The following terms shall have the following definitions for the purposes of these GTCs:
“Agreement” means the Courier and Express Services Agreement, these GTCs, any Confirmation, any addendums, schedules and/ or annexes thereof accepted by both Parties, in each case as they may be supplemented or amended from time to time.
“Client” means the individual or entity contracting with the Company, as stated in the Confirmation.
“Company” means the contracting entity belonging to the Chapman Freeborn Group of companies as stated in the Confirmation.
“Confirmation” has the meaning as set out in Clause 2 below.
“Convention” means whichever of the following apply:(a) The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929 (referred to below as the Warsaw Convention).
(b) The Warsaw Convention as amended at The Hague on 28 September 1955.
(c) The Warsaw Convention as amended by Additional Protocol No.1 of Montreal (1975).
(d) The Warsaw Convention as amended at The Hague and by Additional Protocol No. 2 of Montreal (1975).
(e) The Warsaw Convention as amended at The Hague and by Additional Protocol No. 4 of Montreal (1975).
(f) The Guadalajara Supplementary Convention (1961).
(g) The Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal, 28 May 1999 (referred to below as the Montreal Convention)“Courier” means independent contractor couriers or the Company’s existing employees to act as a courier.
“Data Controller” has the meaning given to it in Data Protection Legislation.
“Data Processor” has the meaning given to it in Data Protection Legislation.
“Data Protection Legislation” means all applicable statutes, laws, secondary legislation, rules, regulations and guidance from a Supervisory Authority (or its UK equivalent) relating to privacy, confidentiality, security, direct marketing or data protection of Personal Data or corporate data (including any national laws implementing any such legislation (including Directives 95/46/EC, 2002/58/EC and 97/66/EC)), including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI2003/2426), the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the General Data Protection Regulation. Without limiting the generality of the foregoing, Data Protection Legislation includes the applicable laws of the country and local jurisdictions from which the personal information originated, the applicable laws of all countries and local jurisdictions through which the personal information travels and the applicable laws of all countries and local jurisdictions to which the personal information is directed.
“Data Subject” has the meaning given to it in Data Protection Legislation.
“Effective Date” means, as the case maybe, the date on which both Parties sign the Agreement that incorporates the final quotation or the Client accepts these GTCs by email confirmation for a specific Confirmation.
“Force Majeure” has the meaning as set out in Clause 17 below.
“Indemnified Parties” has the meaning as set out in Clause 13.2 below.
“Losses and Liabilities” means any and all direct and indirect costs (including the costs of investigating and defending any claims), expenses, payments, charges, demands, liabilities, claims howsoever arising (including claims arising out of the strict or absolute liability in tort), losses, damages, injuries, orders, awards, fines, proceedings, and judgments of whatsoever nature.
“Personal Data” means any data or information relating to an identified or identifiable natural person, including any such data or information as defined in applicable Data Protection Legislation.
“Recevier” means the receiver of the Shipment that is identified by the Client in its Confirmation and/or request for quotation.
“Relevant Authority” means any governmental or regulatory body or authority including without limitation border control authorities, airport authorities, customs authorities, customs inspection stations, police and any other authorities having legal jurisdiction over any element of the transportation, flight and/or Services.
“Representatives” means either Party’s officers, directors, shareholders, owners, employees, accountants, attorneys, consultants, contractors and advisors.
“Service” means an on-board courier service through the use of Couriers for the national and international air carriage of certain types of express and courier parcels and also on request, related services thereto, including the ancillary transport to and from the airport(s) involved.
“Shipment” means any cargo parcel that is requested to be transported as per the Confirmation of the Client.
Each of the Company and the Client shall be referred to herein as a Party and collectively as the Parties.
The Company provides Services on behalf of its clients and the Client desires to receive the said Services for its Shipments from the Company. Subject to the terms and conditions of the Agreement, the Company agrees to provide and Client agrees to pay for the Services for each Shipment as agreed and specified in the Confirmation.When the Client requires a Service to be arranged, the Client will contact the Company by email / API or any other media through which the Company communicates with the Client in writing for obtaining the options of the intended Services for the Shipment and the respective quotations. Upon such request from the Client, the Company will use reasonable endeavours to provide a quotation for such Service along with any terms and conditions applicable to the Shipment. Once the final quotation is acceptable to the Client, the Client will send its confirmation in writing either by accepting the quotation that incorporates the GTCs via email or signing the Agreement that incorporates the details of the final quotation and the GTCs as the case maybe (“Confirmation”). The Company shall not be obliged to procure or the Client shall not be obliged to receive any of the Services until the Agreement is in full force and effect as of the Effective Date.
