China

YUSEN Logistics (China) Co., Ltd.

Standard Terms and Conditions


I. Definitions
Unless otherwise expressly stipulated, the following words and expressions contained in the present Terms and Conditions shall have the meanings below:
Company      refers to YUSEN Logistics (China) Co., Ltd.

Client      refers to a legal or natural person who concludes a contract with the Company, receives services provided by the Company, and enjoys the rights and assumes the obligations under the contract, as well as a legal or natural person who has an interest in the said contract, including but not limited to the cargo owner, shipper, consigner, consignee or their respective agent.
Instruction      refers to a written statement containing the Client’s specific requirements, including the shipper’s written instructions and/or the requirements set out in the first page of the Company’s shipping documents (including the Company’s bill of lading).
Cargo Owner      refers to the owner of any cargo (including any containers or other equipment except for those provided by the Company or the carrier) under any transaction concluded under the present Terms and Conditions, as well as any person who has or may in the future have an interest in the relevant cargo, including the consignee named in the shipper’s Instruction and/or any page of the Company’s shipping documents (including the Company’s bill of lading).
Cargo      refers to the whole or any part of the cargo and any packaging accepted from the Customer, including live stocks as well as devices used to contain the relevant goods, such as containers, pallets or similar instruments.
Hazardous Cargo      refers to any cargo identified to be hazardous by any international treaty or domestic law, as well as any cargo which may become hazardous, explosive, flammable, radioactive, toxic, corrosive or destructive.

 

II. Scope of Application

1. The Company may notify the present Terms and Conditions to the Client by means of, including but not limited to, written form, fax, email, etc. The Client shall duly comply with and be bound by the present Terms and Conditions in actual business transactions after it has obtained knowledge hereof by, including but not limited to, the above means.

2. The present Terms and Conditions may apply to all businesses undertaken by the Company and will form an integral part of each transaction agreement concluded by the Company and the Client. The present Terms and Conditions may be modified or waived by an express written agreement made by the Parties regarding the present Terms and Conditions. If there is any conflict between the present Terms and Conditions and the content of any agreement concluded by the Company and the Client or any shipping document issued by the Company which names the Company as the carrier (including but not limited to air waybill, sea waybill, bill of lading for multi-modal transport, etc.), the relevant agreement or shipping document shall prevail.

3. The Company shall not be held liable for any advice, material or service provided by it free of charge.
4. The Company’s failure or delay to exercise any right shall not be deemed as its waiver of relevant right, and the Company’s single or partial exercise of any right shall not exclude its further or other exercise of such right or any other right enjoyed by the Company. The Company’s rights under the present Terms and Conditions shall not be exclusive of other rights enjoyable by the Company according to the law.
5. All provisions of the present Terms and Conditions shall be severable. If any provision(s) hereof is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of other provisions hereof shall not be affected thereby.


III. Contractual Status of the Client and the Company

1. Each Client which concludes any transaction or business with the Company hereby expressly warrants to the Company that, as the Cargo Owner or the agent of the Cargo Owner, it fully accepts the present Terms and Conditions on its own or the Cargo Owner’s behalf. Where the Client is an agent of the Cargo Owner, the Client and the Cargo Owner shall be jointly and severally liable to the Company, i.e., the Company shall have the right to raise claims against the Cargo Owner and/or the Client.
2. All services shall be provided by the Company in the capacity of an agent. However, under the following circumstances, the Company shall be treated as a contracting party instead:
(1) The Cargo is actually transported, handled or stored by the Company or its employees, and is also under the Company’s actual care or control;
(2) The Cargo Owner has, before transport of the Cargo, requested the Company in writing to supply the relevant information (name, charging rate, etc.) of the carrier who will undertake all or part of the transport, yet the Company fails to provide such information within 28 days upon receipt of the written request;
(3) The Company expressly agrees in writing to act as the contracting party; or
(4) The Company is identified by a court or an arbitration tribunal to be the contracting party.
3. Without prejudice to the forgoing:
(1) The Company’s role as an agent or a contracting party shall not be determined or established by its mere act of charging a fee at a fixed rate for any service of any nature;
(2) The Company’s role as an agent or a contracting party during the transport, handling or storage of any Cargo shall not be determined or established by its mere act of providing any self-owned or rented equipment;
(3) Where a bill of lading or any other shipping document obtained by the Company is capable of proving that the relevant transport contract has been concluded by the Cargo Owner or the Client with a person other than the Company, then the Company shall be identified as an agent; or
(4) Where any services provided by the Company are relating to customs declaration, taxation, license, consular documentation, certificate of origin, inspection, notarization or other similar matters, the Company shall be identified as an agent instead of a contracting party.


