Terms and Conditions
The Customer’s attention is drawn to the Clauses hereof which exclude or limit the Company’s
liability and those which require the Customer to indemnify the Company in certain circumstances.
DEFINITIONS AND APPLICATIONS
[1]
In these conditions the following words shall have the following meanings:
Company
MPower International
Consignee
the Person to whom the goods are consigned
Customer
any Person at whose request or on whose behalf the Company undertakes any business or provides
advice, information or services
Direct Representative
the Company acting in the name of and on behalf of the Customer and/or Owner with H.M.
Revenue
and Customs (“HMRC”) as defined by Council Regulation 2193/92 or as amended
Goods
the cargo to which any business under these conditions relates
Person
natural person(s) or any body or bodies corporate
SDR
are Special Drawing Rights as defined by the International Monetary Fund
Transport Unit
packing case, pallets, container, trailer, tanker, or any other device used whatsoever for and in
connection with the carriage of Goods by land, sea or air
Owner
the Owner of the Goods or Transport Unit and any other Person who is or may become interested in
them
[2]
(A) Subject to sub-paragraph (B) below, all and any activities of the Company in the course of
business, whether gratuitous or not, are undertaken subject to these conditions.
(B) If any legislation, to include regulations and directives, is compulsorily applicable to any business
undertaken, these conditions shall, as regards such business, be read as subject to such legislation,
and nothing in these conditions shall be construed as a surrender by the Company of any of its rights
or immunities or as an increase of any of its responsibilities or liabilities under such legislation, and if
any part of these conditions be repugnant to such legislation to any extent, such part shall as regards
such business be overridden to that extent and no further.
[3]
The Customer warrants that he is either the Owner, or the authorised agent of the Owner and, also,
that he is accepting these conditions not only for himself, but also as agent for and on behalf of the
Owner.
THE COMPANY
[4]
(A) Subject to clauses 11 and 12 below, the Company shall be entitled to procure any or all of the
services as an agent, or, to provide those services as a principal.
(B) The Company reserves to itself full liberty as to the means, route and procedure to be followed in
the performance of any service provided in the course of business undertaken subject to these
conditions.
[5]
When the Company contracts as a principal for any services, it shall have full liberty to perform such
services itself, or, to subcontract on any terms whatsoever, the whole or any part of such services.
[6]
(A) When the Company acts as an agent on behalf of the Customer, the Company shall be entitled,
and the Customer hereby expressly authorises the Company, to enter into all and any contracts on
behalf of the Customer as may be necessary or desirable to fulfil the Customer’s instructions, and
whether such contracts are subject to the trading conditions of the parties with whom such contracts
are made, or otherwise.
(B) The Company shall, on demand by the Customer, provide evidence of any contract entered into
as agent for the Customer. Insofar as the Company may be in default of the obligation to provide
such evidence, it shall be deemed to have contracted with the Customer as a principal for the
performance of the Customer’s instructions.
[7]
In all and any dealings with HMRC for and on behalf of the Customer and/or Owner, the Company is
deemed to be appointed, and acts as, Direct Representative only.
[8]
(A) Subject to sub-clause (B) below, the Company:
• (i) has a general lien on all Goods and documents relating to Goods in its possession, custody
or control for all sums due at any time to the Company from the Customer and/or Owner on
any account whatsoever, whether relating to Goods belonging to, or services provided by or
on behalf of the Company to the Customer or Owner. Storage charges shall continue to
accrue on any Goods detained under lien;
• (ii) shall be entitled, on at least 28 days’ notice in writing to the Customer, to sell or dispose
of or deal with such Goods or documents as agent for, and at the expense of, the Customer
and apply the proceeds in or towards the payment of such sums;
• (iii) shall, upon accounting to the Customer for any balance remaining after payment of any
sum due to the Company, and for the cost of sale and/or disposal and/or dealing, be
discharged of any liability whatsoever in respect of the Goods or documents.
(B) When the Goods are liable to perish or deteriorate, the Company’s right to sell or dispose of or
deal with the Goods shall arise immediately upon any sum becoming due to the Company, subject
only to the Company taking reasonable steps to bring to the Customer’s attention its intention to sell
or dispose of the Goods before doing so.
[9]
The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and
other remunerations customarily retained by, or paid to, freight forwarders.
[10]
(A) Should the Customer, Consignee or Owner of the Goods fail to take delivery at the appointed
time and place when and where the company is entitled to deliver, the Company shall be entitled to
store the Goods, or any part thereof, at the sole risk of the Customer or Consignee or Owner,
whereupon the Company’s liability in respect of the Goods, or that part thereof, stored as aforesaid,
shall wholly cease. The Company’s liability, if any, in relation to such storage, shall be governed by
these conditions. All costs incurred by the Company as a result of the failure to take delivery shall be
deemed as freight earned, and such costs shall, upon demand, be paid by the Customer.