3. Company’s Obligations
The Company shall organize the carriage of the Shipment, as agreed via Confirmation, in consideration for Client’s payment of the Company’s invoice for the carriage of the Shipment and fullfilment of its obligations hereunder.The Shipment will be carried by air by a Courier. the Company’s sole obligations to the Client shall be to organize the carriage of the Shipment from the specified pick-up address to the specified delivery address.The Company is not obliged to make the customs clearance of the Shipment. In the event that the Client requests the Company to arrange customs clearance through self declaration, the Company may accept or decline arranging the customs clearance of the Shipment on behalf of the Client. If accepted by the Company, such customs clearance will be handled by the Courier pursuant to Clause 4(b) below. The Client shall provide all required information/documents in a timely manner, accurately, in full and complete to the Company. The Company and the Courier shall not have any liability or responsibility related to such information/documents or custom clearance process. The acceptance of the Company to arrange the custom clearance shall not be deemed or construed that the Company accepts any responsibility or liability in connection with or arising from such process. The Client acknowledges that the custom clearance is subject to the discretion of respective Relevant Authorities and assumes full responsibility and liability for such process.
4. Client’s Obligations
(a) represents and ensures that all information it provides to the Companyshall be accurate and capable of being relied upon by the Company and the Courier in performing carriage of the Shipment and, further, that such information is correct in all material respects;
(b) agrees that if the Courier is required to manage the customs process or other similar declaration or provide statement to a Relevant Authority during the course of the carriage that requires a description of the Shipment and its value, the Courier is entitled to rely upon and provide in that declaration the information provided by the Client. In managing the process and submitting any such declaration, the Courier is acting solely as the Client’s representative and agent, for the Client’s own account, and is not acting on behalf of the Company;
(c) hereby agrees that, should the Company or the Courier be required to do so at any time by any Relevant Authority, the Company and Courier and each of them shall be permitted to disclose any of the information set forth in the Agreement and in the applicable Confirmation to said Relevant Authority;
(d) shall ensure that the Shipment is properly labelled, packaged suitable for air transport by the Courier; such packaging shall take into account whether the Shipment is to be carried as carry-on luggage or checked luggage. Neither the Company nor the Courier shall be required to package or repackage the Shipment for carriage. The Company shall be entitled to reject the Shipment and return it to the Client if, in the Company’s or air carrier’s or Courier’s opinion, it is not suitably packaged for carriage and the Client acknowledges that the Company, the Courier and/or the air carrier are entitled to open the Shipment on any time;
(e) shall comply with and shall ensure that the Shipment complies with all industry customs and standards, including without limitation the applicable regulations of International Air Transport Association (IATA), International Civil Aviation Organization (ICAO), all applicable laws and regulations of any country or state to, from or over which the Shipment may be carried, including without limitation aviation regulations, customs, police, public health, immigration, and any other laws and regulations including those relating to the carriage of dangerous or hazardous goods, live animals and security or protection against acts of terrorism; and
(f) shall at all times fully comply with all governmental and other applicable regulatory requirements of any country to, from, through or over which the Shipment may be carried or may be otherwise applicable, relating to the labelling of the Shipment and the preparation of any documents required for the transport of the Shipment, including but not limited to documentation relating to import or export or customs clearance and shall complete and provide all such documentation prior to the carriage of the Shipment.Any failure by the Client to comply with any of these obligations shall be a material breach of the Agreement and entitle the Company to terminate the Confirmation and/or the Agreement and/or suspend performance of any of the former.
Where the Company uses an existing the Companyemployee to act as a Courier, the employee performs and is compensated for performing the Courier services under the terms of his or her employment contract with the Company, and the Company controls and directs the manner and means by which the employee performs his or her work as Courier, the Company shall retain sole discretion and control of the manner and means by which the Services shall be performed. In all other circumstances, the Courier shall be engaged and provide the Services as an independent contractor and the Courier is not, and shall not be deemed to be, an employee of the Company.Where the Courier is acting as an independent contractor, the Company shall have sole discretion in whether to engage a Courier to perform the carriage of the Shipment on behalf of the Client, and the Courier shall retain sole discretion and control of the manner and means by which the Services shall be performed, and, subject to the provisions of Clause 13 hereof, the Company’s sole responsibility with respect to the performance of the carriage by Courier shall be to choose the Courier for such carriage and give information to the Courier in accordance with the information provided by the Client.
6. Rejection of Shipment and Excluded Commodities
(a) The Company shall be entitled to reject any Shipment, terminate this Agreement and/or suspend performance of this Agreement if:
(i) the Shipment is not made available for pickup at the pickup address at the requested pickup date and time;
(ii) the Shipment is not properly labelled or packaged suitable for ransport;
(iii) the appearance, content or packaging of the Shipment at the time of pickup does not correspond to the description provided by the Client; or
(iv) after the Confirmation is given, the Client materially modifies the information relating to the Shipment, including but not limited to a modification as to the pickup or delivery location, pickup or delivery date or time, or Receiver.