IV. Obligations of the Client

1. The Client warrants that by the time of signing any agreement with the Companyor accepting any document issued by the Company to it, it has fully understood the contents thereof via sufficient and effective means.
2. The Client warrants that its Instructions given to the Company are lawful, valid and feasible.
3. The Client warrants that its descriptions of the Cargo supplied to the Company are adequate and correct.
4. The Client warrants that the packing, marking, labeling, stuffing and stowing of its Cargo are in line with the requirements for transport and relevant operations. The Client shall satisfy all special requirements set by the Company at the time of receiving its Cargo based on the nature of the Cargo as well as the specific conditions of the transport route.
5. The Client shall promptly provide in writing all information required in order to enable the Company to (i) arrange and safely perform the services for the Client and (ii) comply with all conventions, laws, regulations and conditions applicable to the Cargo.
6. The Client warrants that it has complied with all applicable international conventions and laws, rules and regulations of any country to, from, or through which the Goods may be carried.
7. The Client warrants that neither the receipt, delivery or handling of the Cargo nor any payment or other transaction relating to the Cargo will expose the Company, the subcontractors or any of their employees, servants, agents, banks, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, supranational or international governmental organization or other authority.
8. Unless otherwise mutually agreed in writing, the Client shall warrant that the Cargo consigned by it is neither Hazardous Cargo defined by applicable laws, regulations, international treaties or other binding documents nor any Cargo which may cause any danger. Unless otherwise mutually agreed in writing in advance, the Client shall indemnify the Company of all expenses, losses, damage (regardless of the cause), fines and claims caused to the Company by the abovesaid Hazardous Cargo. The Company or other person having control of the Cargo shall be entitled to, without notice to the Client, determine whether the Cargo is hazardous or not and to make a decision to destroy or otherwise dispose of the Cargo at the Client’s risk and cost.
9. The Client shall not request the Company to suspend transport of its Cargo, return the Cargo, deliver the Cargo to any other destination or consignee, or discharge the relevant contract before the Cargo has been delivered by the Company to the designated consignee, unless the Client has returned a full set of the shipping documents issued by the Company in original and has also undertaken to indemnify the Company of all losses as well as to pay the Company all the additional expenses caused by the modification of the transport contract (including providing appropriate bonds if so required by the Company).
10. The Company assumes no liability to Client, or any other person, for any loss or expense including, but not limited to, fines and penalties due to Client’s failure to comply with any applicable conventions, laws, rules, regulations, licenses or permits.

