GENERAL TERMS AND CONDITIONS IN THE PERFORMANCE OF FORWARDING ACTIVITIES
(„General Terms and Conditions“)
- Validity of Terms and Conditions
1.1 These General Terms and Conditions regulate the relations between the Forwarding Agent and the Client in the performance of Forwarding Activities when the domestic or foreign Client orders the performance of Forwarding Activities from the Forwarding Agent and when the parties invoke the application thereof.1.2 These General Terms and Conditions apply to all Forwarding Activities as an integral part of the forwarding contract, unless the Forwarding Agent and the Client explicitly exclude the application thereof.1.3. Should the provisions of individual forwarding contracts differ from the General Terms and Conditions, the provisions of the respective forwarding contract will apply.
means the company Liburnia pomorska agencija d.o.o., with the registered office in Opatija, V. Cara Emina 3, register number (MBS): 040206198, personal identification number (OIB): 69441170749, which, for the purpose of organising the transport of certain Objects in its own name and on behalf of the Client or in the name and on behalf of the Client, performs the Forwarding Activities against compensation and for this purpose executes the forwarding contract with the Client.Client means any person at whose order and on whose behalf the Forwarding Agent performs the Forwarding Activities and who has a duty to pay the fee to the Forwarding Agent specified by the forwarding contract for the performance of such activities.
User means Client or some other person that has the rights and obligations under the forwarding contract or on the basis of any activity or service undertaken or performed by the Forwarding Agent.Forwarding Activities mean professional services by which the Forwarding Agent realizes and protects the interests of the Client with respect to the transport of the Client’s Objects, as well as transactions and activities for the purpose of organising transport, such as the execution of the transport agreement, provision of professional advice and participation in negotiations in relation to the execution of sales agreement for the purpose of coordination thereof with the transport, insurance, customs matters, finding of the most suitable transport routes and clauses to be applied in the international sale and international transport of goods for the purpose of protecting the interests of the Client, organisation of the collective transport, organisation of the multimodal and integral transport of goods and physical „door to door“ distribution of objects, execution of loading, unloading, reloading, sorting, packaging agreements and agreements on the performance of other similar services, execution of goods storage agreements and goods storage, execution of goods insurance agreements, representation and performance of activities in relation to the goods clearance (customs representation), sample collection, determination of goods quantities without issuing certificates, participation in charging the delivered goods, issue of forwarding certificates and other forwarding documents, issue or obtainment of transport and other documents, control of the calculations in transport documents and the calculation of transport and other costs, undertaking of indemnification measures in case of loss, damage or delay in the delivery of goods, obtainment of transit permits and other documents, as well as other common forwarding activities performed for the purpose of forwarding.Object or Goods or Shipment or Cargo means any subject- matter of the forwarding contract, including live animals, containers, pallets etc., which has not been supplied by the Forwarding Agent.Carrier means any person registered for the performance of carriage and that performs the carriage of Objects (Carrier performing the carriage) and any other person that undertakes under the agreement to perform the carriage against compensation and that is responsible for the carriage although such person does not actually perform the carriage of Objects (Contracting Carrier).Performer means any person that performs any other service for the purpose of carriage of Objects for the performance of which such person was registered (Service Performer) and any other person that undertakes under the agreement to perform any other service for the purpose of carriage of Objects against compensation and that is responsible for the performance of such service although such person does not actually perform such service (Contracting Performer).
Written Form includes communication by telegram, telex, fax, email or any other communication that provides for written evidence of communication, whether it has been signed by the parties or not.
SDR means Special Drawing Rights, as defined by the International Monetary Fund.
Valuables mean valuable Objects such as gold bullions, money, gold coins, securities, gemstones, jewellery, antiques, paintings, works of art, etc. In case of doubt, the Objects will be considered Valuables.
Dangerous Objects mean Objects that are officially classified as dangerous, or objects that are or can become flammable, radioactive or dangerous, or that can endanger the safety of persons and goods or cause damage. In case of doubt, the Objects will be considered Dangerous Objects.
Mandatory Rule means rule or provision that has to be applied.
