such act or default and shall indemnify SMS in respect of any
liability SCH may incur arising from the User not complying with such
requirement.

3. Price and Payment
3.1. The price for the Services shall be as set out in the SMS quotation
and (if applicable) the Contract. The price is exclusive of VAT which shall be
due at the rate ruling on the date of the relevant invoice. If there is any
conflict between the terms of the SMS quotation and the terms of the
Contract the Contract shall prevail.

3.2. Payment shall be made to SMS within 28 days of the invoice date.

3.3. The Late Payment of Commercial Debts (Interest) Act 1998 will apply
to all payments due under the Contract.

4. User’s Obligations

4.1. The User shall comply with and be bound by all statutes, statutory
instruments, rules, regulations, orders, notices, directions, consents or
permissions including (without limitation) those relating to health and
safety and dock operations from time to time in force and the conditions of
any applicable regulatory or statutory body.

4.2. The User shall provide to SMS in writing, prior to arrival of the Goods
within the Docks:-

4.2.1. sufficient details of the Goods to enable SMS to identify them,
details of all hazardous features and actual or potential hazards
involved in handling the Goods, any special lifting required for the Goods, any stowage, storage or delivery requirements for the Goods, and any other information with which anyone providing the
Services might reasonably expect to be provided;

4.2.2. where Goods are to be unloaded from a Ship, instructions as to the
onward transport forwarding or dispatch of the Goods;

4.2.3. where appropriate, instructions in relation to any activity to be
undertaken in respect of the Goods while at the Docks

4.2.4. and shall further provide to SMS notification in writing of any change
to such details, instructions and/or information which arises during
the provision of the Services.

4.3. The User shall immediately upon arrival of the Goods at the Docks
provide SMS with evidence in writing of their arrival and allow SMS to
Inspect the Goods.

4.4. The User warrants that all information provided as required under
condition 4.2 was accurate at the time it was provided to SMS and
continues to be accurate throughout the period during which SMS provide
the Services.

4.5. Notification required under clauses 4.2 and 4.3 shall be made by the
User to the e-mail address specified in SMS’s quotation or to such other
e-mail address as SMS may specify from time-to-time.

4.6. The User is responsible for checking, or arranging the checking of,
the state and condition of the Goods at the time the Goods are loaded onto
or unloaded from a Ship (as the case may be).

4.7. If the User requires secure or special storage at the Docks for the
Goods, or any of them, the User shall make all arrangements for secure or
special storage with the owner or operator of the Docks, shall clearly
identify the Goods for which secure or special storage has been arranged
and provide SMS with written details of all such arrangements.

4.8. SMS shall not be obliged to comply with any instructions given
pursuant to clause 4.2.3 unless SMS has agreed in writing prior to the
arrival of the Goods within the Docks to carry out such instructions.

4.9. If the User requires any externally hired plant or equipment or in the
opinion of SMS externally hired plant or equipment will be required to
perform the Services SMS may request that the User shall contract directly
with the owner to hire the equipment. In the event that SMS contract
directly with the owner for the hire of the plant and equipment SMS s
liability shall be limited as set out in clause 6.9.

5. User’s Warranties

5.1. The User warrants to SMS that:-

5.2. all Goods are properly packed, labelled and if stuffed in Containers
are properly stowed and secured therein;5.3. all Goods, packages, cartons, drums, pallets and Containers are fit for
their intended purpose and are in a fit and proper condition to be handled
or otherwise dealt with in the normal course of business by the equipment
and operational procedures employed by SMS;

5.4. all Containers and Goods comply with and all hazardous or
potentially hazardous Goods are labelled in accordance with all applicable
laws, orders, regulations, codes of practice or requirements of Government,
Customs and Excise, municipal or other authorities.

5.5. all Goods and Containers are insured to their full replacement value.

6. SMS Liability

6.1. The following provisions set out the entire financial liability of SMS
(including any liability for the acts or omissions of its employees, agents
and sub-contractors) to the User in respect of:-

6.1.1. any breach of these Conditions; and
6.1.2. any representation, statement or tortious act or omission, including
negligence, arising under or in connection with SMS’s performance
of the Services.

6.2. All warranties, conditions and other terms implied by statute or
common law (save for the conditions implied by section 12 of the Sale of
Goods Act 1979) are, to the fullest extent permitted by law, excluded from
the Contract.

