General Terms of contract

Terms of contract

 

MULTIMODAL CARRIAGE OPERATOR

GENERAL TERMS AND CONDITIONS OF BUSINESS

 

  1. APPLICATION AND ACCEPTANCE

    1. Unless the parties expressly and specifically otherwise agree, the following General Conditions shall apply to all carriage services requested of NIPPON EXPRESS DE ESPAÑA, S.A. (hereinafter, the OPERATOR) by any person or entity (hereinafter, the CUSTOMER).

    2. If the OPERATOR provides mere carriage intermediation services, in the name and on behalf of the CUSTOMER, then only conditions 5.1 and 10 shall apply, as well as any other that, by its nature, is legally compatible with such intermediation service, without prejudice to any specific agreement eventually entered into between the parties.

    3. The CUSTOMER acknowledges having read and accepted each of these General Conditions, which are published on the OPERATOR's website (www.nipponexpress.es).

2. - CUSTOMER’S OBLIGATIONS

2.1. - SUPPLY OF GOODS

2.1.1.- Declaration.- The CUSTOMER (including, where appropriate, its agents or dependents), guarantees to the OPERATOR the accuracy of the Goods declaration regarding its description, characteristics, number, marks, quantity, weight, and volume together with any other characteristics if its own.

2.1.2. –Exclusion.- the carriage of packages or items with unlawful contents is expressly forbidden. The carriage of packages or items which may be subject to specific requirements demanding a prior inspection (such as weapons, funds or securities, toxic, flammable or dangerous materials, livestock, human remains etc) is also forbidden.  

2.1.3.- Remarks. - The OPERATOR reserves the right to make, at the time of reception of the goods, the remarks that he deems convenient or necessary.

2.1.4. - Disproportion. - In case of disproportion between weight and volume, the quotation or valuation of the carriage will be made using the following table:

  • Air (National & International)                            1m3 = 167kg.
  • Ocean Cargo                                                    1m3 = 1,000kg.            
  • Road Cargo (National & International)             1m3 = 333kg.

* Note: in road carriage it is rounded up to 1,000 kg to the next tenth, more than 1,000 kg to the next hundred.

2.1.5. - Special and Extraordinary Shipments. - For shipments of special characteristics (in excess of what is indicated in the above table), the OPERATOR must be consulted beforehand. Special conditions and rates will apply.

2.1.6. - Packaging. - (a) Unless otherwise instructed by the CUSTOMER or agreed between the parties, the CUSTOMER and/or his agents or dependents, will be responsible for the proper packaging of the goods and for the goods to be perfectly prepared and conditioned, according to their nature, so as to sustain the carriage, including the disposal of the goods in cages or any other alternative means. This guarantee also extends to the lashing material provided by the CUSTOMER.

(b). - In this regard, the OPERATOR reserves its right to make, at the time the goods are received , the appropriate remarks regarding the packaging or preparation and conditioning of the goods for carriage.

(c) The OPERATOR reserves the right, at all times, to accept or not a package and consequently to provide the service due to insufficiency of the packaging material for carriage, because it seems abnormal, or for any other other reasons not included in the order.

(d) In case of rejection of the package by the OPERATOR due to insufficiency of the packaging material and subsequent insistence of the CUSTOMER on the shipment (despite the rejection), the CUSTOMER will keep the OPERATOR fully indemnified from any liability that may arise from penalties, damages or failures that may occur in the goods and/or to third parties (including legal costs). The provisions of this section shall not apply to perishable or dangerous goods, where the OPERATOR may directly reject any package despite the CUSTOMER's insistence.

2.1.7.- Perishable Goods.- In the case of maritime carriage of perishable goods, the OPERATOR shall only be responsible for the damages caused by the delay in the delivery in accordance with the legal regime established in articles 280 et seq. of the 14/2014 Law, of July 24, on Maritime Navigation. Regarding the rest of carriages, the rules indicated in the following General Condition 5 will apply.

