Velebit Promet | Terms and Conditions

TERMS AND CONDITIONS

“Velebit – Promet d.o.o.”

(“General Terms and Conditions”)

IMPORTANT – PLEASE NOTE: by entering into a Contract with Velebit – Promet d.o.o. (the “Company”), the Customer acknowledges and agrees that the Carrier is not a common carrier and exclusively accepts goods for carriage upon the Conditions set out below. No Service Provider of the Carrier is permitted to alter or vary these Conditions in any way unless with the express written consent of an Authorised Person of the Company.

1. Definitions

In the Contract and these Conditions, the following words and phrases shall have the following meanings.

“Applicable Laws” means legislation, permissions, regulations, treaties, rules, directives, principles of common law, requirements, orders, or other instruments that are applicable with mandatory effect to any part of the Contract or its performance.

“Authorised Person” means an individual that is vested with the power and authority to execute the Contract on behalf of the Customer or the Company respectively.

“Carrier” means the Company and Service Providers of the Company.

“Conditions” means these general terms and conditions of the Company.

“Consignee” means the person or entity who shall receive the Consignment under the Contract.

“Consignment” means the good(s) that shall be carried by the Carrier pursuant to the Contract.

“Contract” means the contract of carriage between the Customer and the Company.

“Contract Price” means the price agreed between the Customer and the Company for the transportation of the Consignment under the Contract.

“Customer” means the person or company who enters into a Contract with the Company.

“Dangerous Goods” means items listed in the European Agreement Concerning the International Carriage of Dangerous Goods by Road or which represent a hazard or danger according to the judgment of the Carrier.

“Delivery Area” means an area that is in the proximity of the Point of Delivery where the Carrier may safely stay in the event of there being an impediment, in the Carrier’s sole discretion and whether permanent or temporary, to the Carrier accessing the Point of Delivery.

“Order” means the document recapping that Transit and/or other services are to be provided by the Carrier on the terms set forth therein.

“Permit” means permission issued by the relevant public authority for the purposes of the Transit.

“Point of Collection” means the location where Transit is intended to begin under the Contract.

“Point of Delivery” means the location where Transit is intended to end under the Contract.

“Sender” means the person that sends the Consignment.

“Service Providers” means any alternative carriers, sub-contractors, agents, servants, representatives, or employees, that are engaged by the Company to fulfil the Contract in whole or in part.

“Transit” means the intended carriage of the Consignment from the Point of Collection to the Point of Delivery.

“Vehicle” means the relevant vehicle(s) for the purpose of the Transit.

2. Interpretation

2.1 Any reference to the Contract shall include these Conditions which shall be considered incorporated into the Contract in accordance with Clause 3.

2.2 Where appropriate the singular includes the plural and vice versa, words importing one gender include all other genders and persons include companies and all other legal entities.

2.3 Any reference to a provision of any legislation is a reference to that provision as amended, extended or re-enacted by any subsequent legislation.

2.4 The headings in these Conditions are for convenience only and shall not affect their interpretation.

3. Application and scope of these conditions

3.1 By placing or accepting an Order, the Customer agrees that these Conditions shall apply to the Contract:

(a) to the exclusion of all other standard terms and conditions notwithstanding any attempt by the Customer to reject these Conditions or incorporate any alternative terms and conditions;

(b) notwithstanding the application of any Applicable Laws; and

3.2 The effect of any Applicable Laws on these Conditions and the Contract shall be limited to the following terms:

(a) Applicable Laws shall supplement rather than replace these Conditions;

(b) where permitted these Conditions shall prevail in the event of inconsistencies with Applicable Laws; and

(c) if any part of these Conditions is deemed unenforceable as a result of Applicable Laws, the Contract shall be modified to the minimum extent necessary to render the part enforceable, and if such modification is not possible, the relevant part shall be deemed deleted without further effect on the interpretation and enforceability of the rest of the Contract.