6.3. Nothing in these conditions excludes or limits the liability of SMS for
death or personal injury caused by SMS’s negligence, or fraudulent
misrepresentation.

6.4. SMS shall not be responsible for any loss, damage, liability, costs
and/or expenses suffered or incurred by the User or any loss, damage or
deterioration to the Goods:

6.4.1. prior to written evidence of the Goods arrival on the Docks being
delivered to SMS and SMS having Inspected the Goods in
accordance with clause 4.3; and/or

6.4.2. where goods are delivered outside SMS’s normal working hours and
working areas at the Docks, or in circumstances where SMS has
instructed that Goods should not be delivered on certain dates or at
certain times

6.5. SMS shall be under no obligation to receive evidence of arrival of
Goods at the Docks or Inspect Goods outside SMS’s hours of normal
business at the Docks.

6.6. Subject to conditions 6.2 and 6.3, SMS, its employees, agents or
sub-contractors shall be liable for any fault or negligence on their part
resulting in physical loss or damage subject to the following limits for any
one incident or series of incidents arising out of one event:-

6.6.1. £5,000,000 in respect of damage to a Ship, including its gear.6.6.2. £150,000 in respect of loss of or damage to any Container.

6.6.3. £2.50 per kilo with a maximum limit of £150,000 in respect of loss
or damage to any Goods(but not to exceed in any event the liability
of the User with respect thereto under the relevant Bill of Lading or
other contract of carriage) and only to the extent that such loss or
damage exceeds £100.

6.7. Subject to conditions 6.2 and 6.3 SMS shall not be liable to the User
for any loss of profit, loss of business, depletion of goodwill or any indirect
or consequential loss or damage, costs, expenses or claims for
consequential compensation whatsoever (howsoever caused) which arise
out of or in connection with SMS’s provision of the Services.

6.8. SMS (including its employees, agents and sub-contractors) is not
responsible for any loss, damage, liability, costs and/or expenses suffered
or incurred by the User or any loss, damage or deterioration to Goods by
reason of any matter not within the control of SMS in the performance of
Services including (without limitation) any loss, damage, liability, costs
and/or expenses suffered or incurred by the User arising out of or in
connection with:-

6.8.1. defects in or inadequacy of any equipment not owned or leased by
SMS which is used by SMS in connection with the provision of
Services;

6.8.2. faulty slinging or the improper loading of any Goods or luggage by
persons other than SMS its employees, agents or sub-contractors;

6.8.3. any equipment or load colliding with any part of a Ship or any
equipment of a Ship resulting from the drifting or movement of the
Ship or any part of its equipment howsoever caused;

6.8.4. the Ship having been improperly or insecurely moored;

6.8.5. using lifting points and/or lifting equipment specified by the User.

6.9. SMS’s liability for loss damage costs and/or expenses suffered or
incurred by the User or any loss damage or deterioration to Goods by
reason of any defect in or failure of or unavailability of any equipment
leased by SMS and which is used by SMS in connection with the provision of
the Services shall be limited to the liability which the owner or lessor of the
equipment owes to SMS.

6.10. SMS (including its employees, agents and sub-contractors) is not
responsible for any loss, damage, liability, costs and/or expenses suffered
or incurred by the User or any loss, damage or deterioration to Goods or
baggage arising out of or in connection with:-

6.10.1. SMS operating under the direct supervision or on the express
instructions of the User;

6.10.2. any act, omission, neglect or the fault of any person not employed
by or under contract to SMS;6.10.3. any misleading, ambiguous or inadequate orders or particulars
given by any person to SMS;

6.10.4. any inadequate or incorrect address or destination information for
the Goods, or any imperfect, illegible, misleading, ambiguous,
defective or incomplete labelling of any Goods or baggage;

6.10.5. any errors by SMS, its employees, agents or sub-contractors in the
sorting or selecting of any Goods or baggage or the separating of
damaged from sound Goods or baggage except where (subject to
clause 4.7) such errors are due to the failure of SMS, its employees
agents or sub-contractors to follow written instructions regarding
such sorting, selecting or separating;
failure by the User to comply with any of these conditions;