2.1.8. - Dangerous Goods. - The CUSTOMER is obliged to inform the OPERATOR in advance about goods of flammable, explosive or dangerous nature of any type/shape of the goods being carried, stored or manipulated, by supplying all the information required in each case by the relevant regulation in force; The CUSTOMER shall also advise the OPERATOR of any special and exceptional precautions that should be taken to carry the dangerous goods. The provisions of article 232 of Law 14/2014, of July 24, on Maritime Navigation, the national regulations on the Safe Carriage of Dangerous Goods by air and the Technical Instructions for Safe Carriage of Dangerous Goods by Air (ICAO), on the International Carriage of Dangerous Goods by Road (ADR), and on the Carriage of Dangerous Goods by Rail (RID-COTIF).

2.1.9. - Carriage Instructions.- Whenever the nature of the goods requires it, the CUSTOMER shall be obliged to provide the OPERATOR with whatever instructions and recommendations are necessary and relevant for the proper carriage, storage or handling of the goods.

2.1.10.- Customs information.- The CUSTOMER (or, if applicable, its agents or dependents) will be obliged to inform and instruct the OPERATOR about the customs formalities, providing as many documents as are necessary for the customs clearance of the goods, as well as for the issuance of any type of para-customs certificate, whenever this is required by the CUSTOMER. The CUSTOMER will be the only responsible for all damages, loss and costs resulting from non-compliance with customs formalities due to a breach of the obligation assumed in this section.

2.2. - PAYMENT OF THE RATE.-

The CUSTOMER undertakes to pay the price of the services contracted with the OPERATOR according to the economic conditions, terms of delivery and form mutually agreed between the parties in each specific operation.

3. - OBLIGATIONS OF THE OPERATOR.-

3.1. - Due diligence.- The OPERATOR undertakes to organize in its own discretion the carriage, handling, carrying and storage of the goods entrusted to him, in the most appropriate way and using due diligence, as well as in accordance with the instructions received from the CUSTOMER.

3.2. - Selection of Subcontractors.- For the above purposes, the OPERATOR will be able to select and subcontract third parties, which will be considered as independent agents of the OPERATOR.

3.3. - Multimodal Carriage.- Whenever he deems it appropriate and in his sole discretion, the OPERATOR may issue a combined or multimodal carriage document, which shall be governed by the provisions set out in article 267 of Law 14/2014, of July 24, on Maritime Navigation.

3.4. - Carriage on Deck.- The CUSTOMER expressly allows and accepts the shipment of the goods on deck, provided that such shipment will be at the CUSTOMER’s own cost and risk.

3.5. - Schedules.- The OPERATOR is not obliged to provide services outside the weekly period between Monday and Friday, this also applies to holidays in the place of destination.

4. - CUSTOMER LIABILITY.-

The CUSTOMER will indemnify the OPERATOR for all costs, damages and loss of any kind, including administrative sanctions of any kind, which the OPERATOR may be eventually liable as a result of:

(a) Incorrect or insufficient information relating to the goods object of the carriage service; this liability includes the inaccuracy and insufficiency of: (1) the designation of the nature of the goods; (2) number of packages; (3) of their particular marks or numbers; (4) of the quantity of goods expressed in gross weight or otherwise and (5) of the volume; (6) the inaccuracy, insufficiency or omission of the declaration of the flammable, explosive or dangerous nature of the goods, and any other nature relevant to its carriage and/or its correct handling and/or lashing.

(b) Incorrect or insufficient information regarding clearance or customs formalities; this liability includes the inaccuracy, insufficiency or lack of the necessary documents for the process of customs formalities, as well as para-customs certificates, without the OPERATOR or his subcontractors being obliged to examine whether such documents and information are accurate or sufficient, unless otherwise agreed.

(c) Defects or inadequacy of the packaging or preparation of the goods, as well as any faults or defects latent or inherent in the same.

(d) Supply to the OPERATOR of insufficient or inadequate lashing material or elements in attention to the type of the goods carried.

(e) Any inaccuracy, inadequacy or omission in relation to the indications or instructions supplied by the CUSTOMER to the OPERATOR.

(f) Any circumstance arising out of or in connection with the condition of the goods or their stowage and lashing on board the ship, which may prejudice the safety of the sea or air carriage or the road or rail carriage. In this case, in addition, the goods may be unloaded and stored on behalf of the CUSTOMER, the latter being liable for expenses incurred by the OPERATOR or its subcontractors as well as any damages caused thereof.