V. Rights and Obligations of the Company
1. General provisions:
(1) Unless agreed in writing to the contrary, the Company shall have the right to enter into any contract with for the following matters on its own or the Client’s behalf without notice to the Client:
a) To select the carrier, means of transport and route;
b) To decide whether to containerize the Cargo or not and whether to load the Cargo on deck or not;
c) To store, load, unload, unpack, transship other otherwise dispose of the Cargo; or
d) To make other arrangements as per the Client’s Instruction or as deemed necessary by itself.
(2) Where an act or omission departs or deviates from the Client’s Instruction, the Company shall still have the right to proceed therewith without any additional liability if it believes that such act or omission is in the interest of the Client. The Company shall always observe the instructions or orders of relevant government authorities. The Company’s liability towards any Cargo shall be discharged at the time of its delivering or otherwise disposing of the Cargo as per the said instructions or orders.
(3) The Company shall act as per the Client’s authorization. However, the Company may not notify the details of such acts to the Client unless so requested by the Client in writing.
(4) If the Company at any time believes that it is or may be prevented by an impairment, risk, delay, adversity, etc. from performing its obligations and such impairment, risk, delay, adversity, etc. can not be reasonably avoided, it may terminate performance of such obligations by giving a written notice to the Client. The Company may put all or part of the Cargo to the Client’s care at any place that the Company believes to be safe and convenient, and its liability towards the Cargo shall be released thereby. The Client shall, upon request, pay to the Company additional expenses and other costs relating to the Company’s transport, delivery and storage of the Cargo to/at the said place.
(5) If the Client fails to pick up any Cargo at the place and time notified by the Company, the Company shall be entitled to store all or part of the Cargo at the Client’s risk and cost, and the Company’s liability towards the Cargo shall be released thereby.
(6) Under any of the following circumstances, the Company shall have a right (but not an obligation) to sell or dispose of all or part of the Cargo at the Client’s risk and cost:
a) The Company unilaterally believes that it is impossible to deliver all the Cargo as per the Instruction, and has notified the Client of such situation in writing 21 days in advance; or
b) The Cargo has decayed or is going to decay, or has caused or will cause any loss or damage to others.
(7) The Company shall not be held liable for the dates of departure and arrival of the Cargo unless such dates have been expressly agreed on in writing in advance.
2. Special provisions governing circumstance where the Company acts as an agent:
(1) Where the Company acts as an agent, it shall be entitled to enter into any contract with a third party either in its own name or in the Client’s name and such contract shall be directly binding on both the Client and the third party;
(2) The Company shall not be held liable for compensation unless any loss has been caused to the Client as a result of the Company’s negligence in performing its duties as an agent; and
(3) Where the Company acts as an agent, it shall not be held liable for any loss caused by the act or omission of any third party, including but not limited to the carrier, warehouse keeper, port handling company, railway authority, truck company, etc. unless the Company has failed to exercise due diligence in its selection, guidance and monitoring of such third party.
3. Special provisions governing circumstance where the Company acts as a contracting party:
(1) Where the Company uses its own transport vehicles to complete any transport, or enters into any contract, or issues any shipping documents in the capacity of a carrier, it shall bear the corresponding liabilities of a contracting party. Where the Company acts as an operator of multi-modal transport businesses, its liability period shall commence from the time of receipt of the Cargo and end at the time of delivery of the Cargo. In determining the Company’s liability, the “network accountability” principle shall be followed and the laws and regulations governing the mode of transport in the route section concerned shall be applied. However, if the Client has accepted any shipping documents issued by any person other than the Company, and has failed to hold the Company liable as a contracting party within a reasonable time, the Company shall no longer be held liable as a contracting party.
(2) Where the Company acts as a contracting party, it shall be held liable for any act or omission of any third party engaged by it to perform the services under the transport contract or other services, as if such act or omission were those of the Company.
(3) The forgoing special provisions governing circumstance where the Company acts as a contracting party shall be without prejudice to the Company’s entitlement to exemptions and limitation of liability under applicable laws and the present Terms and Conditions.

VI. Special Provisions on Transport of Containers
1. Where the stuffing or sealing of a container is not performed by the Company, the Company shall not be held liable for any loss of Cargo in the container caused by any of the following reasons:
(1) Means of stuffing or sealing of the container;
(2) The Cargo is not fit for transport in a container, unless the Company has expressly required that the Cargo be transported in a container; or
(3) The container is not cargo-worthy or is otherwise defective, unless the container has been provided by or on behalf of the Company. However, even if the container were provided by the Company, the Company shall still not be held liable if such cargo unworthiness of the container is caused by the Client’s failure to disclose any special condition of the Cargo.
2. The Client shall warrant that no loss will be caused to the Company as a result of the circumstances described in Article VI.1, and shall indemnify the Company of such loss, if any.
3. Where the Client requires the Company to provide any container, the Company shall not be obliged to provide a container of a special type or special quality unless expressly required to the contrary.