(b) The Company will not organize carriage of any of the following commodities, which shall at all times be excluded from being part of any Shipment:
(i) any individual parcel with a weight of over 32 kgs/70 lbs subject to air carrier’s acceptance;
(ii) any individual parcel which exceeds the dimensions 158 cm/62 inch L+W+H bulky parcels on request (subject to specific exceptions as may be agreed, in its sole discretion, by the Company and air carrier’s acceptance);
(iii) hazardous material, dangerous goods, or prohibited or restricted articles under any applicable local laws and regulations of IATA, ICAO or any applicable Relevant Authority including without limitation those of any civil aviation authority, customs, police, public health, or immigration authorities;
(iv) any commodities as to which there are export controls, or for which special authorization or import licenses or permissions are required by any applicable Relevant Authority and the Company has not been furnished with proof that such controls, authorizations, licenses or permissions have been complied with or obtained by Client;
(v) any of the following: animals (dead or alive), foodstuffs, perishable items, plant and plant materials, bullion, currency, bearer form negotiable instruments, travelers checks, stamps, precious metals and stones, firearms and/or parts thereof and ammunition, weapons of any kind, human remains or parts, pornography, illegal drugs, tobacco, and/or any articles or parcels that the Company, in its absolute discretion, considers may be identified by any applicable Relevant Authority as being such an item and may therefore lead to interception of or delays to the Shipment, the Services and/or the Courier;
(vi) any other commodities that may be excluded from carriage on board an aircraft by the air carrier, or any other vehicle by the respective carrier or the regulations or laws of any country to, from or through or over which the Shipment may be carried or may be otherwise applicable. Such exclusion will be at the sole discretion of such carrier or applicable Relevant Authority and the Company shall not be liable to the Client in the event of any delay, interruption in or termination of carriage or any resulting loss or damage to the Client or to any third party as a result of said exclusion, notwithstanding the Company’s choice of carriers or any involvement of the Company in determining the route taken for the carriage. Moreover, any such exclusion or delay shall not affect the Company’s right to payment pursuant to Clause 10 hereof;
(vii) any part of the Shipment in respect of which no customs declaration is made, when required by the applicable customs regulations; and
(viii) any commodity which the Company decides, in its absolute discretion, cannot be transported safely or in compliance with any applicable laws or regulations.If the Client tenders for carriage under the Agreement any commodities that fall within the descriptions of subparts (a) or (b) of this Clause, the Client shall be liable to the Company for any and all Losses and Liabilities incurred and shall be under a duty to cooperate with the Company in minimizing such damages, expenses or cost.
Each of the Company, the Courier, the carriers including air carrier, any applicable Relevant Authority or any other entity entitled by law, have the right to open, inspect and/or perform any screening of, by x-ray or otherwise, any Shipment or any parcel or part thereof, without prior notice to the Client, at any time and the Company shall incur no liability of any kind in respect of the same. This includes the right to check the content of a Shipment physically, take photos of the content of the Shipment and store such photos. The Client acknowledges that the Shipment could not be opened without any damage and the Company shall incur no liability of any kind in respect of same.
The Company shall be responsible for organizing the flight and route that the Courier takes in performance of the carriage of the Shipment. The choice of any carrier including air carrier shall be at the Company’s sole discretion. The Company assumes no obligation to route a Shipment via any specified aircraft or over any particular route or to make a connection at any point, according to any schedules. Should the flight that is chosen by the Company be delayed or cancelled for any reason, or the Courier fails to board the said flight for any reason other than where such is caused due to the Client or any third party engaged by the Client or any Relevant Authority, the Company shall use its best efforts to make alternative arrangements for carriage on the next available flight and shall notify the Client of the change. In order to facilitate delivery to the Receiver, the Company shall be entitled to divert or change the routing of the Shipment or substitute an alternative carrier or aircraft or cause a Shipment to be transported by motor vehicle or other form of transport.
9. Delivery and Undeliverable Shipments
The Company undertakes to instruct the Courier to deliver the Shipment to the delivery address provided by the Client. The Company does not guarantee that the Shipment will be delivered in person to the Receiver. The Courier is entitled to deliver the Shipment to any person or company which is apparently authorized to receive the consignment on behalf of the Receiver. The complete address, telephone and e-mail of the Receiver is required to be indicated on the Confirmation. In the event such information is not known at the Confirmation stage, it should be provided to the Company latest by the delivery of the Shipment to the Courier. The Client understands and accepts that under certain circumstances delivery may be made to a third party (e. g. customs agent) or to another location to which the Receiver has access to. The Parties agree that the Shipment cannot be delivered to a post office box.If the Shipment cannot, for any reason, be delivered to the said delivery address, or the said Receiver refuses to accept delivery or, in the event of a “cash on delivery” payment agreement, to pay for the Shipment, or the delivery address or the Receiver cannot be reasonably identified or located, the Company shall notify the Client and shall agree with the Client on how to proceed. If no agreement can be reached within a reasonable time, the Company shall use all commercially reasonable efforts to return the Shipment to the Client, which return shall be made at Client’s sole cost. If the Client cannot be located any more, or does not accept the return of the Shipment, or pay for its return, the Company shall be entitled to release, dispose of or sell the Shipment, without incurring any liability to the Client or anyone else, and shall be entitled to apply the proceeds of any sale of the Shipment against any charges and related costs incurred, with the balance of those proceeds returned to the Client.