(g) Any negligent breach of the obligations assumed under these general terms and conditions.

5. - LIABILITY OF THE OPERATOR.-

5.1. - Liability as simple Intermediary. - Liability Regime applicable when the OPERATOR intervenes as a mere intermediary between the CUSTOMER and the carrier, in the name and on behalf of the CUSTOMER, without assuming any responsibility in relation to the success of any carriage operation: the regimen provided for in the Commercial Code regarding the ordinary commission agent acting in the name and on behalf of his principal will apply..

5.2.- Responsibility as a Carrier.- Liability regime applicable when the OPERATOR intervenes as "Carriage Commissioner", "Freight Forwarder" or assumes the the success of the carriage operation:

5.2.1. - National and international maritime carriage: the regime provided for in articles 277 to 286 (and correlatives) of Law 14/2014, of July 24, on Maritime Navigation shall apply.

5.2.2. - Road carriage at the national level: Law 15/2009 on the Contract of Road Carriage of Goods (LCTTM), Law 16/1987, of July 30, on Road Carriage Management (LOTT) and its Development Regulation (ROTT), according to the version that in each case is effective, shall apply.

5.2.3. - International road carriage: the Convention on the Contract for the International Carriage of Goods by Road (CMR), done in Geneva on 19 May 1956, will apply.

5.2.4. - Rail carriage at the national level: Law 15/2009 of the Land Carriage Contract (LCTTM), Law 39/2003, of 17 November, on the Rail Sector, and its Regulations for the development and the provisions of the LOTT, which are effective in each case.

5.2.5. - International rail carriage: the International Convention on International Carriage by Rail, done at Geneva on May 9, 1980 and Appendix B of the Convention ("CIM-COTIF Convention") in force at any time shall apply.

5.2.6. - Air carriage, both domestic and international: the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, shall apply.

5.2.7. - In the case of combined or multimodal carriage, each phase, tranche or mode of carriage shall be governed by its respective international law or convention in accordance with the above paragraphs and when it is not possible to determine the phase of the journey in which the damage occurred in accordance with the provisions of the LCTTM.

5.3. - Liability of the OPERATOR for the provision of handling services: regarding other operations and/or complementary services to the carriage: in the maritime area shall the regime provided in articles 329 to 338 of Law 14/2014, of 24 of July, of Maritime Navigation shall apply, and in the rest of areas (air, rail, road)the United Nations Convention on Liability of the Businessmen of Terminals of Carriage in the International Trade will apply.

5.4. - Exclusion of consequential or indirect damages. - The OPERATOR in no event shall be liable to the CUSTOMER for claims for consequential damages, including, but not limited to loss of profits, loss of customers, loss of stock, penalty clauses, fines, losses due to depreciation, currency exchange fluctuations, taxes or duties increased by the Authorities, or any claim other claim whatsoever other than that derived from the direct damages or material losses suffered by the goods.

5.5. - Right of recourse.- The OPERATOR reserves its right to commence a recourse actions against any third party responsible for the damage or loss suffered by the goods. The CUSTOMER agrees to cooperate with the OPERATOR in any recovery actions that the latter may commence against third parties. Specifically, the CUSTOMER undertakes to provide all documentation requested for this purpose and to cooperate in any proceedings against third parties by all means that the OPERATOR deems necessary.

5.6.- Limitation of liability.- Regardless of the applicable limitation of liability, according to the type of carriage, in accordance with the International Norms and Conventions mentioned in the above paragraphs, the OPERATOR may, in relation to maritime carriage, invoke the general limitation of liability provided for in the International Convention on Limitation of Liability for Maritime Claims, done in London on 19 November 1976 and amended by the Protocol of 3 May 1996, as provided in Article 392 of Law 14/2014, of July 24, on Maritime Navigation.

5.7. - Force Majeure. - Notwithstanding the causes of exemption from liability set out in the International Regulations and Conventions mentioned in the above paragraphs, the OPERATOR shall be exempted from any liability to the CUSTOMER provided that the loss or damage suffered by the goods results from a Force Majeure event, as provided by Article 1.105 of the Spanish Civil Code.

