CARGO INSPECTION SERVICE-TERMS AND CONDITIONS OF SERVICE
Clause 1. General Provisions.
- Unless expressly otherwise agreed upon in writing, these conditions shall apply to all offers, tenders, assignments and contracts, as well as to the execution of assignments by Cargo Inspection Service (“CIS”), as well as to anything that might arise as a result of or in connection with those offers and/or assignments.
- Wherever the term ‘the principal’ is used in these conditions, this term shall include all principals who have collectively given one assignment, as well as his or their authorized representatives.
- If the principal refers to his own general conditions at the conclusion of the contract, CIS rejects those conditions, except in the case where CIS expressly declares in writing that it accepts those conditions.
Clause 2. Assignment.
An assignment shall only relate to the matter specified in it; consequences for any other matter cannot be attached to it.
Clause 3. Agreement of assignment /Contract.
- The contract shall have been concluded only after the principal has received a written acknowledgement of the assignment from CIS in which a specification is given of the object or loss incident in question, unless the principal himself has given an adequately clearly described assignment in writing.
- Alterations in the contract shall be binding only if they have been confirmed and/or agreed to in writing by CIS.
Clause 4. Obligations on the part of CIS.
CIS shall carry out the assignment accepted by it to the best of its knowledge and ability, accurately and impartially, as to be expected from an unbiased consultant/adjuster/surveyor and intermediary.
Clause 5. Experts.
- Exceptionally, and if and inasmuch as deemed necessary by CIS for the proper execute on of its assignment, they shall be entitled to obtain the assistance of one or more experts respectively third parties.
- Inasmuch as this is customary, the experts shall be appointed by CIS only after consultations with and with the written permission of the principal. The fees of these experts shall be chargeable to the principal.
Clause 6. Confidentiality.
- CIS is bound to observe secrecy towards third parties in respect of all information brought to or having come to its knowledge in connection with the assignment, as well as in respect of the contents of its report to the principal; all this unless the proper execution of the assignment requires the appointment of one or more experts by CIS.
- If CIS has appointed one or more experts, secrecy as referred to in paragraph 1 of this clause shall be imposed upon these expert(s) by CIS.
- The principal shall deal with all reports and documents received from CIS strictly confidentially and with the greatest possible care.
Clause 7. Conditions for the execution of an assignment.
The principal shall ensure that the assignment can take place under conditions that are reasonably considered necessary by the nature of the assignment.
Clause 8. Information furnished by the principal.
- Upon giving the assignment, or as soon as possible afterwards, the principal shall furnish CIS with all data and information required for the proper execution of the assignment. If so required by CIS, the principal shall, in particular, furnish written information to CIS in the manner specified by CIS.
- CIS must be able to assume that the information received is correct and complete. If CIS and/or the experts appointed by CIS as referred to in clause 5 sustain damage and/or loss in consequence of incorrectness and/or incompleteness of that information, the principal shall be liable to indemnify the injured party/parties for that damage and/or loss.
Clause 9. Premature termination.
- CIS shall be entitled to terminate, for urgent reason of its own, the further execution of the already accepted assignment, without being bound to indemnify damage and/or loss possibly sustained by the principal in consequence of it, and under production of a verbal or written (this at the option of CIS) report to the principal about the activities already carried out.
- The principal shall indemnify CIS for the expenses already incurred and for the activities already carried out, with respect to which the stipulations of clause 13 shall apply.
Clause 10. Termination and annulment.
- CIS is entitled to terminate its activities at instant notice and to annul the not yet executed part of the contract by means of a written statement to the principal, without any judicial interposition being required, and without prejudice to its right to compensation of expenses, damage and/or loss and interest: a. If the principal is declared bankrupt, assigns his property to his creditors, applies for a moratorium or if his property is fully or partly placed under attachment or if he proceeds to the partial or complete liquidation of his business. b. If the principal dies or is put in ward or, should the principal be a legal entity, if a resolution for dissolution is taken. c. In case of attachment of whatever nature. d. If the principal fails to meet any obligation incumbent on him by virtue of the law or of these conditions. e. If the principal fails to pay an invoiced amount or part thereof within the prescribed time, or fails to meet one or more of his obligations towards CIS. f. If the principal proceeds to the cessation or conveyance of his business or an important part thereof, including the transfer of his business to a company to be formed, or if he changes the aims and objects of his business. g. Generally in all those cases where, after the conclusion of the contract, CIS learns of circumstances which give it good grounds to fear that the principal will not meet his obligations.
- If the principal meets, after all, his obligations towards CIS after the occurrence of one or more of the aforementioned cases, for which reason CIS has terminated its activities, CIS shall be obliged only to report verbally or in writing (this at the option of CIS) about the activities already carried out.
- In the cases mentioned in paragraph 1, CIS also has the right, at its option, to postpone the compliance with its obligations until the sum due, inclusive of any interest and expenses, has been received in full.
Clause 11. Reports.
- In conclusion of the execution of the assignment, CIS shall submit a written report to the principal describing its findings and the condition and/or quality of the object and/or purpose of the assignment.
- Whenever this is deemed necessary by CIS or agreed between parties, CIS shall submit an interim report to the principal.
Clause 12. Termination and retention duty.
- The activities of CIS shall end (except in case of premature termination as described in clause 10) with the submission of the final report relating to the assignment accepted by CIS.