Offers or quotations submitted by the Company are not binding. Such offers and quotations represent only an approximate statement of the fees and costs arising in connection with the organisation of the transport of a Shipment.
In consideration for the Company’s organization of carriage of the Shipment pursuant to the Agreement, the Client agrees to pay the Company a charge or fee as agreed upon by Parties in the Confirmation pursuant to this Clause. A payment from the Client to the Courier does not constitute a fulfillment of the contractual obligations under the Agreement.
Fees, levies, taxes, costs or charges including without limitation airport fees and storage costs imposed by any Relevant Authority or any engaged third party which are incurred during or as a result of the performance of the Services hereunder, or any additional expenses which shall be borne by the Client as contemplated under the Agreement shall be timely reimbursed by the Client to the Company. The Company is entitled, but not obliged, to ask for a payment in advance from the Client. The final payment terms will be laid out in the quotation confirmed by the Client via Confirmation unless otherwise mutually agreed by the Parties.
All payments required to be made by the Client shall be made in full without any withholding, deduction (such as, but not limited to, any deduction in respect of bank charges applied by the remitting or the beneficiary bank), delay, set-off or counterclaim of any kind whatsoever. The Company will apply sums paid by the Client, at its discretion, to any amount then outstanding from the Client.
Default interest shall be payable on any late payments (i) 8% per annum above Bank of England’s base rate in case of the Client being a legal entity and (ii) 5% per annum above Bank of England’s base rate in case of the Client being a consumer from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
Time for the making of all payments under the Agreement shall be of the essence.
11. Non-Transport Charge
In the event of non-transport which is not the fault of the Company, the Client is required to make payment to the Company and the Company may require compensation for the agreed fee/charge, any costs and expenses including without limitation for storage or waiting expenses incurred less any savings made as a result of the cancellation or otherwise. In order to simplify this process, a flat-rate proportion of 75% of the agreed net fee/charge will be applied.
For the avoidance of doubt, the Client may cancel a Service subject to payment of above amount to the Company or any higher cancellation charge set forth under the quotation of the Company accepted by the Client via Confirmation.
The Client is responsible for having the Shipment fully insured. The Company is not obliged to insure the Client or the Shipment and is not responsible in arranging any cargo insurance for Shipments under the Agreement. In the event the Client request any insurance to be arranged by the Company for the Shipment, such arrangement shall be at the Company’s sole and absolute discretion and may be subject to additional costs according to the coverage and limitations/exclusions required by the Client.
13. Liability and Indemnity
13.1 Liability of the Company
(a) While the shipment is in the custody of the Courier or any third party including without any carrier, the Company has no care and liability. The Company shall be only liable for damage, destruction, loss of or delay in the Shipment while it is the care of the Company and if the Company has breached its obligations in connection with the determination of the means of transport and the route of transport, or the selection of the Courier. The Company shall be released from this liability if the damage could not have been averted by the diligence of a prudent businessman. If such situation arises, the Company will assign any claim against the Courier, the Airline Company, or any other third party to the Client.
(b) Any liability of the Company for damage, destruction, loss of or delay to the Shipment or any part or parcel thereof, shall not exceed the amount provided for by any applicable Convention. Any contrary term or provision contained herein is hereby superseded and replaced by the applicable Convention rule relating to liability in such cases. The Convention governs and limits the liability of the Company, the Courier and the chosen air carrier with respect to loss, damage, destruction or delay to cargo and for death to or injury of passengers in international carriage. The limitations of liability set forth by the Convention shall also apply to ancillary transports to and from the airport of departure or arrival utilised by the Courier in carrying the Shipment. In the event that a certain transport service is not subject to the provisions of the Conventions, the parties agree that the Montreal Convention will apply.
(c) Notwithstanding any other provisions of the Agreement, the Company shall not be liable to the Client if and to the extent that the destruction, or loss of, or damage to, the Shipment resulted from one or more of the following:
(i) any special, indirect, incidential or consequential loss or damage whether caused by breach of contract (including the Agreement), negligence, breach of any statutory duty or arising in any other way (whether such loss or damage were foreseen, foreseeable, known or otherwise);
(ii) any loss of profits, income, goodwill, contracts, revenues or wasted management time, howsoever incurred;
(iii) loss or damage as a result of delay in, or failure of, delivery of any Shipment, provided that such delay was due to circumstances beyond the Company’s, Courier’s or carrier’s control (including, without limitation, due to acts of any Relevant Authority);
(iv) any loss of, damage to, delay in delivery or failure to make delivery of the Shipment to the Receiver or the delivery address or any failure in performance of its obligations under the Agreement to the extent such are caused, hindered or prevented by reason of a Force Majeure;
(v) any loss or damage resulting from any inherent defect, quality or vice of the Shipment, the intrinsic nature of defect in the the commodity that constitutes the Shipment, or any improper packaging, sealing or preparation of the Shipment for carriage.
13.2 Liability of Client and Indemnification
If the Client does not comply with its obligations under the Agreement, the Client shall be liable to the Company. No limitation of liability shall apply in favor of the Client.