3.1 The offer of the Forwarding Agent includes only the Forwarding Activities that are explicitly specified therein and is valid only until the deadline specified for the acceptance thereof.3.2 The offer in form of an aggregate amount for all Forwarding Activities (fixed fee) is valid according to the circumstances existing at the moment at which the offer was made.3.3 Forwarding Activities and the costs that are not included in the fixed fee specified in the offer will be paid to the Forwarding Agent separately by the Client.3.4 The Client cannot transfer the accepted fixed fee for the Forwarding Activities to another User without the consent of the Forwarding Agent.
- Order (instructions)
4.1 The Forwarding Agent will perform the Forwarding Activities on the basis of the Client’s order or instructions.4.2 The order will contain all necessary information about the Goods and its characteristics, as well as the correct instructions and other data necessary for the correct and timely performance of Forwarding Activities.4.3 The Client will notify the Forwarding Agent of the characteristics of Dangerous Objects and that the Shipment contains Valuables, as well as inform the Forwarding Agent about the value thereof at the moment of delivery for the purpose of forwarding.4.4 The Forwarding Agent will comply with the Client’s order.4.5 The Client will notify the Forwarding Agent if the Client’s rights under the forwarding contract are transferred to another User.
4.6 The Forwarding Agent is responsible towards another User within the scope of its obligations against the original Client, unless otherwise specified.4.7 After the Forwarding Agent has been given an order, the Forwarding Agent is deemed to have been authorised for the payment of carriage, fees and other costs.
4.8 The order is generally given in writing. An order given verbally or by phone has to be confirmed in writing; otherwise, the Forwarding Agent will not be responsible for any harmful consequences.
4.9 If the order is evidently incomplete, unclear or contradictory, the Forwarding Agent will timely request the necessary explanations from the Client.
4.10 If the Forwarding Agent is, with regard to the circumstances of the case, unable to obtain the necessary explanation, and the case cannot be delayed, the Forwarding Agent will act with diligence of a prudent businessman, protecting the interests of the Client, as well as notify the Client thereof without delay.
4.11 The Client will timely deliver to the Forwarding Agent all documents necessary for the performance of the order.
4.12 The Client will suffer all consequences due to the incorrect, incomplete, unclear, contradictory or delayed order and/or documents necessary for the performance of Forwarding Activities.
4.13 If the Client changes the order, the performance of which has already commenced, the Forwarding Agent will act in accordance with the changed order if possible, without being responsible for the consequences of the order change.
- Acceptance and Delivery of the Goods
5.1 The Forwarding Agent is deemed to have accepted the Goods at the moment of taking over the Goods for the purpose of forwarding.5.2 The delivery of the Goods is deemed to have been made at the moment of delivery of the Goods to the Carrier.5.3 The Forwarding Agent will, at the request of the Client, notify the Client of the progress of transport of the Client’s Goods.5.4 If the Client executed a contract for the transport of Goods by sea, the Client will also stipulate the loading and unloading requirements that are common in the respective ports.5.5 The Client will pay the costs incurred due to the fact that the port organisation or the shipper failed to comply with the loading and unloading requirements that are common in the respective port.
5.6 The Client will pay the costs incurred due to the congestion of the port, piers, yards and collection stations and other traffic points, the lack of storage facilities, the lack of means of transportation, waiting of the ship at the port and other means of transportation at piers and railway stations, overtime work, waiting on holidays and non- working days, as well as work stoppage due to bad weather or other force majeure circumstances.5.7 The Forwarding Agent will not be responsible for notifications of the shipper and the shipper’s agent about the ship progress and arrival or for the notifications of other carriers.
5.8 The Forwarding Agent will verify the data in relation to the ship operation and will be responsible for such data.
5.9 Upon the receipt of the order, the Forwarding Agent will not inspect whether there are legal or other impediments to the forwarding of the Goods and whether there are any import, export or transit restrictions etc.; therefore, any costs that might be incurred due to these reasons will be paid by the Client.