4. Collection of the consignment and performance of the transit

4.1 The Carrier shall collect the Consignment and perform the Transit in accordance with the Contract.

4.2 Subject to the terms of the Contract, the Carrier shall:

(a) present a Vehicle at the Point of Collection with the markings required by law or prescribed by the permit authority;

(b) enter any reservations on the consignment note which shall be binding on the Customer;

(d) mark the attachment points of the Vehicle;

(e) secure the Consignment pursuant to the loading and fastening plan;

(f) subject to Clause 6.4 below, provide usage of the equipment that is on the Vehicle at the Point of Collection;

(g) observe the terms and conditions of the Permit;

(h) use best efforts to perform the reasonable instructions of the Customer; and

(i) promptly inform the Customer of any delays or issues that could hinder the performance of the Contract.

4.3 At the reasonable request of the Customer, and if necessary at an additional cost, the Carrier may perform or provide for:

(a) a preliminary study of the Transit assessing its likely viability, costs and logistics;

(b) the permits and police supervision that are required for the Transit by law;

(c) reasonably requested additional equipment or auxiliary materials for the Transit and the return freight of such auxiliary materials;

(d) the covering of the Consignment; and

(e) additional insurance policies for the Transit.

5. Delivery of Consignment

5.1 Delivery of the Consignment shall occur when the Vehicle is at the Point of Delivery.

5.2 Notwithstanding Clause 5.1, if the Carrier cannot access the Point of Delivery safely or the instructions provided by the Customer are deemed, at the Carrier’s sole discretion, to be insufficient delivery shall be deemed to take place at the expiry of 24 hours from the Carrier’s notice to the Consignee or Customer of its arrival at the Delivery Area.

5.3 If the Carrier is unable for any reason to deliver a Consignment, or delivery has occurred under Clause 5.2, the Carrier shall have the right to sell the Consignment, subject to:

(a) the Carrier undertaking best efforts to give a minimum of 24 hours notice to the Customer or the Consignee that the Consignment will be sold within the time specified in the notice;

(b) the Carrier employing best efforts to obtain the reasonable value of the Consignment at the time of the sale; and

(c) the Carrier accounting to the Customer with the proceeds of the sale: less any sums that are due to the Carrier under the Contract and any expenses incurred in relation to the Consignment and its sale.

5.4 The Carrier’s compliance with this Clause 5 shall constitute the full discharge of the Carrier’s obligations under the Contract.

6. Liability of the carrier

6.1 The maximum liability of the Carrier for any breach of these Conditions or the Contract shall in any and all circumstances be limited to the lesser of:

(a) 10% of the Contract Price;

(b) the value of the lost or damaged goods within the Consignment; or

6.2 Without prejudice to the generality of the foregoing, the Carrier shall be under no liability to the Customer if the loading or unloading of the Consignment is carried out by special appliances such as cranes, slings, chains, forklifts, and other equipment, whether or not these have been provided by the Carrier.

6.3 The following types of loss or damage are excluded and will not under any circumstances result in any liability on the part of the Carrier:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use of, or corruption of, software, data, or information;

(f) loss of or damage to goodwill or reputation;

(g) indirect or consequential loss; and

(h) any fine imposed on the Customer.

6.4 The Carrier shall not be under any liability for loss caused by or to Dangerous Goods.

7. Obligations of the customer

7.1 The Customer shall pay the Carrier in accordance with the Contract and Clause 10.

7.2 [INSERT NUMBER] working days prior to the Vehicle arriving at the Point of Collection, the Customer shall provide the Carrier with written details of:

(a) all the relevant and requested details of the Consignment, including but not limited to its exact dimensions, weight, centre of gravity and lifting and lashing points, as may be necessary to enable the Carrier to determine and obtain the timely provision of all necessary materials, licences, permits and supervision;

(b) details of any Dangerous Goods; and

7.3 Subject to the terms of the Contract, the Customer will assume the obligation to perform, and the responsibility, liability, cost and risk for:

(a) the payment of any costs incurred in ascertaining or performing checks to ascertain the weight and quality of the goods;

(b) the necessary steps to facilitate the obtaining of all documents that are considered necessary by the Carrier for the safe, timely and lawful delivery of the Consignment;

(c) the safe and effective assembly and disassembly of the Consignment, in a manner that ensures the safety and integrity of the Consignment for the entirety of the Transit;

(d) the indication and marking of possible attachment points on the load as well as the hoisting eyes and centre of gravity;

(e) the Carrier’s convenient and safe access to the Point of Collection and Point of Delivery, which shall be accessible from roadways and of sound hardstanding ground;