The Client shall indemnify and defend the Company and/or the Courier and/or the air carrier and/or any other person acting on behalf of the Company in performance of the Agreement and their Representatives (“Indemnified Parties”) and shall hold any and all Indemnified Parties harmless from and against any Losses and Liabilities arising out of or relating in any way, directly or indirectly, in whole or in part, to the Client’s failure to comply with any applicable laws or regulations or for breach of any of its obligations under the Agreement. Such obligation to indemnity, defend and hold harmless shall extend to any director, officer, employee or agent of the Company.
The provisions of this Clause 13 shall survive the termination or expiry of the Agreement.
Any claims made by the Client against the Company in respect of a Shipment must be made in writing and submitted within: (a) three (3) days of delivery in the case of loss or damage, (b) fifteen (15) days of the date when the Shipment should have been delivered in the case of delay and (c) twenty one (21) days for all other claims. Failure to submit claims within such time limits shall be conclusive proof that any such claims have been waived by the Client. The Client must send all relevant information about the claim to the Company within ten (10) days of notifying the claim and the Company shall not be obliged to act on any claim until all sums due to it under the Agreement have been paid by the Client. Receipt of a Shipment by the Receiver without written notice of damage on a delivery receipt is prima facie evidence that the Shipment was delivered in good condition. In order to consider any claim, the Company may require that the Receiver makes the contents, original shipping cartons and packaging of the Shipment available to the Company for inspection.
The Agreement and the information and details of the Shipment shall be treated as Confidential Information by each of the Parties. Each Party agrees and warrants that it will keep all Confidential Information strictly confidential and shall not, without the prior written consent of the other Party, disclose any such Confidential Information to any person or entity other than the Representatives who need to know the Confidential Information for the purpose of performing the obligations hereunder or otherwise rendering advice or assistance with respect to or arising from the Agreement or the obligations hereunder. Notwithstanding the foregoing, if either Party or its Representatives are legally required to disclose any Confidential Information, in connection with performing the Agreement or in any other circumstance, including but not limited to compulsion of a court or legal process, or investigation or request from a Relevant Authority, compliance with that legal compulsion shall be permitted and shall not be a breach of this Agreement.
The provisions of this Clause 15 shall survive the termination or expiry of the Agreement.
Without prejudice to any other rights including the right to claim damages from the Client under the Agreement or at law, the Company may, suspend the provision of the services under the Agreement or terminate the Agreement immediately upon notice to the Client on the occurrence of any of the following events:
(a) the Client breaches any of its obligations under the Agreement; or
(b) the Client fails to make a payment under the Agreement on its due date; or
(c) the Client becomes insolvent, or if an order is made or a resolution is passed for the winding up or liquidation of the other Party, or if an administrator, administrative receiver or receiver is appointed in respect to the whole or any part of the other Party’s assets or business, or if the other Party makes any composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt.
Termination shall not affect any debt, claim or cause of action accrued to the Company against the Client before the termination. The rights of termination provided in this Clause are not exclusive of other remedies that the Company may be entitled to under the Agreement or in law or at equity.
17. Force Majeure
The Company shall not have any liability to the Client for any failure or delay in fulfilling its obligations to the extent that fulfilment thereof is impeded due to an event that are beyond the Company’s, Courier’s or carrier’s reasonable control including without limitation acts of God or public enemy, hijacking, war, civil war, civil unrest, warlike events and those that arise independent of the state of war as a consequence of one of these said dangers; insurrection, riot, or strikes or labour disputes; fire, flood, adverse weather conditions, explosion, earthquake; serious accident, mechanical breakdown, failure of equipment; epidemic, quarantine restriction; any act of terrorism, political acts of violence, irrespective of the number of persons involved, and other acts of persons or groups of persons to achieve political, religious, ethnic, ideological or other aims which are capable of spreading fear and terror in the population and through that influencing government or state institutions or a part of the same; confiscation, divestment or other seizures by sovereign hand; any sanction or prohibition imposed by any Relevant Authority, or any act of any government; dangers relating to nuclear energy or ionizing radiation; dangers from the use, by anyone, of chemical, biological, biochemical substances or weapons dangerous to public safety, without consideration of other contributory causes (“Force Majeure”). The Company will notify the Client promptly after becoming aware of any Force Majeure and will be entitled to terminate the Confirmation and/or the Agreement if such Force Majeure lasts more than seventy-two (72) hours.