(B) The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale
or otherwise as may be reasonable in all the circumstances):
• (i) after at least 28 days notice in writing to the Customer, or (where the Customer cannot be
traced and reasonable efforts have been made to contact any parties who may reasonably be
supposed by the Company to have any interest in the Goods) without notice, any Goods
which have been held by the Company for 90 days and which cannot be delivered as
instructed; and
• (ii) without prior notice, any Goods which have perished, deteriorated, or altered, or are in
immediate prospect of doing so in a manner which has caused or may reasonably be
expected to cause loss or damage to the Company, or third parties, or to contravene any
applicable laws or regulations.
[11]
(A) No insurance will be effected except upon express instructions given in writing by the Customer
and accepted in writing by the Company, and all insurances effected by the Company are subject to
the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk.
Unless otherwise agreed in writing, the Company shall not be under any obligation to effect a
separate insurance on the goods, but may declare it on any open or general policy held by the
Company.
(B) Insofar as the Company agrees to effect insurance, the Company acts solely as agent for the
Customer, and the limits of liability under clause 26(A) (ii) of these conditions shall not apply to the
Company’s obligations under clause 11.
[12]
(A) Except under special arrangements previously made in writing by an officer of the Company so
authorised, or made pursuant to or under the terms of a printed document signed by the Company,
any instructions relating to the delivery or release of the Goods in specified circumstances (such as,
but not limited to, against payment or against surrender of a particular document) are accepted by
the Company, where the Company has to engage third parties to effect compliance with the
instructions, only as agents for the Customer.
(B) Despite the acceptance by the Company of instructions from the Customer to collect freight,
duties, charges, dues, or other expenses from the Consignee, or any other Person, on receipt of
evidence of proper demand by the Company, and, in the absence of evidence of payment (for
whatever reason) by such Consignee, or other Person, the Customer shall remain responsible for
such freight, duties, charges, dues, or other expenses.
(C) The Company shall not be under any liability in respect of such arrangements as are referred to
under sub-clause (A) and (B) hereof save where such arrangements are made in writing, and in any
event, the Company’s liability in respect of the performance of, or arranging the performance of,
such instructions shall not exceed the limits set out in clause 26(A) (ii) of these conditions.
[13]
Advice and information, in whatever form it may be given, is provided by the Company for the
Customer only. The Customer shall indemnify the Company against all loss and damage suffered as a
consequence of passing such advice or information on to any third party.
[14]
Without prior agreement in writing by an officer of the Company so authorised, the Company will
not accept or deal with Goods that require special handling regarding carriage, handling, or security
whether owing to their thief attractive nature or otherwise including, but not limited to bullion, coin,
precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, pets, plants.
Should any Customer nevertheless deliver any such goods to the Company, or cause the Company to
handle or deal with any such goods, otherwise than under such prior agreement, the Company shall
have no liability whatsoever for or in connection with the goods, howsoever arising.
[15]
Except pursuant to instructions previously received in writing and accepted in writing by the
Company, the Company will not accept or deal with Goods of a dangerous or damaging nature, nor
with Goods likely to harbour or encourage vermin or other pests, nor with Goods liable to taint or
affect other Goods. If such Goods are accepted pursuant to a special arrangement, but, thereafter,
and in the opinion of the Company, constitute a risk to other goods, property, life or health, the
Company shall, where reasonably practicable, contact the Customer in order to require him to
remove or otherwise deal with the goods, but reserves the right, in any event, to do so at the
expense of the Customer.
[16]
Where there is a choice of rates according to the extent or degree of the liability assumed by the
Company and/or third parties, no declaration of value will be made and/or treated as having been
made except under special arrangements previously made in writing by an officer of the Company so
authorised as referred to in clause 26(D).
THE CUSTOMER
[17]
(A) The Customer warrants:
• (i) that the description and particulars of any Goods or information furnished, or services
required, by or on behalf of the Customer are full and accurate, and
• (ii) that any Transport Unit and/or equipment supplied by the Customer in relation to the
performance of any requested service is fit for purpose, and
(B) that all Goods have been properly and sufficiently prepared, packed, stowed, labelled and/or
marked, and that the preparation, packing, storage, labelling and marking are appropriate to any
operations or transactions affecting the Goods and the characteristics of the Goods.
(C) that where the Company receives the Goods from the Customer already stowed in or on a
Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage to the
intended destination of the Goods loaded therein, or thereon, and
(D) that where the Company provides the Transport Unit, on loading by the Customer, the Transport
Unit is in good condition, and is suitable for the carriage to the intended destination of the Goods
loaded therein, or thereon.
[18]
Without prejudice to any rights under clause 15, where the Customer delivers to the Company, or
causes the Company to deal with or handle Goods of a dangerous or damaging nature, or Goods
likely to harbour or encourage vermin or other pests, or Goods liable to taint or affect other goods,
whether declared to the Company or not, he shall be liable for all loss or damage arising in
connection with such Goods, and shall indemnify the Company against all penalties, claims,
damages, costs and expenses whatsoever arising in connection therewith, and the Goods may be
dealt with in such manner as the Company, or any other person in whose custody they may be at any
relevant time, shall think fit.
[19]
The Customer undertakes that no claim shall be made against any director, servant, or employee of
the Company which imposes, or attempts to impose, upon them any liability in connection with any
services which are the subject of these conditions, and, if any such claim should nevertheless be
made, to indemnify the Company against all consequences thereof.