VII. Indemnification
1. The Client must indemnify and keep the Company harmless from all losses (including but not limited to all taxes, fines and costs of any nature levied by any organ) caused by the Client’s breach of its obligations, or any incorrect, incomplete or unclear material or Instruction given by the Client, or any negligence of the Client or the Cargo Owner.
2. Without prejudice to the foregoing, for any advice or material provided by the Company to the Client, the Company shall be liable to the Client only. The Client shall be obliged to indemnify and keep the Company harmless from all claims and liabilities caused to the Company as a result of any other person’s reliance on such advice or material.
3. The Client undertakes that all provisions on exemptions, limitation of liability, etc. applicable to the Company under relevant laws and the present Terms and Conditions shall also apply to the Company’s employees, agents, subagents, etc.
4. The Client shall indemnify and keep the Company harmless from all claims and costs incurred by the Company beyond the scope of the present Terms and Conditions.
5. The Client shall indemnify and keep the Company harmless from all claims of general average nature, and shall provide all securities required by the Company for such claims.
6. If, after it has agreed to transport certain Hazardous Cargo, the Company unilaterally believes that such Hazardous Cargo constitutes a risk to other Cargos, properties, lives or health, or that the transport or unloading of such Hazardous Cargo may result in an arrest of the Hazardous Cargo itself or other properties or persons under certain restrictive provisions of law, the Company may destroy or otherwise dispose of the Hazardous Cargo at the Client or the Cargo Owner’s cost without giving any notice or bearing any liability.
7. The Client shall indemnify for all losses, pollutions, contaminations, delays or demurrage as well as all losses of the Company or any other person’s properties (including but not limited to containers) or ships caused directly or indirectly by the Client, Cargo Owner or any of their employees, agents or representatives before, during or after the transport.

VIII. Fees
1. The Company shall have the right to select the calculation basis of the fees charged by it, either by value, by weight or by volume. At the Client’s request, the Company may provide details of the calculations of the fees (e.g., freight).
2. The Client shall timely pay all sorts of fees to the Company in full amount either by cash or by other agreed means, and shall not deduct or delay such payments for any reason.
3. Where the Company is instructed by the Client to collect any fee from a third party, if the Company encounters any difficult in doing so, the Client shall immediately and unconditionally pay the said fee to the Company.
4. The Company shall have the right to charge interests on any overdue amount at the daily rate of 0.04% from the due date till the actual payment date of such amount.
5. Subject to the conditions and any specific reservations or conditions contained or referred to in the quotations, the Company’s quotations shall take effect once accepted by the Client. If there is any material change in foreign exchange rate, freight, insurance, or other national policies or market rates, the Company may change its quotations or charging rates accordingly through consultation with the Client.
6. Where the Client fails to pay off any amount to the Company, the Company or its agent shall be entitled to place a lien over any Cargo and documents received by it. If the Client still fails to pay the said amount within 28 days upon receipt of the notice of lien, or if the relevant Cargo is easy to decay yet the Client fails to pay any amount within a reasonable time limit upon receipt of the Company’s written notice, the Company shall be entitled to dispose of the Cargo and documents mentioned above so as to recover the overdue amount as well as the costs incurred by it in disposing of the Cargo and documents.

IX. Exemption of the Company’s Liability
Unless otherwise stipulated or provided by any applicable conventions, laws, regulations or conditions, the Company shall not be held liable for any loss caused by any of the following reasons:
1. The Client or its agent’s act or negligence;
2. Its execution of the Client’s Instruction;
3. Improper packing, marking or labeling of the Cargo;
4. The Client or its agent’s handling, loading, unloading or stowage of the Cargo, and stuffing, unstuffing and sealing of the containers;

5. Any breach of any of the warranties or undertakings given or obligations undertaken by the Client under the present Terms and Conditions;
6. Inherent defect of the Cargo;
7. Strike, unrest, embargo, etc.; or
8. Other events which can not be avoided by the Company despite its due care.