- CIS shall retain all data, correspondence, documents and such-like records that have a bearing on the acceptance and the execution of the assignment for a period of one year after the submission of the report. The documents could be kept in paper or electronically at the discretion of the CIS. Samples drawn for analysis in our labs will be disposed after a 30-day period.
Clause 13. Payment.
- Unless otherwise agreed in writing, payment shall be made, without any deductions, by deposit into or remittance by wire or by other means to the bank account specified by CIS within 30 days after the invoice date. The settlement date mentioned on the bank’s statement of the account is the determining one and shall thus be deemed to be the date of payment.
- CIS has the right to demand at all times advance payment, cash payment or security for the payment.
- Each payment made by the principal shall serve in the first place to pay off any interest due by him, as well as the collecting charges and/or accounting costs incurred by CIS and shall then be deducted from the oldest outstanding debt.
- If one of the circumstances specified in clause 10 paragraph 1 occurs, the principal shall be legally in default by the mere occurrence of one of the aforementioned circumstances. In that case all debts due to CIS by the principal shall mature immediately.
Clause 14. Interest and costs.
- If the term of payment is exceeded, the principal shall be legally in default and CIS shall be entitled to charge to the principal, as from the invoice date, an interest of 1.0% per month or, if this should be higher, the statutory interest; part of a month shall be deemed to be a full month.
- In case of non-payment or late payment or non-observance of any of the principal’s other obligations, all collecting charges resulting from the non-payment or non-observance, both judicial and extra-judicial, shall be pay-able by the principal to CIS, in addition to the invoice amount and the interest. The extrajudicial collecting charges shall amount to at least 15% of the amount due by the principal, inclusive of the aforementioned interest, with a minimum of USD 300, and they shall be due in all cases in which CIS has engaged the services of a third party for the collection. The mere engagement of a third party is proof of the extent of and the principal’s liability to payment of the extrajudicial collecting charges, without CIS being obliged to produce evidence that such costs have actually been incurred.
Clause 15. Liability.
- CIS shall never be liable towards the principal if the assignment complies with the provisions of clause 2 as well as clause 4; this subject to the further provisions of this clause and those of clause 16.
- Except for liability on the part of CIS by virtue of imperative legal stipulations and generally accepted rules of reasonableness and fairness, CIS shall not be liable for, and thus never be bound to, indemnify mediate or immediate damage and/or loss of what-ever nature, sustained directly or indirectly, including business interruption loss in respect of movable or immovable property, or by persons both at the principal’s and at third parties in consequence of: a. Improper conditions, as referred to in clause 7, and incorrect and/or incomplete information, as referred to in clause 8. b. Incorrect and or incomplete information as referred to in clause 8, more specifically where information asked for by CIS is concerned, inasmuch as it has reasonably not been possible for CIS to witness the circumstances in order to obtain the in-formation in question. c. Activities not carried out by CIS, inasmuch as it has in reason not been necessary for CIS, by virtue of the provisions of clause 2 and of clause 4, to carry out those activities. d. Errors and/or delays resulting from the incorrect operation of equipment used by CIS in the execution of its assignment, unless the principal proves satisfactorily that CIS has been negligent in the care of that equipment. This exclusion applies both if the incorrect operation referred to is due to the failure or mal-functioning of the power supply and/or other outside causes affecting the equipment, the prevention of which is not within the control of CIS, and if it is due to defects to the equipment itself, including software. e. The non-completion or late completion of the report. f. The operations and activities of the experts appointed within the scope of clause 5 of these general conditions.
- CIS shall not be liable either for damage and/or loss caused to equipment and other objects placed at its disposal by or on behalf of the principal.
- The principal shall protect CIS against claims from third parties in respect of damage to equipment and other objects placed at its disposal by or on behalf of the principal for the execution of the activities by CIS, as well as in respect of damage and/or loss to objects to be inspected.
- CIS shall never be liable for indirect damage and/or loss.
Clause 16. Limitation of liability and time bar.
- Any liability on the part of CIS shall be limited in all cases to the amount of the fee and expenses charged or to be charged by CIS to the principal, but shall never be in excess of the amount paid out in the case in question under the professional liability insurance of CIS. Any concurrence of assignments shall in this connection be deemed to be one single case.
- Any claims against CIS shall be barred by limitation one year after the date of submission of the report to the principal.
Clause 17. Indemnity.
The principal shall indemnify CIS against all claims of third parties, both in respect of the execution of the assignment and in respect of the report issued by CIS.
Clause 18. Applicable law and disputes.
- All offers, tenders, assignments and contracts, as well as the execution of assignments by CIS, shall be governed by the laws of the State of New Jersey, United States of America.
- All disputes, both of factual and of legal nature, arising out of or connected with the contract to which these conditions apply, including disputes that are deemed to be disputes by only one of the parties, shall be settled by arbitration, in conformity with the rules of the local arbitrators society.
- This arbitration clause does not eliminate the right of parties to apply, in cases of urgency, to district court for summary proceedings.
- This arbitration clause does not eliminate either the right of CIS to apply to the competent civil judge demanding payment of an invoice and the interest and collecting charges related with it, in case the term of payment of an invoice in accordance with clauses 13 and 14 is exceeded, in which connection the only competent civil judge is the one of the court of civil judicature of Trenton, New Jersey, United States of America.
- The right of CIS to bring the dispute before the district court or the civil judge who is competent in accordance with the normal competence regulations, is left intact by the provisions of paragraphs 4 and 5 of this clause.