TERMS AND CONDITIONS OR INDISTINCTLY “T&C”
THESE TERMS AND CONDITIONS WILL APPLY TO ALL AND ANY RELATIONSHIP, RENDERING OF SERVICES AND AGREEMENT BETWEEN SCHENKER INTERNATIONAL, S.A. DE C.V. (HEREINAFTER THE “COMPANY”) AND ANY CLIENT (HEREINAFTER THE “CLIENT”)
CLAUSES
FIRST.
CLIENT grants and confers in favor of the COMPANY, a commercial commission and/or CLIENT appoints, designates and authorizes the COMPANY as its commercial agent. Likewise, COMPANY accepts the commercial commission and/or agency.
1. The commercial commission will consist on contracting on CLIENT’s behalf and risk, the transportation and other required, auxiliary and related services and supplies related to said transportation, such as among others: handling, deposit, warehousing, custom agent services, loading and unloading of merchandise and/or services of cargo agents, the above with Mexican individuals and/or legal entities and with foreign individuals and/or legal entities. The COMPANY may perform the commission on its own name or under the name of principal (CLIENT) in accordance to article two hundred and eighty three of the United Mexican States Commercial Code.
2. The commercial agency will consist on being a simple intermediary between CLIENT and any transporter and with any service provider and rendered of auxiliary and related services, such as, among others and not being exhaustive: service providers related with the handling, deposit, warehousing, loading and unloading of merchandise with any cargo agent and/or any custom agent both Mexican or foreign.
(hereinafter jointly referred the above mentioned commission and/or agency as the “ACTIVITIES”).
The Parties agree that the ACTIVITIES and obligations of the COMPANY shall not consist nor are, among others and without being exhaustive:
A. Carriage, freight and/or transfer merchandise from one place to another;
B. Send merchandise to a destination;
C. Import, export and/or warehouse merchandise;
D. Perform custom acts, proceedings and clearances, as well as official proceedings;
E. Stow, receive and/or deliver merchandise and/or
F. Keep deposit and custody of merchandise.
The obligations of the COMPANY are solely to contract on CLIENT’s behalf and risk and/or simple to intermediate between CLIENT and third parties, in this latter case, specially, among others and without being exhaustive, with custom agents.
SECOND.
Likewise, CLIENT expressly authorizes and empowers the COMPANY:
1. To contract on CLIENT’s behalf and risk all kind of transportation, including among others, ground, railroad, air and/or maritime, as well as any other auxiliary and related services and supplies, such as among others and without exhaustive: handling, merchandise deposit under any modality, cargo agents and custom agents, loading and unloading of merchandise and/or warehousing, the above with any third party that the COMPANY deems convenient, that is, with any person elected by COMPANY, as well as to agree, on CLIENT’s behalf and risk any term and condition applicable to the respective contracts, agreements and/or understandings, with, among others and not in an exhaustive manner carriers, freighters, stowers, custom agents, cargo agents, service providers and/or warehouse operators.
2. To act as agent (intermediary) between CLIENT and any person or third party, including with any transporter and auxiliary and related service providers such as, among others and without being exhaustive: service providers related to handling, deposit of merchandise under any modality, warehousing, loading and unloading of merchandise, with any cargo agent and/or with any custom agent.
All the above in the understanding that the authorizations and empowerments foreseen in this clause SECOND shall not mean that the COMPANY acts or will act in its own name, since at all times COMPANY will act and will be acting on CLIENT’s behalf and risk and/or will be simply connecting (intermediating) third parties with CLIENT in order for CLIENT and these third parties to directly perform different acts, operations, transactions and/or businesses.
Under the provisions of numeral 1 the above of this clause SECOND, it is agreed that all contracts, agreements and/or understandings that the COMPANY executes with third parties, specially with, transporters, freighters, stowers, cargo agents, custom agents, service providers and/or warehouse operators in the performance of the ACTIVITIES, will be executed on CLIENT’s behalf and risk, being at all time those third parties, specially transporters, freighters, stowers, cargo agents, custom agents, service providers and/or warehouse operators the sole direct responsible for the fulfillment of those contracts, agreements and/or understandings towards CLIENT.