6.10.6. any leakage, loss of weight or measure that may be sustained
where the receptacle of any Goods or baggage is in a defective or
leaky condition, (except upon proof that the receptacle was in a
sound condition when delivered to SMS, that it was suitable to
contain the Goods, and that such defective or leaky condition was
negligently caused by SMS, its employees, agents or
sub-contractors);

6.10.7. fire;

6.10.8. vermin, moths, worms, weevils or insects;

6.10.9. natural causes (including, without limitation, weather conditions and
atmospheric effects);

6.10.10. want of proper packing or improper packing;

6.10.11. stowage or storage of Goods and baggage or Containers
contrary to SMS’s advice;

6.10.12. any deterioration of grain, seed or goods whatsoever through the
omission on the part of the User to give orders in writing to SMS to
turn or air them, or to take any other precautions in relation to
them;

6.10.13. movement or deviation or late arrival or departure of any Ship;

6.10.14. vermin, insects, fungal attack, rot or corrosion affecting Goods;

6.10.15. heat or cold, including heat within Goods and unintended
exposure to natural or artificial light;

6.10.16. improper or insufficient packing, marking, documentation or
labelling;

6.10.17. any act of SMS its servants or agents which, though deliberate,
are reasonably necessary for the safety or preservation of persons,
the Docks or any Goods;

6.10.18. late receipt of Customs Entry or Delivery or Landing Orders,
disputes in respect of documents or declarations made for entry
purposes by or on behalf of any person, delay in passing Customs Entries or obtaining clearance of any Goods or omission of
information from or a statement in any order to SMS relating to the
Goods or baggage;

6.10.19. theft or wilful damage unless proved by the User to have been
committed by the servants of SMS ;

6.10.20. inherent vice of the Goods;

6.10.21. any loading or discharging of any Goods or baggage during the
hours of darkness except that which resulted from the wilful
misconduct or negligence of SMS, its employees subcontractors or
agents;

6.10.22. any failure of or interruption to or delay caused by any electronic
systems used to send, receive or process documentation, including
(without limitation) loss of power supply, loss of network access,
breakdown of systems or act or omission of any Internet Service
Provider.

6.11. Where the Goods or any part of them are timber:

6.11.1. Users shall supply SMS with a specification of the timber prior to it
being landed, and deposit with SMS, immediately upon the arrival of
the ship at the Docks, any delivery order which SMS may be desired
to execute; and

6.11.2. SMS will not be liable for any loss or damage to the timber
howsoever caused including without limitation by fire, waste,
shrinkage, erroneous remeasurement of timber or any
misdescription of quality whether upon the instructions of the user
or otherwise.

6.12. SMS shall not in any event be responsible for any loss from, or
damage to, Goods unless s notified in writing of the nature and amount of
the claim made:-

6.12.1. in the case of damage, deficiency or partial loss, before the Goods
are removed from the Dock Premises (whether for import or export);
and

6.12.2. in the case of total loss or misdelivery of import Goods, within thirty
days of collection of the Goods from the Dock Premises;

6.12.3. in the case of total loss or misdelivery of export Goods to the Dock
Premises or where such Goods are due to be exported within 60
days of such delivery by the date of export, whichever is the
greater;

6.12.4. within seven days of the event giving rise to the claim in any other
case.

6.13. Any claim not made in accordance with the terms of this condition
shall be deemed to be waived, extinguished or absolutely barred.6.14. The User must satisfy itself as to the appropriateness and nature of any storage facility to be used for the Goods or baggage. SMS shall not in
any event be responsible for any loss, damage, liability or expenses caused
by or arising in connection with the deterioration of Goods or baggage
stored in accordance with the instructions of the User

7. SMS’s Rights

7.1. SMS reserves the right to postpone performance of Services if, in
SMS’s absolute discretion:-

7.1.1. additional or alternative resources, personnel or equipment are
required to carry out Services;

7.1.2. Containers or Goods are improperly or insufficiently packed or
labelled;

7.1.3. Containers or Goods are unsafe whether due to their inherent
nature, stowage or movement during transit;

7.1.4. the weather or light make the conditions for the provision of
Services unsafe or may cause damage or deterioration to Goods or
baggage.