(a) The Client represents, warrants and undertakes that:
(i) neither the Client nor any of its directors, officers, employees, contract workers, assigned personnel, subsidiaries nor, to the best of the knowledge of the Client (having made due and careful enquiry), any agent, subcontractor, supplier or affiliate or other person associated with or acting on behalf of is an individual or entity (“Person”) that is, or is acting on behalf or for the benefit of the Person that is, or is owned or controlled by the Persons that are:
a. currently the subject or the target of any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures imposed, administered or enforced from time to time by the United States of America, the United Nations, the European Union, the United Kingdom, the jurisdictions where the Company and the Client are incorporated, carry out business or the Agreement is performed or any Relevant Authority, governmental or regulatory institution or agency of any of the foregoing, including but not limited to the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the Bureau of Industry and Security of the U.S. Department of Commerce or the U.S. Department of State, the United Nations Security Council, the Council of the European Union, HM Treasury or other relevant sanctions authority (including but not limited to the designation in the Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Denied Persons List maintained by the US Department of Commerce, the UK Sanctions List, and the OFSI Consolidated List maintained by HM Treasury, or any other list issued or maintained by any foregoing sanctions authorities of persons subject to sanctions (including investment or related restrictions), each as amended, supplemented or substituted from time to time) (collectively, the “Sanctions”); or
b. located, organised, operating or residing in a country, region or territory that is, or whose government is, the subject or the target of the Sanctions from time to time, including but not limited to Crimea, Cuba, Iran, North Korea, Sudan and Syria;
(each such Person is hereinafter referred to as the “Sanctioned Person”).
(ii) From its date of incorporation the Client has not engaged in, is not now engaged in, nor will engage in, any dealings or transactions with any Person that at the time of the dealing or transaction is or was Sanctioned Person.
(iii) The Client shall not, directly or indirectly, use the benefit received from the Agreement including but not limited to services or goods acquired: (i) to facilitate any activities or business of or with any Person that is the Sanctioned Person; or (ii) in any other way or manner that would result in a violation of the Sanctions by the Company.
(iv) The Client and any Person that may be involved by the Client in the execution and/or the performance of the Agreement has complied and shall comply with all national, supra-national, local or foreign laws and regulations in relation to combatting against bribery, fraud and racketeering, corruption, money laundering and/or terrorism administered, enacted or enforced from time to time by the United States of America, the United Nations, the European Union, the United Kingdom, the jurisdiction where the Client is incorporated, carries out business or the Agreement is performed (collectively, the “ABC/AML Laws”) and that neither the Client nor the Person that may be involved by the Client in the execution and/or the performance of the Agreement has violated, is in violation of, or will violate the ABC/AML Laws.
(v) The Client has not been involved, will not be involved in, or attempt to be involved in modern slavery or human trafficking or agree or attempt to assist any person who is involved in modern slavery or human trafficking in any activity which would violate the UK Modern Slavery Act 2015 or any similar applicable law or regulation.
(vi) The Client has not received and shall not receive any convictions, findings, fines, warnings or penalties issued by any competent authority in relation to anti-bribery and corruption, anti-money laundering, modern slavery or the Sanctions.
(vii) If at any time the Client becomes associated with potential violations of anti-bribery and corruption, anti-money laundering, modern slavery or the Sanctions regulations, the Client shall promptly, but not later than within 5 (five) calendar days, notify the Company thereof in order to allow the Company to examine the situation and assess risks, whereupon the Company shall be entitled to terminate this Agreement pursuant to Clause 18(f) below.
(viii) The Client shall at its own expense, comply with all laws, ordinances, rules and regulations (including but not limited to the 10 principles of UN Global Compact and 4 fundamental principles of International Labour Organisation (ILO) and other pertaining to health, sanitation, fair trade, consumer protection or prevention of harm or damage to the natural or social environment in respect of the assets, business and operations of the Client, obtain all licenses, approvals and permits required by, and pay all taxes, fees, charges, and assessments imposed or enacted by, any Relevant Authority and the Client shall not take any action which will cause the Company to be in violation of any law, regulation or ethical standard of any applicable jurisdiction.
(ix) The Client maintains at all times adequate systems, controls and procedures to ensure that it and its directors, officers, agents, employees, contract workers, subsidiaries, subcontractors or suppliers and any other persons associated with it comply with the Sanctions and the ABC/AML Laws.
(x) The Client shall promptly upon request of the Company supply such information and documentation as is requested by the Company in order for the Company to carry out the verification of the Client and decide on the on-boarding of the Client pursuant to the internal procedure applied by the Company to verify the identity of its counterparties, any Persons involved in the execution and/or performance of the Agreement, their key personnel and ultimate beneficial owners, risk assessment and on-boarding (the KYC Procedure).
(xi) Information and documentation conveyed by the Client during the KYC Procedure is true, accurate, complete and not misleading in any way and was provided without omission of any material information and the Client shall promptly, but not later than within 5 (five) calendar days, notify the Company of any changes to any information and documentation during the KYC Procedure or if it subsequently discovers anything which renders any such information untrue, inaccurate or misleading in any material respect, whereupon the Client shall repeatedly undergo the KYC Procedure.
(b) The representations and warranties made by the Client in this Clause 18 are continuing and shall be true at the time of execution of the Agreement as well as at all times during validity of the Agreement. In case of any disagreements as to the Client’s compliance with provisions of this Clause, the Client at its own expense shall cause to be furnished to the Company a legal opinion of a reputable law firm satisfactory to the Company, clarifying the status of the foregoing.