(f) the timely presentation of the Consignment to the Carrier at the Point of Collection in the manner agreed in the Contract;

(g) the timely receipt of the Consignment at the Point of Delivery in the manner agreed in the Contract;

(h) the safe, efficient and timely loading and unloading of the Consignment;

(i) the supply and quality of any special appliances that would assist with loading or unloading, such as forklifts, cranes, slings, chains and other equipment;

(j) the supply and quality of any plant, labour, or special appliances, that may be required for the safe and efficient loading, carriage and unloading of the Consignment, other than those that are present on the Vehicle at the Point of Collection;

(k) where the Consignment contains Dangerous Goods, the safe preparation of such goods, including but not limited to ensuring the appropriate classifications, markings, packaging, labelling and documentation, in accordance with all Applicable Laws.

(l) implementing the necessary steps to ensure the safe and lawful loading, unloading, and carriage of a Consignment of Dangerous Goods;

(m) providing the Carrier with a signed proof of delivery of the Consignment from the Consignee; and

(n) arranging and paying for insurance policies as may be required under the Contract and at Clause 9.

7.4 The Customer shall:

(a) comply or arrange to comply with the payment obligations under the Contract and at Clause 10;

(b) comply or arrange to comply with the obligations at Clause 7.1, 7.2, and 7.3;

(c) provide or arrange to provide adequate and timely instructions to the Carrier to enable the safe, prompt, lawful and efficient loading, Transit and unloading of the Consignment; and

(d) provide or arrange to provide all reasonable assistance to address any issues that arise during the performance of the Contract.

7.5 The Customer hereby:

(a) guarantees the performance of any obligations that are specified to be the duty of the Sender or Consignee under the Contract or in any other contractual documents relating to the Consignment;

(b) accepts joint and several liability for any breach of any obligations that are specified to be the duty of the Sender or Consignee under the Contract or in any other contractual documents relating to the Consignment; and

(c) agrees to indemnify the Carrier for any losses (including consequential losses) that arise as a result of any failure on the part of the Sender or Consignee to perform any obligations under the Contract or in any other contractual documents relating to the Consignment.

8. Liability of the customer

8.1 The Consignment shall be at the sole risk of the Customer when it is not in Transit.

8.2 The Customer shall indemnify the Carrier against all claims, liabilities, losses, expenses, damages, interest or costs suffered by, awarded, or claimed against the Carrier as a result of:

(a) any negligence, fraud, or breach(es) of these Conditions and / or the Contract;

(b) any error, omission, misstatement or misrepresentation by the Customer, Consignee or Sender of the Consignment, or by any servant or agent of theirs;

(c) the Carrier’s compliance with any instructions issued under the Contract or the Customer, Sender, or Consignee’s changes to the agreed details of the loading, Transit, or unloading of the Consignment; and

(d) any breach, damage, or loss caused to property, person, infrastructure, or the environment in the performance of the Contract, unless caused by the gross negligence or wilful misconduct of the Carrier.

9. Insurance

9.1 Unless otherwise agreed in the Contract, the Customer warrants that during the Contract it shall maintain, or satisfy itself that the Sender and/or Consignee maintains, in force with a reputable insurer, insurance policies to cover:

(a) Cargo Insurance: that shall as a minimum cover any losses and/or damage to the Consignment during or as a result of its transportation by the Carrier; and

(b) Liability Insurance: that shall as a minimum cover third-party claims against the Customer, Consignee, Sender, or Carrier, that have arisen as a result of any losses and/or damage to property, persons, road infrastructure, and/or the environment, that may have been caused by, or related to, the Consignment, the condition of the Consignment, the description or preparation of the Consignment, and/or the transport of the Consignment, including but not limited to any negligence or failure(s) on the part of the Customer or Carrier to fulfil its obligations within these Conditions and/or the Contract, or otherwise; and

9.2 The Carrier advises that:

(a) it shall maintain a separate liability insurance policy to the Customer’s Liability Insurance at Clause 9.1(b), without giving any warranty or undertaking as to its details, cover or application to the Contract; and

(b) it shall not hold, arrange or maintain cargo insurance unless otherwise agreed in the Contract, pursuant to the specific request of Customer.

