GENERAL TERMS AND CONDITIONS - CABEZA GROUP
These General Terms and Conditions apply to all and any relationships with any of the companies belonging to Cabeza Group (hereinafter, “Cabeza” or "Company").
These General Terms and Conditions are available to customers either at Cabeza’s offices or in its website: www.cabeza.com.
The Customer expressly accepts that all and any services contracted with Cabeza shall be subject to the present General Terms and Conditions.
1. DEFINITIONS
1.1.- Company: Any of Cabeza Group’s entities that provides to the Customer any shipment arrangement services –as defined here below–, whether for a fee or gratuitously.
1.2.- Customer: Any natural or legal person that procures from the Company any shipment arrangement services, as well as any such person to whom the estimate, quote, correspondence or e-mails are addressed, and also the contractual and/or actual shipper, the sender, the consignee, the contractual and/or actual receiver, the owner of the goods and any other person who is interested in them, or any of the brokers, agents or servants of any such person.
1.3.- Shipment arrangement services: The shipment arrangement services subject to these General Terms and Conditions are all and any services requested by the Customer and undertaken by the Company –regardless of whether the same are performed by the Company or subcontracted with third parties–, and stated on the relevant Company’s Services offer or Quotation note. The Company shall be entitled to provide those services as a principal, or to procure them as an agent on behalf of the Customer.
1.4.- Services provided as a principal: All and any services that the Company provides by its own means, as well as those whose performance directly undertakes –even if effectively performed by third parties–, shall be regarded as provided as a principal. The services whose performance is directly undertaken by the Company are those for which the Company issues a document of transport (house bill of lading/seaway bill/airway bill, CMR, etc.) where the Company appears as carrier.
1.5.- Services procured as an agent of the Customer: All other services not included in the above definition shall be regarded as procured by the Company as an agent of the Customer, regardless of the manner in which they are quoted and/or invoiced to the Customer.
2. SCOPE OF APPLICATION
These General Terms and Conditions apply to all and any shipment arrangement services, as defined in Clause 1, provided by the Company.
These General Terms and Conditions are incorporated to all Services offers and/or Quotation notes, and shall govern the legal relationships between the Company and the Customer. By accepting the Services offers and/or Quotation notes, the Customer, either expressly or tacitly, the Customer fully accepts the application of the present General Terms and Conditions.
3. CUSTOMER’S OBLIGATIONS
3.1.- The Customer, either directly or via its agents and/or subcontracted organizations, warrants:
(1) That the information furnished about any goods, regarding their characteristics, description, marks, number, quantity, weight and measurement, is full and accurate;
(2)That the description and particulars of any services required are full and accurate.
In any case, the Customer shall keep the Company indemnified from and against all and any losses and damages that the Company might sustain by reason of the Customer’s failure to furnish full and accurate information on the above points. Furthermore, the Company reserves the right to make, at the time the goods are received, such reservations and protests that it deems appropriate or necessary.
3.2.- The Customer shall inform, in advance, to the Company about the inflammable, explosive or dangerous nature of any goods to be carried, stored or handled, as well as about the exceptional precautions that should be adopted. The Customer is solely responsible for complying with any applicable laws governing the packaging, documentation, marks, documents of transport and any other requirements for carriage of the above-mentioned goods, and shall save the Company harmless from any liability vis-à-vis third parties for failure to comply with such laws.
In any case, the Customer shall be liable for any loss or damage to the goods, as well as for any damages, costs and expenses caused, either directly or indirectly, to the Company arising out in connection with their carriage, storage or handling. The Company is entitled to, prior to delivery to the Customer, either discharge, destroy or neutralise the goods and neither the Customer nor the receiver shall have any rights to damages or compensation for those acts.
3.3.- The Customer’s warranties and obligations set out in the previous paragraphs shall extend, for shipments to the USA, to the requirements for pre-arrival information and documentation applicable to the imports into that country that the authorities may impose at any time. The Customer is responsible for the accuracy of such information and/or documentation and for furnishing it in a timely manner. The Customer shall be liable for any damages, costs and expenses caused by its failure to comply with such obligations, and shall save the Company harmless of all and any consequences of failing to furnish to the USA customs the required information within the prescribed deadline and/or of any defects found on the import documentation.