THIRD.
In order for the COMPANY to be able to perform its ACTIVITIES, CLIENT shall timely and properly provide to the COMPANY all necessary documents and information for such purpose. All the information and documents that CLIENT provides to the COMPANY shall be accurate, correct and true. CLIENT shall be responsible for the information and documents that provides to the COMPANY, including among others and without being exhaustive of their accuracy, correction and truthfulness.
CLIENT shall pay to the COMPANY the corresponding compensations for its services, compensation to which the applicable indirect taxes shall be added, including the corresponding value added tax.
FOURTH.
The COMPANY reserves the right to perform any of the ACTIVITIES when, among others and without being exhaustive the following merchandise is directly or indirectly involved, money, precious metals and/or jewelry, credit titles, animals, plants, perishables, documents and/or goods with an intrinsic value and hazardous, dangerous, harmful to health, flammable, explosive substances and/or substances susceptible of causing damage to a person and/or third party.
The CLIENT guarantees the COMPANY that its activities, operations and/or resources are lawful and of lawful provenance.
FIFTH.
Except that the COMPANY at its own discretion grants CLIENT credit, credit that if applicable will consist in granting to CLIENT a term for paying any invoice issued by the COMPANY, credit that in any event shall be subject to the limits fixed by the COMPANY (hereinafter referred to as the “CREDIT”), CLIENT shall provide to the COMPANY in advance, the necessary and sufficient funds for the performance of the ACTIVITIES.
Regardless and in addition to the above, CLIENT shall pay or reimburse to the COMPANY, as the case may be, any expense that it is made or incurred for the performance of the ACTIVITIES, specially when the COMPANY, if applicable, has granted to the CLIENT CREDIT. Any CREDIT shall be formalized in writing.
If due to any cause the COMPANY grants CREDIT to the CLIENT or simply deems convenient to pay any amount that in accordance to the nature of the ACTIVITIES or these T&C CLIENT shall pay, CLIENT shall reimburse or pay to the COMPANY, as the case may be, any amount paid by the latter, the foregoing, within ten calendar days following the in which CLIENT is requested to reimburse and/or pay, as the case may be, being understood and assumed as payment requirement by the COMPANY, among others and without being exhaustive, the delivery of any invoice issued by it.
In case CLIENT delays on the reimbursement and/or payment of any amount in favor of the COMPANY, as the case may be, CLIENT shall pay to the COMPANY late interests at the rate of 3.5% (three point five percent) per month over the due balance plus the respective value added tax.
SIXTH.
If CLIENT does not timely and properly provide to the COMPANY the information and/or documents that the latter needs or that the COMPANY requests the CLIENT at any time in order be able to perform the ACTIVITIES, specially related with descriptions, weight, amounts, numbers, nature and other merchandise specifications, special instructions as for example if the merchandise requires specially temperature, guidelines and declarations, the COMPANY may, but shall not be obligated to perform or carry out the ACTIVITIES; may abstain itself to perform and carry out the ACTIVITIES and/or may suspend the ACTIVITIES, all the above without any responsibility for the COMPANY. The simple late delivery by CLIENT of information and/or documents referred to in this paragraph shall be sufficient cause in order for the COMPANY not to be obligated to perform the ACTIVITIES, but if due to any reason at its sole discretion the COMPANY decides to render and/or resume the ACTIVITIES, CLIENT shall be the sole responsible of all derived and/or triggered as a result of the late delivery of the corresponding information and/or documents. CLIENT shall be the unique and sole responsible of the proper wrapping and packing of the merchandise and expressly acknowledges that the merchandise is loaded and counted by CLIENT being then CLIENT the sole responsible for such acts. The wrapping and packing of the merchandise: shall be resistant and shall be properly signalized, numbered and shall bear any necessary and or convenient warning; shall be made in such a manner that the merchandise cannot be accessed without leaving physical print, and shall comply with all applicable legislation, including if applicable the respective norms. Likewise, CLIENT shall be the sole responsible of the filling out and of providing to the competent corresponding authorities the origin certificates, including among others and without being exhaustive the EUR 1.