6.1 The Forwarding Agent has a duty to insure the Goods only if it has been explicitly agreed, unless mandatory insurance is regulated by the Mandatory Rules.6.2 Unless the risks to be insured are specified by the agreement, the Forwarding Agent will insure the Goods against common risks.6.3 For the avoidance of doubt, the specification of value of the Goods in the Client’s order or declaration that the Goods are Valuables will not be considered an insurance order, and the insurance of specific Goods will not create an obligation of the Forwarding Agent to insure all other or subsequent Goods of the same Client.6.4 The Forwarding Agent will maintain professional liability insurance in relation to the Client.
- Acting According to the Client’s Instructions
7.1 The Forwarding Agent will follow the instructions regarding the route direction, means and the way of transport, as well as other instructions received from the Client.7.2 If the Client’s instructions are unclear, incomplete or not in compliance with the agreement, the Forwarding Agent is authorised to provide the Forwarding Agent’s services in the way required by the Client’s interests in the given circumstances and with diligence of a prudent businessman.7.3 The Forwarding Agent will notify the Client of the situation referred to in the previous paragraph within reasonable time, whereas the Client will bear all risks and costs of such forwarding of Objects.
- Hindrances to the Performance of the Order
8.1 If the Forwarding Agent is at any time unable to perform the Forwarding Agent’s services or if it is likely that the services cannot be performed due to any hindrances or risks (including the characteristics and status of Goods) that were not caused by the fault or gross negligence of the Forwarding Agent and that could not have been avoided with reasonable efforts, the Forwarding Agent is authorised to discontinue the provision of services and, if reasonably possible, deliver the Goods or part of the Goods to the User at the place considered appropriate and safe by the Forwarding Agent, upon which the Goods will be considered to have been delivered and the obligations of the Forwarding Agent will cease.8.2 In the case referred to in paragraph 1 of this Article, the Forwarding Agent will be entitled to the fee stipulated by the agreement, as well as the reimbursement of costs incurred to the hindrances referred to in paragraph 1 of this Article.
- Fee for the Performance of Forwarding Activities and Reimbursement of Costs
9.1 The Forwarding Agent will be entitled to a fee for the performance of Forwarding Activities, as well as the reimbursement of costs incurred during the performance of the order.9.2 The fee will generally be stipulated by the agreement on forwarding of Objects.9.3 The Client’s obligation against the Forwarding Agent will remain even after the Client has instructed the Forwarding Agent to exercise the Forwarding Agent’s right to the fee and reimbursement of costs against third persons.9.4 The Forwarding Agent can request the reimbursement of costs immediately upon the incurrence thereof during the performance of the order.9.5 The Client will, at the request of the Forwarding Agent, timely advance to the Forwarding Agent the costs required for the performance of the order. Otherwise, the Forwarding Agent is authorised to discontinue the performance of the order until such costs have been advanced, whereby the Client alone will face the harmful consequences due to the failure of the Client to advance the costs.
9.6 Should the Client withdraw the given order, the Client will pay to the Forwarding Agent the fee for the Forwarding Activities that have already been performed and reimburse the costs that have already been incurred.9.7 In case of services rendered to a foreign Client, the Forwarding Agent will be entitled to a fee for the performed Forwarding Activities and the reimbursement of the incurred costs in the currency of the country in which the registered office of the Client is located or in some other currency, if agreed so between the parties.
9.8 The invoice of the Forwarding Agent is payable within eight days upon the issue thereof, unless otherwise specified.
9.9 Objections to the invoice will be raised within the same period.
9.10 If only one part of the invoice is disputed by the objection, the indisputable part of the invoice will be payable within eight days.
9.11 If the Forwarding Agent advances the Forwarding Agent’s funds during the performance of the Forwarding Activities, the Forwarding Agent will be entitled to a special compensation for the advanced funds, the amount of which will be determined pursuant to the agreement with the Client or pursuant to the tariff of the Forwarding Agent in the absence of such agreement.