In any event, the Customer shall be liable for any damages caused to the Company, who shall be entitled to be reimbursed of any costs and expenses thereby incurred. Furthermore, the Company shall have no liability whatsoever if, because of the circumstances, the goods need to be discharged, destroyed or neutralised; the Customer and/or receiver being entitled to no compensation.
3.4.- Save any express provision to the contrary, the Customer shall be responsible for packing, conditioning, stuffing and stowing the goods for its carriage. Consequently, any loss, damage, expenses and costs arising out of the Customer’s failure to properly fulfil such obligations –including, without limitation, inadequate or defective packaging and/or stowing– shall be for Customer’s account. The Customer shall also be liable for any damages caused to any handling equipments or means of transport, and for any expenses and costs caused for the Customer’s failure to comply with the above obligations.
3.5.- The Customer warrants that any transport unit, container or equipment supplied by the Customer, its agents or servants, for performance of any requested services is fit for purpose. The Company shall have no liability whatsoever for any loss or damage arising out in connection with any defects or malfunctioning of those transport units, containers or equipments.
3.6.- Where the transport unit, container or equipment is supplied by the Company, or by a third party subcontracted by the Company, the Customer must inspect such transport unit, container or equipment in order to verify that the same is suitable for the intended carriage. The Company shall have no liability whatsoever for any loss or damage to the goods, not for any other damages whatsoever caused by reason of the transport unit, container or equipment not being suitable or being defective, or for incorrect setting of any refrigeration controls thereof, provided that the said unsuitability or defective condition would have been discovered, or should have reasonably been discovered, by the Customer upon the inspection carried out prior or at the time of stuffing the transport unit, container or equipment.
3.7.- The Customer shall receive the goods at agreed place at the time where the goods are placed at the Customer’s disposal by the Company or any third party subcontracted for their carriage and/or handling. Any expenses whatsoever arising out from the Customer’s delay or failure to receive the goods shall be for the Customer’s account.
3.8.- The Customer shall indemnify, defend and save the Company harmless from and against:
- (1) Any liability, loss, damage, costs and other expenses whatsoever (including, without prejudice to the generality of the foregoing, any duties, taxes, imposts, levies, sanctions, penalties, storage costs, demurrage, etc.) arising out of the Company acting is accordance with the Customer’s instructions, or arising from any breach by the Customer of any warranty and/or obligation contained in the present General Terms and Conditions or from the negligence of the Customer;
- (2) Without prejudice to the above provision, any liability assumed or incurred by the Company, where, by reason of the Company’s carrying out the Customer’s instructions, or as a consequence of any act or omission of the Customer, the Company has become liable to any other party;
- (3) Any sum exceeding the Company’s limits of liability in accordance with these General Terms and Conditions;
- (4) Any claims of a general average nature that may be made on the Company.
3.9.- The Customer shall pay the price of the contracted price in accordance with the special provisions agreed in each case. In the absence of any such agreement, such payment shall be made in cash immediately against the Company’s invoice, a per the tariffs in force at the time of the contract and in accordance with the limits therein provided. In the absence of such tariffs, the market or usual price at the place of contract shall be applied.
Any additional expenses which may arise as a consequence of events or circumstances occurred after the date of the contract or, where applicable, the date of shipment, shall be for the Customer’s account, provided that the said expenses are supported by adequate evidence and have not been incurred by reason of fault or neglect on any of the persons involved in the provision of the contracted services.
In no event shall payment of the any of the Company’s outstanding invoice –including the Company’s invoices for costs and expenses– be withhold on account of any claim or counter-claim against the Company arising out of alleged loss or damage to the goods or of any other nature whatsoever.
3.10.- In case of general average, the Customer shall promptly provide security to the Company, or to any other person designated by the Company, in a form acceptable to the Company or to the adjuster.
4. COMPANY’S OBLIGATIONS
Provisions governing the services provided by the Company as agent
4.1.- When the Company acts as an agent of the Customer (in accordance with the provisions of Clause 1.5), the Company shall, on behalf of the Customer, enter into such contracts and acts which are necessary for the goods’ carriage and handling. The Company shall provide to the Customer with evidence of the contract(s) entered into on behalf of the Customer.