10. Payment Conditions

10.1 The Customer shall be obliged to pay to the Company net of bank charges:

(a) the agreed carriage fee;

(b) the additional costs referred to in Clause 4.3 of these Conditions;

(c) the costs resulting from work performed by the Carrier pursuant to any further instructions issued by the Customer, Sender, or Consignee;

(d) the cost of any delays in excess of 4 hours to the Transit time, including but not limited to, the cost of any deviation from the route required by the permit, where the Carrier considers the required route to have become unsafe, unavailable or closed; and

(e) any other reasonable expenses that are incurred by the Carrier in the performance of the Contract, save for those expenses that are expressly specified as being for the account of the Carrier in the Contract.

10.2 All amounts owed under Clause 10.1, these Conditions, and the Contract by the Customer, Consignee or Sender will be paid by the Customer net of bank charges within 7 days of invoicing by the Company.

10.3 If the Customer, Consignee or the Sender fails to pay any amount due in accordance with Clause 10.2, then compound interest shall accrue on the unpaid amounts from the due date until the date of actual payment at a rate of 8% per annum compounded on three monthly rests.

10.4 The Customer shall be liable to indemnify the Carrier for the entirety of the legal costs incurred in collecting any amounts due under the Contract.

10.5 It is expressly agreed by the parties that under no circumstances shall the Customer be entitled to set off claims against any amounts due to the Carrier pursuant to the terms of the Contract.

10.6 Irrespective of the provisions in Clause 10.2 above, the Carrier’s invoices shall become immediately due for payment, with the interest specified in Clause 10.3, in the event that:

(a) the Customer, Consignee or Sender is bankrupt or if a moratorium of payments has been granted to the Customer, Consignee, or Sender;

(b) the Customer, Consignee or Sender:

(i) seeks a voluntary agreement with its creditors;

(ii) defaults on the fulfilment of its obligations;

(iii) terminates the agreement pursuant to these Conditions; and

(iv) ceases to carry out its business or – in the case of a legal entity – is dissolved.

10.7 For the avoidance of doubt, where the Sender or Consignee are obliged to pay the Carrier any sums the Customer shall also be liable to perform that payment obligation.

11. Postponement and cancellation

11.1 The Customer shall be entitled to cancel or postpone the Contract by giving the Carrier notice of their intention to do so and by remitting the below cancellation and postponement fees to the Company in full, whereupon the postponement or cancellation of the Contract shall become valid:

(a) within 21 days of the loading date stipulated in the Contract (“Loading Date”): 25% of the price agreed for the Transit in the Contract (“Contract Price”);

(b) within 15 days of the Loading Date: 50% of the Contract Price;

(d) within 5 days of the Loading Date: 100% of the Contract Price.

(e) notwithstanding any postponement or cancellation in accordance with the above, the Customer shall indemnify the Carrier for any costs incurred by the Carrier in relation to the Contract prior to the notice of cancellation or postponement being received (permits, escorts, or similar).

11.2 A cancellation under Clause 11.1 shall have the effect of terminating the Contract.

12. Termination

12.1 The Company shall be entitled to terminate the Contract without any liability to the Customer by providing at least 7 days of notice prior to the Loading Date.

12.2 If the Customer breaches Clause 7.2 (a), (b), and (c) and notifies the Company prior to the Loading Date then the Company shall be entitled to modify the Contract Price or terminate the Contract. If the Customer fails to notify the Company prior to the Loading Date, then the Company may terminate the Contract and the Customer shall be liable to pay the full Contract Price.

12.3 The Company may request that the Customer remedies any breach of Clause 7, 9 or 10, within 72 hours. If the breach is not remedied within 72 hours, then the Company shall be entitled to terminate the Contract with immediate effect.

13. Lien

13.1 The Company shall have:

(a) a particular lien on the Consignment; and

(b) a general lien against the Customer, Sender and/or the Consignee for any sums unpaid on any invoice, account, or Contract whatsoever.

13.2 If such lien, whether particular or general, is not satisfied within a reasonable period of time in the sole discretion of the Company, then the Company may sell the Consignment, or any part thereof, and apply the proceeds of sale towards any sums unpaid by the Customer, Sender and/or the Consignee and any expenses incurred relating to the retention, insurance and/or sale of the Consignment, and shall, upon accounting to the Customer, Sender and/or Consignee for any balance remaining, be discharged from any, and all, liability in respect of the Consignment.