6. - INSURANCE.-

The OPERATOR will not insure any losses or damages that may be caused to the goods during their handling, storage or carriage, unless the CUSTOMER specifically instructs them in writing. In this case, the OPERATOR will proceed to purchase insurance cover for damages for the benefit of the CUSTOMER acting as Policyholder with the types of cover that the client requests according to the possibilities available in the market.

7. - PROTESTS AND CLAIMS.-

7.1.- Apparent damages.- At the moment of delivery of the goods, the CUSTOMER, the consignee, or the authorized representative, must verify the conditions in which they are, as well as verify that the quantity, number and weight of the packages correspond to the data recorded in the carriage documentation, and must inform the OPERATOR immediately in writing of any apparent defect or loss in any part in writing in the carriage documentation issued for the delivery of the goods, and always within the next business day to the day of delivery.

7.2. - Non-apparent damages. - If the loss or damage is not apparent, the protest must be issued within three working days following the delivery.

7.3.- Regime of Protests.- In any case the regime of protests and remarks will be the one that is determined, for each type or mode of carriage, in the International Regulations and Conventions that are indicated in the above General Condition 5.

7.4.- Time bar.- The limitation period or, if applicable, expiration period to initiate any action against the OPERATOR shall be the one provided in each case by the applicable international Norms and Conventions that are indicated in the above General Condition 5.

7.5.- In no case shall the payment of invoices due to the OPERATOR, including costs and expenses, be retained as a result of claims or legal proceedings arising from protests or reservations made by the CUSTOMER under this clause.

8. – RATES/ FEES.-

8.1.- The price for the carriage and other contracted services will be fixed according to the rates that the OPERATOR has in force at the time of entering into the contract or, when appropriate, in accordance with the rates that may be agreed in each case between the CUSTOMER and the OPERATOR, according to the contracted service.

8.2.- The additional expenses incurred as a result of events or circumstances after the date of contracting, are to be borne by the CUSTOMER, provided they are duly justified and their production is not due to the fault or negligence of the OPERATOR.

8.3.- The payment of the price, as well as any expenses, shall be made in cash on the due date of the corresponding invoice issued by the OPERATOR, except for special conditions previously agreed between the COSTUMER and the OPERATOR. The delay in the payment of the invoice will oblige the CUSTOMER to pay a legal interest increased by two points and applicable from the due date.

8.4. - BAF (Bunker Adjustment Factor) and CAF (Currency Adjustment Factor) clauses or any extra charges that apply to the freight under any term that covers the nature of that concept. Since the factors related to the international fuel price and the currency exchange rate affect the price of the service established by the OPERATOR, the OPERATOR reserves the right to review the price in accordance with both clauses provided that it provides evidence to the CUSTOMER that such clauses have been applied by the subcontractors in the determination of freight or postage, or used by them to review the amount of such freight or postage. The above shall apply to any mode of carriage.

8.5.- The rates/prices of the OPERATOR do not include VAT or other taxes in force, customs and/or management expenses, and any other expenses and right caused by the goods carried during the carriage and until their delivery, for acts of God, Force Majeure or nature and inherent vice of the goods.

9. - RIGHT OF RETENTION.-

The OPERATOR has the right, in general and in particular, to retain the goods of the CUSTOMER to guarantee any of the payment of the amounts due to him as a result of the services entrusted to him. He may assert that right by any means that he deems appropriate and that is admissible in accordance with the laws.

10. - DISPUTES.-

Any dispute concerning the interpretation or application of these General Conditions shall be resolved and interpreted in accordance with the laws in force in Spain.

Any controversy or dispute arising from any contract to which these General Conditions apply or which relates to them, including any question regarding to their existence, validity, execution or completion, shall be finally settled by legal arbitration, administered by the Court of Arbitration of the Official Chamber of Commerce and Industry of Madrid, in accordance with its Arbitration Rules in force on the date of submission of the request for arbitration. The Arbitral Tribunal appointed for this purpose shall be composed of three arbitrators and the language of the arbitration shall be Spanish (and any other that the parties agree). The seat of the arbitration will be Madrid, Spain.