- Liability of the Forwarding Agent
10.1 The Forwarding Agent will act with diligence of a prudent businessman during the performance of the order.10.2 The Forwarding Agent is liable for the selection of the Carrier and the selection of other Performers with which the Forwarding Agent executed agreements during the performance of the order, but is not liable for their work, except in the following cases: (i) if the Forwarding Agent performs the carriage by himself or performs any other service stipulated in the performance of the order; (ii) if the Forwarding Agent assumed such liability under the agreement; (iii) if the forwarding includes the aggregate (fixed) fee (Liability in the Capacity of the Carrier and/or Performer).10.3 The Forwarding Agent is liable for the work of another Forwarding Agent entrusted with the performance of the order, unless: (i) the Forwarding Agent was explicitly or tacitly authorised to entrust another Forwarding Agent with the performance of the order; or (ii) it is in the obvious interest of the Client.10.4 All carriers and other contractors are obliged to adhere to following requests while conducting their business in order to reduce the chance of negative effects on the quality of the services provided, environment as well as health and safety of the workers:a) All vehicles and other equipment which carriers or their acting party use must be in proper condition. Carriers and their acting parties are personally responsible for the technical proper operating condition of their vehicles and assuring safe work conditions with all equipment used when conducting business.
b) All carriers and acting parties are obliged to use proper safety clothing and footwear as well as equipment when conducting business
c) All carriers and acting parties promise to act according to safety regulations
d) All carriers and acting parties must not damage the quality of service provided and all damages or harmful effects must be immediately reported to person in charge in Liburnia Maritime Agency
e) All carriers and acting parties are responsible for disposal of trash, materials and equipment they have used and leave the work area clean, safe and ready for further usage
f) All carriers and acting parties which are in contact with any oils, lubricants or gasoline, must make precautions to prevent uncontrolled spilling and pollution of soil and water
g) Each action of decanting, lubricating and similar actions which include oils, lubricants or gasoline must be performed in controlled conditions, on adequate areas and with adequate equipment
h) All carriers and acting parties working for, or on behalf of Liburnia Maritime Agency must leave environment clean of any garbage, trash and similar harmful mass
i) All carriers and acting parties are obliged to sort, separate and dispose garbage as according to instructions received from person in charge
j) All carriers and acting parties working for, or on behalf of Liburnia Maritime Agency must comply with guidelines set by these request
k) All carriers and acting parties must inform all their employees, drivers, subcontractors and others who will be performing business in their name about instructions set by these guidelines.
In case the carrier or acting party does not adhere to these guidelines and does not follow rules set by person in charge, they will be removed from the place of work, and if deemed necessary, business contact with that party will be terminated.
- Exclusion and Limitation of Liability of the Forwarding Agent
11.1 Exclusion of Liability of the Forwarding Agent:Unless otherwise specified by the Mandatory Rules, the Forwarding Agent will not be liable for:a) Valuables and Dangerous Objects if the Client failed to notify the Forwarding Agent of the special features and characteristics/value of the Goods, and the Forwarding Agent was not and could not be aware of such special features and characteristics/value of the Goods;b) loss or damage to the Goods caused during the time when the Goods were not in the possession or under control of the Forwarding Agent;c) damage/loss caused by delay, including but not limited to the damage/loss on the Goods and indirectc/onsequential damage/loss, unless the Forwarding Agent assumed such liability under the agreement in writing;
d) loss of profit and any indirect/consequential damage/loss;
e) weight, volume, quality, contents and value of the Goods;
f) damage/loss caused by force majeure;g) incorrectly calculated carriage, as well as customs duties and other public charges;
h) other damage/loss, if the liability of the Forwarding Agent is excluded pursuant to the regulations.
11.2 Limitation of Liability of the Forwarding Agent:
Unless otherwise specified by the Mandatory Rules, the liability of the Forwarding Agent will in any case be limited as follows:
a) Limitation in case of loss of or damage to the Goods The Forwarding Agent will not be liable for any loss of or damage to the Goods in the amount exceeding the equivalent of 2 SDR per kilogram of gross weight of the damaged or lost Goods, unless the Forwarding Agent manages to compensate a higher amount of the damage from the persons whose acts/omissions the Forwarding Agent is liable for.