X. Limitation of Liability
1. Unless otherwise stipulated by the present Terms and Conditions or an international convention or national law or regulations applies compulsorily to any element of the services provided by the Company, the Company’s liability for any consequence caused by its negligence, fault or any other reason shall in all cases be the lower of:
(1) The value of the Cargo which has been lost, damaged, wrongly transported or delivered or which has caused the relevant claim; or
(2) 1 special drawing rights (SDR) for each kilogram in the gross weight of the Cargo which has been lost, damaged, wrongly transported or delivered or which has caused the relevant claim (note: SDR shall have the definition given by the International Monetary Fund. The value of 1 SDR shall be determined by applying the exchange rate prevailing at the time a settlement agreement is concluded by the Parties or the time a judgment is entered by the competent court).
2. Where a claim caused by any delay in delivery of any Cargo is not covered by the exemption clause of the present Terms and Conditions, the Company’s liability for such claim shall be limited by the amount of freight charged by it on the Cargo concerned.
3. The value of Cargo shall be the sum of the Cargo’s value at the time it is put into the Company’s care, plus insurance premiums (if paid), plus freight. In satisfying a claim, all relevant fees and costs reduced or exempted by the loss or damage of the Cargo shall be deducted.
4. The stipulations of this Clause shall not, in any way, prejudice the Company’s entitlement to a lower limitation of liability than the limits as set out the Sub-clause 1 hereof under any international conventions, national laws and regulations applicable to any element of the services provided by the Company, nor shall constitute a waiver by the Company of any statutory limitation of liability more favorable to it.
5. Where the Client has declared the value of its Cargo or otherwise expressly agreed with the Company on the value of its Cargo at the time the Company receives the Cargo, the Client may claim higher payment from the Company, provided that the claim amount shall in no case exceed the declared or agreed value of the said Cargo.


XI. Notice
1. Where any Cargo has been lost or damaged, the designated consignee shall, at the time of receiving the Cargo, notify the Company of such loss or damage in writing and give a basic description thereof. Otherwise, the delivery of the Cargo shall constitute prima facie evidence of the Cargo’s being in apparent good condition on delivery. Where the damage is not obvious, the Company shall be notified in writing thereof within 7 clear days after the Cargo has been delivered to the designated consignee. In the absence of such a written notice, the delivery of the Cargo shall also constitute prima facie evidence of the Cargo’s being in apparent good condition on delivery.
2. A claim against any loss or damage of any Cargo shall be raised within 14 clear days after the date the Client knows or should have known the occurrence of such loss or damage. Otherwise, the Client shall be deemed as having waived its right of claim unless it is capable of proving that there is a cause for its failure to raise a claim within the prescribed time limit and that it has raised the claim immediately after elimination of such cause.


XII. Insurance
The Company will not arrange any insurance unless it has received an express Instruction from the Client. All insurances arranged by the Company must be subject to the exception clause stated in the insurance policy issued by the insurance company or the underwriter and also be subject to general restrictions. The Company shall not be obliged to arrange independent insurance for each transport. If an underwriter challenges its liability for any reason, the insured may only recourse against the underwriter while the Company shall not be held legally liable in this regard even if the amount of the premiums stated in the insurance policy were different from that collected by the Company or that paid by the Client to the Company. Where the Company agrees to arrange any insurance, it shall only act as the Client’s agent and endeavor to arrange the insurance but does not warrant or undertake that the relevant insurance company or underwriter will accept its arrangement.

XIII. Statute of Limitations
Unless otherwise expressly agreed in writing or unless the Client has brought a lawsuit against the Company in accordance with Article 14 of the present Terms and Conditions, the Company shall be released of all its liabilities upon expiration of a 9-month period following the date the relevant Cargo has been or should have been delivered or the date the Client becomes entitled to treat any undelivered Cargo as lost.

XIV. Governing Law and Dispute Resolution
All disputes arising from or relating to the present Terms and Conditions as well as all disputes arising from the Company’s freight forwarding services shall be governed by the laws of the People’s Republic of China (“PRC”) and be submitted to the people's court where the Company is located.

XV. Miscellaneous
In the event of any contradiction between the Chinese version and English version of the present Terms and Conditions, the Chines version shall prevail.



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