Force Majeure

7.2. SMS reserves the right to defer the performance of the Services or to
cancel the Contract (without liability to the User) if it is prevented from or
delayed in the carrying on of its business or in the performance of Services
due to circumstances beyond the reasonable control of SMS including,
without limitation, acts of God, governmental actions, war or national
emergency, riot, civil commotion, fire (and acts to extinguish it), smoke,
ionising radiation, radioactive contamination, impact by aircraft or objects
dropped or falling from them, scarcity of labour, plant, machinery, fuel or
power, act or omission of any internet service provider, war, revolution, riot
or civil commotion, restrictions imposed directly or indirectly by HM
Government or any person, body or corporation acting under statutory
powers, explosion, flood, epidemic, lock-outs, strikes or other labour
disputes (whether or not relating to SMS’s workforce), or restraints or
delays affecting carriers or inability or delay in obtaining supplies of
adequate or suitable materials.

8. Disposal of Goods

8.1. Goods and Containers handled by SMS remaining on Dock Premises
or any other premises which SMS has been required to use on instructions
of the User or Portsmouth City Council may be removed, warehoused or
otherwise dealt with if they have not been removed from Dock Premises by
or on behalf of the User within thirty days of their delivery to the Dock
Premises. Such removal warehousing and dealing shall be at the entire risk
and expense of the User and SMS reserves the right to sell the Goods and
apply the proceeds to payment of all charges in connection with the Services provided under this Contract or any other contract between SMS and the User under which payment by the User is outstanding.

8.2. Without prejudice to condition 9.1 SMS may in its absolute discretion
dispose of:-

8.2.1. perishable goods which are not immediately collected on arrival at
the Dock Premises;

8.2.2. hazardous goods, or deal with them in such manner as would render
them harmless;

8.2.3. Goods and Containers which can not be delivered in accordance
with the instructions of the User for whatever reason provided that
SMS shall give at least twenty-one days written notice to the User
of its intention to dispose of such Goods and Containers.

9. SMS’s Lien

9.1. All Goods, baggage, Containers and documents of title to those
Goods and Containers in possession of SMS shall be subject to a particular
and general lien for all sums owed by the User to SMS on any account, and
unless payment or security is given within ten days of notice of the exercise
of the lien, SMS may sell the goods by auction or otherwise as it thinks fit
in its absolute discretion in satisfaction of its lien.

10. Application of Bill of Lading

10.1. The User shall include in its Bill of Lading a provision that SMS, its
employees, agents and sub-contractors shall have the benefit of any terms
in such Bill of Lading excluding or limiting the liability of the User in respect
of the Goods.

10.2. In any event SMS, as stevedore and/or sub-contractor, shall be
entitled to benefit from the provisions of any Bill of Lading (including all
defences and limitations of liability) to which Goods and/or Container or
Containers are subject as if SMS were a party thereto.

11. User Liability

11.1. The User undertakes that it will indemnify SMS against all
proceedings, costs, expenses, liabilities, injury, death, loss or damage
incurred or suffered by SMS arising out of:-

11.1.1. the User’s failure to comply with these conditions or the Contract;

11.1.2. all acts or omissions of the User.

11.2. The User further undertakes that it will indemnify and hold harmless
SMS against all proceedings, costs, expenses, liabilities, injury, death, loss
or damage incurred or suffered by SMS consequent upon any claim against
SMS by any third party arising out of the negligent provision of the
Services to be provided to the User (for example the owner of the Goods or
Ship or Container or vehicle) insofar as such costs, losses and liabilities
(when aggregated with any liability of SMS to the User arising from the same occurrence or circumstance) exceed the potential liability of SMS to
the User as limited by the terms of clause 6.

12. General

12.1. No waiver of any default or breach of these conditions by either party
shall be deemed to be a continuing waiver or a waiver of any other breach
or default no matter how similar.

12.2. These Conditions shall be governed by and interpreted in accordance
with English Law and the User submits to the non-exclusive jurisdiction of
the English Courts.

12.3. Any notice required to be given hereunder shall unless otherwise
specified be sufficiently given if sent by registered or recorded delivery post
or left at the principal or registered office for the time being of the party to
be served. Any such notice shall be deemed to be served at the time the
same is handed to or left at the address of the party to be served and if
served by post on the third day (not being a Sunday or Public Holiday)
following the day of posting.