b) Limitation in case of delay If the Forwarding Agent is liable for the damage caused by delay, such liability will not exceed the amount of the fee stipulated for the performance of services that caused the delay. Due to the nature of the involved services, Liburnia cannot guarantee specific delivery dates. In the hypothesis that a delay can be directly attributed to a specific proven fault and/or negligence on Liburnia’s behalf in respect of a matter under full control of Liburnia, any potential (delay) liability of Liburnia for a proven actual loss directly incurred by its customer, will be limited to 10% of the agreed relevant contract price with an absolute maximum of EUR 5,000 per event and an annual maximum of in total EUR 25,000. Liburnia is never liable for delays caused by force majeure events nor for any indirect or consequential delay.
c) Limitation in case of other damage In case of any damage/type of loss that is not referred to in item a) and b) of this Article, the Forwarding Agent will not be liable for the amount exceeding the equivalent of 25.000 SDR per each harmful event, unless the Forwarding Agent manages to compensate a higher amount of the damage from the persons whose acts/omissions the Forwarding Agent is liable for.
11.3 The Client will indemnify, defend and hold harmless the Forwarding Agent (including the Forwarding Agent’s management board members, employees, performers and other service providers) from and against any and all claims, demands, suits, damages, liability, losses, costs and expenses, including attorney’s fees, caused due to, or in relation to, or arising directly or indirectly from the performance of any Forwarding Activity due to the violation by the Client or other Users of their warranties, representations, covenants and obligations, unless the respective claims were caused by gross negligence or intent of the Forwarding Agent.
11.4 The Client warrants that the Client possesses the corresponding and adequate insurance for the coverage of claims or damage for which the Client is liable pursuant to these General Terms and Conditions. At the request of the Forwarding Agent, the Client will deliver a reasonable proof of such insurance.
11.5 Notwithstanding any other provision in these General Terms and Conditions the Forwarding Agent shall not be liable for any damage and/or delay in following instructions of the Client that result in the Carrier and/or Performer and/or Forwarding Agent having to undertake any of the Forwarding Activities and/or the carriage of Objects in any area, place or port where fever and/or epidemics and/or contagious disease are prevalent in the circumstances where such fever and/or epidemics are widely publicised. It will be the responsibility of the Client to maintain and up to date knowledge of the spread these fevers and/or epidemics and/or contagious disease and advise the Forwarding Agent of any issues with their instructions as soon as possible once they have been given. Should any other provision in these General Terms and Conditions conflict with this clause then this clause shall be considered paramount and as such will override any contrary provision.
Value of the Goods will be determined according to the market value of the Goods and, if the Goods do not have any market value, according to the usual price/value of the goods of the same kind and quality.
- Written Objection due to Damage on or Shortage of Cargo
13.1 Unless the recipient of the Cargo or other User submits a written objection due to the damage on or shortage of Cargo immediately upon the acceptance thereof, the Cargo will be deemed to have been delivered to the recipient as specified in the bill of lading or if no transport document has been issued – as accepted for transport.13.2 If the damage or shortage is not visible, the recipient/User can submit a written objection within three days upon the acceptance of the Cargo, unless otherwise specified by the Mandatory Rules.
- Retention and Pledge
14.1 For the purpose of securing the collection of the (current and past) claims of the Forwarding Agent against the Client, the Forwarding Agent is entitled to a pledge of Objects delivered for the purpose of forwarding and in relation to forwarding as long as the Objects are in the possession of the Forwarding Agent or as long as the Forwarding Agent possesses a document on the basis of which such Objects can be disposed of by the Forwarding Agent.14.2 If the Goods were placed on disposal of a third person/User or are to be delivered to a third person/User at the Client’s order, the Forwarding Agent can exercise the right to the pledge with respect to the claims against third persons only if such claims are connected to the Goods kept by the Forwarding Agent on the respective basis.
- Settlement of Disputes and Governing Law
15.1 Unless otherwise stipulated, in case of any disputes in relation to the performance of Forwarding Activities, the parties agree to refer to the competent court in the Republic of Croatia according to the registered seat of the Forwarding Agent. The Forwarding Agent and only the Forwarding Agent is also entitled to institute court or other official proceedings against the User before other competent courts or bodies in any other country.15.2 The business activity of the Forwarding Agent will be governed solely by the Croatian law, excluding the application of conflict of law rules.