SEVENTH.
CLIENT expressly authorizes and empowers the COMPANY to act, among others and without being exhaustive, on behalf of CLIENT in the hiring of transportation, including under the modality “freight to be collected” and/or “payable freight” and/or payment by third parties internationally known in the English language as “third party billing”. In these cases: (a) the person that shall pay under any of these modalities shall be understood for all legal purposes as client of the COMPANY being applicable these T&C (hereinafter the “THIRD PAYOR”) and (b) regardless and in addition, CLIENT shall be jointly liable in favor of the COMPANY with respect to all and each of the obligations of the THIRD PAYOR.
EIGHT.
CLIENT consents that the COMPANY shall not be responsible for acts imputable to third parties, including among others and without being exhaustive acts of: transporters, freighters, stowers, custom agents, cargo agents, service providers and/or warehouse operators, nor toward authorities, specially custom and/or of port, with respect to which the COMPANY has acted as commissioner and/or agent of CLIENT in the rendering of any of the ACTIVITIES. CLIENT consents that the commissioned and/or intermediated custom agents in accordance to the ACTIVITIES shall be the sole responsible of the calculation of any tax, governmental right and/or contributions related with the rendering of as custom agent services.
NINTH.
CLIENT consents that the COMPANY shall not be obligated to contract any insurance either directly and/or on CLIENT’s behalf and risk, unless all the following is fulfilled:
1. That the CLIENT has previously and expressly instructed in writing to the COMPANY of the hiring, clearly specifying the kind of insurance, amounts to be insured and/or risks to be covered as well as any other necessary information for the contracting.
2. That CLIENT has stated to the COMPANY in writing the value of the merchandise, and
3. That the CLIENT has advanced to the COMPANY all the necessary funds to contract the insurance.
CLIENT consents that transporters and/or freighters with whom the COMPANY executes contracts, agreements and/or understandings on CLIENT’s behalf and risk derived from any of the ACTIVITIES, shall not be obligated to insure the merchandise against any event and/or risk, including among others and without being exhaustive against any damage, destruction, loss, deterioration, mishandling, indirect damage, fire, risk, robbery and/or lost of merchandise due to any cause.
Likewise, CLIENT acknowledges and agrees that the responsibility of transporters, freighters and/or other service providers with whom the COMPANY executes contracts, agreements and/or understandings on CLIENT’s behalf and risk derived from any of the ACTIVITIES, in the best case, it is limited and/or subject to certain limitations, specially among others and without being exhaustive in accordance to the transporters’ bill of ladings, forwarding certificates, documents, and air bills that generally and commonly they use, and in accordance to maximums of liability foreseen in several laws and legal bodies, including if applicable the respective International Agreements and/or Treaties, and that in addition, transporters, freighters and/or other service providers with whom the COMPANY executes contracts, agreements and/or understandings on CLIENT’s behalf and risk derived from any of the ACTIVITIES, do not guarantee a delivery date for the merchandise.
TENTH.
In virtue of the nature of the ACTIVITIES, the Parties agree that the COMPANY will not be responsible for, among others and without being exhaustive: losses, damages, robberies, indirect damages, lost, mishandling, deterioration and/or destruction of merchandise; for the delay or retardation in its delivery or for the non fulfillment of the contracts, agreements and/or understandings in which the COMPANY has acted as commissioner and/or agent of CLIENT derived from any of the ACTIVITIES, specially among others and without being exhaustive for the non fulfillment of the transporters, freighters, custom agents, cargo agents, stowers, service providers and/or warehouse operators. In case of any claim or legal action that CLIENT pretends to file or has filed against among others and without being exhaustive any transporter, freighter, custom agent, cargo agent, stower, service provider and/or warehouse operator, the COMPANY, prior written request by CLIENT, will provide CLIENT a simple copy of the documents under its possession.