(c) The Client shall indemnify and hold the Company harmless against any Losses and Liabilities incurred by the Company as well as any monetary sanctions arising out of or in connection to incorrectness, inaccuracies in any the Client representations or warranties set out in, or any failure of the Client to comply with any provisions of, Clause 18(a) above (each, the “Compliance Breach”).
(d) Upon occurrence of any Compliance Breach, the Client shall be deemed as having committed a material breach of the Agreement, whereupon the Company shall be entitled, by giving a written notice to the Client with immediate effect, to:
(i) unilaterally suspend performance of the the Company’s obligations under the Agreement until the Compliance Breach is remedied to the full satisfaction of the Company;
(ii) declare all sums owing to the Company under the Agreement immediately due and payable;
(iii) demand that the Client reimburses, and the Client shall promptly but no later than within 5 (five) calendar days upon the Company’s notice reimburse, any Losses and Liabilities suffered or incurred by the Company as a result of or in connection with any Compliance Breach; and/or
(iv) unilaterally terminate the Agreement on an out of court basis.
(e) The rights and remedies of the Company set out in this Clause 18 may be exercised concurrently or in any order and are not exclusive of any other rights or remedies available to the Company by agreement, law or otherwise nor shall give rise to any the Company’s liability in connection with their exercise.
(f) Without prejudice to Clause 18(g) below, the Company shall be entitled, by giving a written notice to the Client effective immediately, to unilaterally terminate the Agreement on an out of court basis if at any time the Company becomes aware of any relationship of the Client with the Sanctioned Person or any association of the Client in potential anti-bribery and corruption, anti-money laundering, modern slavery regulations violations, which at the Company’s sole discretion entail an undue financial, reputational, operational, strategic or regulatory risk to the Company, whereupon all sums owing to the Company under the Agreement shall become immediately due and payable.
(g) With regard to the Compliance Breach, the Company shall be entitled to terminate this Agreement only if it has not been remedied by the date falling 60 (sixty) calendar days from such breach being notified by the Company.
19. Data Protection
(a) Personal Data. The Company and the Client acknowledge that, for the purposes of Data Protection Legislation, the Client may supply the Company, or the Company may collect and Process from the Client Personal Data. The Company shall use and collect this Personal Data to perform the Agreement under these conditions and inform other the Company business services. When the Client provides Personal Data to the Company, or authorizes the Company to collect Personal Data, acknowledges that the collection and submission of the data is the sole and exclusive responsibility of the Client and warrants that it has obtained all necessary consents and approvals from the applicable individuals that are necessary to permit the Company to provide the Services under the Agreement. The Client shall be the Data Controller in connection with this Personal Data.
(b) The Company shall:
(i) process Personal Data to the extent, and in such a manner, as is necessary for the performance of the Agreement and in accordance with the Company’s documented policies (including with regard to transfers of Personal Data outside the European Economic Area or the UK or to an international organization) and in compliance with the Data Protection Legislation and only for the specific purposes of performing its contractual obligations or otherwise as permitted by Data Protection Legislation;
(ii) take reasonable steps to ensure the reliability of the Company’s employees who have access to the Personal Data and that they have undertaken training in the laws relating to handling Personal Data;
(iii) use reasonable endeavors to assist the Client with reasonable requests in respect of its Personal Data held by the Company;
(iv) use reasonable endeavors to secure Personal Data and ensure it is reasonably accurate and up to date. the Company shall retain data in accordance with its policies and procedures for data retention.
(c) The Company and the Client acknowledge that, for the purposes of Data Protection Legislation, the Company may supply the Client with Personal Data during the course of performing the Agreement. The Client shall be the Data Processor in connection with this Personal Data.
(d) Notwithstanding any other right or obligation arising under this Agreements, the Client shall:
(i) take all technical and organizational measures to ensure a level of security appropriate to the risk and as necessary or desirable to ensure that such Personal Data is protected against loss, destruction and damage, and against unauthorized access, use, modification, disclosure or other misuse;
(ii) process the Personal Data provided by the Company only to the extent, as is necessary for the purposes specified in the Agreement;
(iii) keep a written record of any processing of Personal Data it carries out, containing all information required by Data Protection Legislation, and make this record available on request;
(iv) ensure the reliability of employees who have access to the Personal Data and shall ensure that:
(v) access to the Personal Data is limited to those employees who need access to the Personal Data to meet the Client’s obligations under the Agreement; and all employees are informed of the confidential nature of, and are subject to binding confidentiality obligations in respect of, the Personal Data;
(vi) only Process Personal Data on instructions from the Company (unless otherwise required to do so by European Union, Member State or UK law); have undertaken training in the laws relating to handling Personal Data; and are aware both of the Client’s duties and their personal duties and obligations under such laws and the Agreement;
(vii) not disclose Personal Data to any third party without the written authority of the Company;
(viii) promptly comply with any request from the Company to amend, transfer or delete Personal Data;
(ix) assist the Company in ensuring compliance with its security, data breach notification, impact assessment obligations;
(x) contribute to audits and inspections to demonstrate the Client’s compliance under this Clause;
(xi) process Personal Data in compliance with all Data Protection Legislation and shall not do or omit to do anything which causes the Company to breach any Data Protection Legislation or contravene the terms of any registration, notification or authorization under any Data Protection Legislation of the Company;
(xii) not transfer Personal Data outside the European Economic Area or the UK without the prior written consent of the Company (such consent the Company may in its absolute discretion prescribe).