13.3 The Company may exercise its lien on its own behalf or as agent for any assignee of its invoices at any time and at any place at its sole discretion whether or not the sums have become payable in accordance with these Conditions and whether or not the contractually agreed carriage has been completed and these conditions shall continue to apply during the period of the exercise of this lien.

14. Force Majeure

14.1 The Company shall be entitled to suspend or terminate the Contract without any liability to the Customer, the Consignee, or the Sender, where the performance of any obligations has been prevented or delayed to any extent by:

(a) the Customer’s breach of contract;

(b) an act or omission of the Customer, Sender, and/or Consignee, their respective agents or any party that has an interest in the Consignment (including any breach by the Sender or Consignee of these Conditions);

(c) an act, omission or refusal of any relevant authority to issue any documents, licences, permits, and / or permissions as may be required by Applicable Laws for the purposes of the Transit;

(d) any issue with the Consignment including wastage, defects, deterioration, poor packaging, incorrect addressing or labelling, customs issues, or special handling requirements which were unknown to the Carrier;

(e) any acts of God, governments, authorities, protestors, police, labour unions, or quasi-governmental actions;

(f) failure of communications or computer system of a relevant network operator;

(g) any breakdown of machinery, unavailability of premises, issues with equipment or labour, road closures, weather, fire, explosion, civil disturbance, heavy traffic, road congestion, road accidents, vehicle breakdown, strike, military action, pandemic, or any other cause beyond the reasonable control of the Company; and

(h) without prejudice to the generality of the foregoing, any cause whatsoever beyond the control of the Company.

15. The Limits

15.1 The Carrier shall not be liable for:

(a) any claim relating to the Consignment, or the delivery, non-delivery, or misdelivery of the Consignment, unless the Customer notifies the Carrier of the claim within seven days of the date of delivery, or when delivery should have taken place under the terms of the Contract, and commences an action in accordance with Clause 21 within fourteen days of that same date; and

(b) any other claim howsoever arising, unless the claim is notified to the Carrier in writing within twenty-eight days of the commencement of the Transit, and the claim is made in accordance with Clause 21 within forty-two days of that same date.

16. Notice

Unless otherwise agreed in writing, notices given under the Contract shall be deemed validly served where such notice is communicated to an appropriate director, principal, partner, or other Authorised Person of the addressee company by email or letter.

17. Exclusion of the supply of goods and services act 1982

The Customer agrees that the application of Section 13 and Section 14 of the Supply of Goods and Services Act 1982 shall be excluded from the Contract.

18. Exclusion of the 1980 United Nations Convention on Contracts for the International sale of goods (CISG)

The Customer agrees that the application of the 11 April 1980 United Nations Convention on Contracts for The International Sale of Goods shall be excluded from the Contract.

19. Authority

The Customer warrants that they are either the owner of the Consignment or hold the authority to accept these Conditions on the owner’s behalf and that an Authorised Person shall sign the Contract.

20. Service Providers

The Company shall be entitled to use Service Providers for the purpose of fulfilling the Contract in whole or in part. Service Providers shall be deemed to perform all services under the Contract in accordance with Occupational health and safety, and environmental policy and Quality and business processes policy, and on the basis of these Conditions, and shall be entitled to rely on the terms, limitations, exclusions and indemnities of these Conditions, in the event of any disputes or claims.

21. Law and Jurisdiction

21.1 Where the Carrier and the Customer are all incorporated in Croatia and the Contract is limited to the transportation of the Consignment within Croatia then these Conditions are to be subject to Croatian law with the jurisdiction of the Court of Zagreb.

21.2 In all other circumstances, the Contract shall be governed by and construed in accordance with English law and, subject to Clause 21.3, any dispute arising out of or in connection with the Contract shall be subject to the exclusive jurisdiction of the English Courts

21.3 The Company may at its sole discretion elect to pursue any claims against the Customer in arbitration, in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced, with the condition that any choice of arbitrator must be conversant with and well versed in European haulage operations.

UNDER CONSTRUCTION