CLIENT may directly contract the insurance that protects and insures the merchandise against any risk and event. In case the insurance company is subrogated in the CLIENT’s rights with the purpose of making demandable and/or enforceable its rights against third parties with whom CLIENT executed any understanding, contract and/or agreement through the rendering of any of the ACTIVITIES performed by the COMPANY, prior written request from CLIENT and/or the insurance company, COMPANY will provide a simple copy of the documents under its possession, without implying for the COMPANY additional responsibility than the one foreseen in these T&C.
ELEVENTH.
The payment obligations that CLIENT assumes with the COMPANY for the ACTIVITIES, may not be compensated by CLIENT without the prior written consent of the COMPANY, therefore CLIENT expressly waives its set-off right, without prior written consent from the COMPANY.
TWELFTH.
For purposes of these T&C, CLIENT and the COMPANY agree that an Act of God or force majeure will include and cover any human act or natural event, foreseeable or unforeseeable but unavoidable, that unable the person who suffers it to comply with its obligations. Except for any payment obligation of CLIENT, which shall be fulfilled even in case of an Act of God or force majeure, the COMPANY and CLIENT shall not be obligated to fulfill its obligations if the impossibility of compliance is consequence or derived from an Act of God or forcer majeure.
THIRTEENTH.
The COMPANY and CLIENT expressly agree to limit the COMPANY’s civil responsibility for losses, damages and/or indirect damages, including derived from the non-fulfillment by COMPANY of its obligations, to the maximum accumulated amount of five hundred times Unidades de Medida y Actualización (UMAS).
FOURTEENTH.
CLIENT accepts and consents that these T&C will apply to all and any relationship, rendering of services and/or agreement between the COMPANY and CLIENT.
The Parties agree, that among others and without being exhaustive, by the simple fact that CLIENT instructs the COMPANY in any manner, including among others and without being exhaustive: by electronic mail, by fax, by telephone, back and forth radio communication, verbally, in person and/or by any other electronic means; if CLIENT provides information and/or documents to the COMPANY; if CLIENT advances funds or makes a payment of money to the COMPANY; if CLIENT performs any act related with the ACTIVITIES; if CLIENT delivers merchandise to any third party commissioned or intermediated by the COMPANY through any of the ACTIVITIES; if CLIENT requests to the COMPANY the performance of any action and/or if the COMPANY performs any proceeding at CLIENTS’ request, it shall be understood that CLIENT expressly accepted and consented for all legal effects these T&C.
The COMPANY may at any time terminate in advance, any relationship and contract it has with CLIENT, without cause and for convenience by giving a simple written notice to CLIENT at least fifteen calendar days in advance of the effective date of termination.
CLIENT expressly authorizes the COMPANY to use the personal data that CLIENT may provide to the COMPANY: (a) to provide the ACTIVITIES and/or (b) for purposes foreseen in the Privacy Notice of the COMPANY. The handling of personal data will be regulated by the Privacy Notice of the COMPANY.
FIFTEENTH.
The Parties agree that these T&C shall prevail over any other document, even if issued by the COMPANY, unless there is a written express partial or total waiver by the COMPANY, waiver that shall be documented in writing and signed in original by an authorized representative of the COMPANY. Except if expressly foreseen otherwise in these T&C, the Parties agree that among others, the telefax and electronic mail shall be a valid means of communication.
SIXTEENTH.
CLIENT expressly authorizes to the COMPANY to subcontract, partially or totally with any third party its obligations, and in addition, CLIENT expressly authorizes and empowers the COMPANY to delegate in favor of any third party, either partially or totally, the faculties that CLIENT grants and/or gives to the COMPANY.
SEVENTEENTH.
The ACTIVITIES and these terms and conditions shall be governed by the laws of the United Mexican States. In case of any controversy and/or dispute derived from the ACTIVITIES and these terms and conditions, the Parties expressly agree to submit themselves to the jurisdiction and competence of the Courts of Mexico City, Federal District, United Mexican States, expressly waiving any other jurisdiction and competence that in virtue of their current or future domiciles or due to any other cause they may have.