(e) The Client shall notify the Company immediately if:
(i) it receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data or to either Party’s compliance with Data Protection Legislation and/or the data protection principles set out therein;
(ii) in the Client’s opinion, any instruction given by the Company to the Client infringes Data Protection Legislation;
(iii) it becomes aware of a breach of this Clause or if it becomes aware of any suspected or detected (actual or potential) breach of security, unauthorized/unlawful processing, compromise, loss, destruction, damage or corruption of the Company Data.
(f) Taking into account the nature of the processing, the Client shall assist the Company with fulfilling its obligations in respect of Data Subject rights under Data Protection Legislation.
(g) The Client may only authorize a third party (sub-contractor) to Process the Personal Data:
(i) subject to the Company’s prior written consent;
(ii) provided that the third party is subject to a contract on terms the same as set out in this Clause;
(iii) provided that, if the third party fails to fulfil its obligations referred to in this Clause, the Client shall remain fully liable to the Company for the performance of the third parties obligations; and
(iv) provided that the third parties contract terminates automatically on termination of these.
(h) The Client and the Company undertake to comply with its obligations under the relevant applicable Data Protection Legislation.
(i) Information about how and for what purposes the Company collects, uses, retains, discloses and safeguards Personal Data is set out in the Chapman Freeborn Privacy Notice which can be found at https://www.chapmanfreeborn.aero/en/privacy-policy/ or can be obtained by contacting email@example.com.
20. Governing Law and Jurisdiction
(a) The Agreement, and all non-contractual matters associated with, arising out of or connected with it, shall be governed by and interpreted in accordance with English law.
(b) All disputes between the Parties arising out of or relating to the Agreement shall be referred, firstly, to the Parties’ respective Directors for resolution. If having been so referred, the dispute is not resolved within a maximum of thirty (30) days as of its written notification to the other Party’s Director, such dispute shall be referred to arbitration in accordance with the below clause.
(c) If not resolved pursuant to the above clause, any dispute arising out of or in connection with the Agreement, including any dispute on its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules. The number of arbitrators will be one, acceptable to both Parties and failing an agreement on name of such Arbitrator, the sole Arbitrator, shall be appointed by LCIA. The place of arbitration shall be London. The English Language shall be the language of arbitration and used throughout the arbitration proceedings.
(a) The Agreement sets forth the entire agreement and understanding between the Parties and no variation of the Agreement shall be effective unless agreed in writing by both Parties. Any representation, statement, warranty or other undertaking whether made orally or written elsewhere which is not fully reflected in the Agreement is hereby excluded (including where such representations or statements were made negligently) provided always that this Clause shall not exclude or limit any liability or any right which any Party may have in respect of pre-contractual statements made or given fraudulently.
(b) All conditions, warranties of other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
(c) The doctrine of contra proferentem shall not apply to the Agreement. If an ambiguity exists in the Agreement, or in a specific provision, neither the Agreement nor the provision shall be construed against the Party who drafted the Agreement or provision.
(d) If any term or condition of the Agreement shall to any extent be invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and each of the remaining terms and conditions shall be valid and enforceable to the fullest extent permitted by law. Such invalid or unenforceable provision will be replaced by a provision which lawfully enforces the Parties’ intention underlying the invalid or unenforceable one and which comes as close as possible to the commercial meaning and purpose of such provision.
(e) In the event of any conflict or inconsistency among the following documents which form the Agreement, the order of precedence will be: (1) Confirmation (as the case maybe, final quotation accepted by the Client or the Courier and Express Services Agreement signed by the Parties), (2) any schedule, addendum or annex agreed by the Parties, and (3) these GTCs.
(f) The Client shall not be entitled to assign, novate, deal with or transfer any of its rights or obligations under the Agreement without the prior written consent of the Company.
(g) The Company shall be entitled to assign, novate, subcontract on any terms whatsoever, deal with or transfer any of its rights or obligations under the Agreement without approval.
(h) No failure or delay by either Party in exercising any of its rights shall operate to any extent as a waiver of such rights or preclude any further exercise of its rights.
(i) Save as expressly stated otherwise, no provisions of the Agreement constitute a stipulation for the benefit of a third party. A person who is not a party to this Agreement shall not have any rights under this Agreement.
(j) The Agreement may be executed in two or more separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(k) Nothing in the Agreement or in the conduct of business between them shall be construed to create or constitute a relationship of partnership or joint venture between them.
(l) All notices provided for in this Agreement shall be in writing, and shall be sent to the following email address: firstname.lastname@example.org.