[20]
The Customer shall save harmless and keep the Company indemnified from and against:
(A) all liability, loss, damage, costs and expenses whatsoever (including, without prejudice to the
generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever
nature levied by any authority in relation to the Goods) arising out of the Company acting in
accordance with the Customer’s instructions, or arising from any breach by the Customer of any
warranty contained in these conditions, or from the negligence of the Customer, and
(B) without derogation from sub-clause (A) above, any liability assumed, or incurred by the Company
when, by reason of carrying out the Customer’s instructions, the Company has become liable to any
other party, and
(C) all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of
the liability of the Company under the terms of these conditions, regardless of whether such claims,
costs, and/or demands arise from, or in connection with, the breach of contract, negligence or
breach of duty of the Company, its servants, sub-contractors or agents, and
(D) any claims of a general average nature which may be made on the Company.
[21]
(A) The Customer shall pay to the Company in cash, or as otherwise agreed, all sums when due,
immediately and without reduction or deferment on account of any claim, counterclaim or set-off.
(B) The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to all sums
due from the Customer
[22]
Where liability arises in respect of claims of a general average nature in connection with the Goods,
the Customer shall promptly provide security to the Company, or to any other party designated by
the Company, in a form acceptable to the Company.
LIABILITY AND LIMITATION
[23]
The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgment.
[24]
The Company shall be relieved of liability for any loss or damage if, and to the extent that, such loss
or damage is caused by:
(A) strike, lock-out, stoppage or restraint of labour, the consequences of which the Company is
unable to avoid by the exercise of reasonable diligence; or
(B) any cause or event which the Company is unable to avoid, and the consequences of which the
company is unable to prevent by the exercise of reasonable diligence.
[25]
Except under special arrangements previously made in writing by an officer of the Company so
authorised, the Company accepts no responsibility with regard to any failure to adhere to agreed
departure or arrival dates of Goods.
[26]
(A) Subject to clause 2(B) and 11(B) above and sub-clause (D) below, the Company’s liability
howsoever arising and, notwithstanding that the cause of loss or damage be unexplained, shall not
exceed
• (i) in the case of claims for loss or damage to Goods:
o (a) the value of any loss or damage, or
o (b) a sum at the rate of 2 SDR per kilo of the gross weight of any Goods lost or
damaged whichever shall be the lower.
• (ii) subject to (iii) below, in the case of all other claims:
o (a) the value of the subject Goods of the relevant transaction between the Company
and its Customer, or
o (b) where the weight can be defined, a sum calculated at the rate of two SDR per kilo
of the gross weight of the subject Goods of the said transaction, or
o (c) 75,000 SDR in respect of any one transaction, whichever shall be the least.
• (iii) in the case of an error and/or omission, or a series of errors and/or omissions which are
repetitions of or represent the continuation of an original error, and/or omission
o (a) the loss incurred, or
o (b) 75,000 SDR in the aggregate of any one trading year commencing from the time
of the making of the original error, and/or omission, whichever shall be the lower.
For the purposes of clause
For the purposes of clause 26 (A), the value of the Goods shall be their value when they were, or
should have been, shipped. The value of SDR shall be calculated as at the date when the claim is
received by the Company in writing.
(B) Subject to clause 2(B) above and sub-clause (D) below, the Company’s liability for loss or damage
as a result of failure to deliver, or arrange delivery of goods, in a reasonable time, or (where there is a
special arrangement under Clause 25) to adhere to agreed departure or arrival dates, shall not in any
circumstances whatever exceed a sum equal to twice the amount of the Company’s charges in
respect of the relevant contract.
(C) Save in respect of such loss or damage as is referred to at sub-clause (B), and subject to
clause 2(B) above and sub-clause (D) below, the Company shall not in any circumstances whatsoever
be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market, or
the consequences of delay or deviation, however caused.
(D) On express instructions in writing declaring the commodity and its value, received from the
Customer and accepted by the Company, the Company may accept liability in excess of the limits set
out in sub-clauses (A) to (C) above upon the Customer agreeing to pay the Company’s additional
charges for accepting such increased liability. Details of the Company’s additional charges will be
provided upon request.
[27]
(A) Any claim by the Customer against the Company arising in respect of any service provided for the
Customer, or which the Company has undertaken to provide, shall be made in writing and notified to
the Company within 14 days of the date upon which the Customer became, or ought reasonably to
have become, aware of any event or occurrence alleged to give rise to such claim, and any claim not
made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where
the Customer can show that it was impossible for him to comply with this time limit, and that he has
made the claim as soon as it was reasonably possible for him to do so.
(B) Notwithstanding the provisions of sub-paragraph (A) above, the Company shall in any event be
discharged of all liability whatsoever and howsoever arising in respect of any service provided for the
Customer, or which the Company has undertaken to provide, unless suit be brought and written
notice thereof given to the Company within nine months from the date of the event or occurrence
alleged to give rise to a cause of action against the Company.
JURISDICTION AND LAW
[28]
These conditions and any act or contract to which they apply shall be governed by English law and
any dispute arising out of any act or contract to which these Conditions apply shall be subject to the
exclusive jurisdiction of the English courts.