Provisions governing the services provided by the Company as principal
4.2.- When the Company acts as principal (in accordance with the provisions of Clause 1.4), the Company shall organise, with full liberty, the carriage and handling of the goods in the most appropriate manner and with due diligence. The Company may subcontract the whole o any part of the contracted services with third parties. In the latter case, the relationships between the Client and the Company shall be subject to the terms and conditions governing the relevant document of transport covering each phase of transport, or each service provided by the third party (bill of lading, seaway bill, CMR, airway bill, etc.).
Common provisions
4.3.- The Company does not promise or undertake to load, carry, or discharge the goods on or by any particular vessel, airplane or any other conveyance, nor by any specific date or time. Advertised routes and sailing and arrival times are only estimated routes and times, and such schedules may be advanced, delayed or cancelled without notice. In no event shall the Company be liable for consequential losses or damages to the goods, or any other damage of whatsoever nature, caused by any delay in scheduled departures or arrivals of any vessel, airplane or any or other conveyances used to transport the goods or for any other delay occurred during carriage.
4.4.- The Company will not effect any insurance against loss or damage to the goods during handling, storage or carriage, except pursuant to and in accordance with the clearly stated instructions given in writing by the Customer and provided that the relevant premium is paid. In such event, the Company shall enter into the relevant insurance contracts on behalf of the Customer, acting as agent for the Customer.
4.5.- In all and any dealings with maritime, port, health, tax and custom authorities, the Company is deemed to be appointed and acts as agent and representative for the Customer only.
4.6.- In all and any dealings with maritime, port, health, tax and custom authorities, the Company is deemed to be appointed and acts as agent and representative for the Customer only.
- (1)After at least 21 days’ notice 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 any notice– the Company may sell or dispose of any goods which have been held by the Company for at least 60 days after the time they were placed at the Customer’s disposal;
- (2) Without prior notice, for any goods which have perished or deteriorated, or are in immediate prospect of doing so in a manner that 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.
5. EXEMPTION AND LIMITATION FROM LIABILITY
5.1.- The Company shall have no liability whatsoever for loss or damage to the goods where the Company acts as an agent for the Customer and has transmitted to the third parties with whom the Company has contracted in such quality the transport instructions received from the Customer.
5.2.- In any other cases, i.e. where the Company acts as principal vis-à-vis the Customer, the Company shall be liable to the Customer only for any such loss or damage to the goods caused by the Company’s failure to fulfil its obligations under the contract. In no event shall the Company be liable for loss or damage to the goods arising out from any event occurred prior to the time the Company receives the goods or after the time the goods are placed at the Customer’s or consignee’s disposal or of any of its authorised representatives or of the carrier which will transport the goods up to their final destination.
5.3.- The Company shall have no liability whatsoever in relation with any loss or damage to the goods, except in case such loss or damage arises out while the goods are under the Company’s custody and control.
5.4.- The Company shall have no liability whatsoever in the event the goods are carried by the Customer or its representative.
5.5.- The Company shall have no liability whatsoever for the consequences of any loading or unloading operations which are not performed by the Company.
5.6.- The Company shall have no liability whatsoever for any loss, damage or expense incurred by reason of any insufficiency or inaccuracy on the goods’ number, quantity, content, weight, measurement, marks, characteristics or description.
5.7.- The Company shall have no liability whatsoever for any loss or damage to refrigerated goods that are not properly pre-cooled to the adequate temperature for carriage or that are stuffed before the refrigerated container has been properly pre-cooled to the adequate temperature.
5.8.- Save for the cases and to the extent that the governing law excludes liability in all or any of the following circumstances, the Company shall not be liable for loss or damage to the goods arising out in connection with any of the following circumstances:
- i. Fault or neglect of the Customer or its authorised representative.
- ii. Defective, insufficient or non-existent packing, marks or stowing, provided that the Company was not responsible for performing such packing, marking or stowing. Likewise, the Company shall not be liable for the consequences of packaging when the Company cannot verify the goods’ content.
- iii. War, riots, civil commotions, insurrections, arrest or restraint of princes, rulers or people or seizure under legal process.
- iv. Strikes or lockouts or stoppage or restraint of labour from whatever cause.
- v. Damage due to nuclear energy.
- vi. Natural disasters.
- vii. Force majeure and act of God.
- viii. Theft.
- ix. Wastage in bulk of weight or any other loss or damage arising from inherent defect, quality or vice of the goods.
- x. Any other grounds for exemption provided for under the international conventions or other legal provisions in force.
5.9.- The Company shall not be liable for loss or damage to the goods, nor for any other damage of whatsoever nature, caused by any delay in scheduled departures or arrivals of any vessel, airplane or any or other conveyances used to transport the goods or by any other delay occurred during carriage
5.10.- In no event shall the Company be liable for indirect, consequential, exemplary or punitive damages sustained by the Customer, such as, but not limited to, loss of profit, loss of market, penalties, depreciation loss, exchange rate fluctuations, increased dues or taxes, or any other.
5.11.- In the absence of any international convention, national law or regulation compulsorily applicable, the Company’s liability for loss or damage to the goods shall be limited to the price paid by the Customer for the services rendered by the Company.
5.12.- In no event shall the Company’s liability exceed the liability, vis-à-vis the Company and/or the Customer, of the actual carrier or other operator that performs the services contracted, in accordance with the laws and international conventions in force.
5.13.- The Company may avail itself of the benefit of any of any exemption and/or limitation of liability and of any protest and claim time bars applicable to the actual carriers or any other operators subcontracted to perform the services requested by the Customer.
5.14.- These exemptions and limitations of liability shall apply to any claims against the Company, regardless of such claim being made in contract, strict liability or tort.
6. CLAIMS
6.1.- At the time of delivery, the Customer and/or the receivers shall verify the goods’ state and condition, and that their quantity, number and weight is in conformity with the details contained in the document of transport. The Customer shall immediately notify the Company of any apparent loss or damage to the goods and shall make the appropriate protest or reservations in writing as per the terms and conditions of the relevant CMR, bill of lading or other document of transport, or, in the absence of such terms, as per the provisions of the applicable laws and international conventions. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred.
6.2.- Where the loss or damage is not apparent, the Customer and/or receiver shall notify the Company of such loss or damage within 14 days of the date upon which the Customer and/or receiver became, or ought reasonably to have become, aware of any the alleged occurrence. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred.
6.3.- Without prejudice to the provisions of the above paragraphs, and absent any law or regulation compulsorily applicable which provides otherwise, the Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any service provided for the Customer unless suit be brought within nine months from the date of the delivery of the goods or the date when the goods should have been delivered.
7. LIEN AND RIGHT DISPOSAL
The Company shall have a lien on the goods for all sums due from the Customer to the Company for the services contracted and for any other expenses that the Company might have incurred while rendering such services, in accordance with the applicable laws an regulations. All and any storage costs, demurrage or other expense of whatsoever nature incurred by the Company while the goods remain detained under thee lien shall be for the Customer’s account.
If, after 21 days since the date that any of the sums owed to the Company becomes due, the Customer’s payment obligation remains unfulfilled, the Company shall be entitled to sell or dispose of the goods, as an agent for the Customer and at the Customer expense, and apply the proceeds in or towards the payment of such sums, including any costs and expenses incurred by reason of the lien and sale or disposal of the goods. Any balance remaining after payment of all sums due to the Company shall be made available to the Customer.
When the goods are of perishable nature, the above right of disposal shall arise immediately upon any sum owed to the Company becoming due. But exercise of such right of disposal shall require prior notice to the Customer.
8. LAW AND JURISDICTION
The contract for shipment arrangement services and these General Terms and Conditions shall be governed by and construed in accordance English law.
Any dispute arising out of or in relation with the contracted shipment arrangement services and these General Terms and Conditions shall be referred to LMAA (London Maritime Arbitrators Association) arbitration. The arbitration shall be conducted in accordance with the LMAA Terms current at the time when the arbitration proceedings are commenced.
Notwithstanding the preceding paragraphs, where the claim submitted or brought by the Customer arises out of an event occurred during a stage of transport performed by a third party, the Customer, expressly waiving any other jurisdiction –and in particular the arbitration provision of the precedent paragraph– agrees to submit to the jurisdiction or arbitration provided for under the relevant document of transport (bill of lading, seaway bill, CMR, airway bill, etc.). In this case, the laws provided for under the relevant document of transport –or, absent such a provision, the lex fori– shall apply.
9. SEPARABILITY
If any terms or provision hereof or any part of any term or provision shall be null and void, invalid or unenforceable, it shall be such to that extent, but no further and such circumstance shall not affect the validity or enforceability of any other term or provision hereof.
* This is an English translation of the “Condiciones Generales Grupo Cabeza”. In case of conflict between the Spanish original version and this English translation, the Spanish version shall prevail.
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