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Terms
and Conditions
KeelyGroup Ltd. and Subsidiaries
IncludingKeely Express Ltd., Keely Shipping Ltd.
Freight International and Emergency FreightInternational Ltd.
StandardTradingConditions.
The Customer's attentionis drawn to the Clauses hereof which exclude or limit
the Companies's liabililyand those which require theCustomerto indemnifv the
Comoanies in certain circumstances.
DEFINITIONSAND APPLICATION 1 ln these Conditions:
"Companies' Keely Group Ltd., Keely Express Freight Ltd., Keely Shipping
International Ltd., Emergency Freight Intemational Ltd.
'Person" Includespersonsor any Body or Bodies Corporate.
"TheOwne/' MeanstheOwner of thegoods(includinganypackaging,containersor
equipment) to which any business concluded under these Conditions relates and
any other personwho is or may becomeinterested in them. "Customer' Means any
personat whoserequest or on whosebehalfthe Companies undertakes any businessor
providesadvice, information or services. 2 (A) Subject to Sub-Paragraph (B)
below, all and any activities of the Companies in the course of business
whethergratuitousor not are undertaken subject to these Conditions.
(B) lf anylegislationis compulsorily applicableto any business undertaken,
theseConditions shall, as regards such business, be read as subject to such
legislation and nothing in theseConditionsshall be construedas a surrenderby
legislation and if anypartofthese Conditionsbe repugnant to such legislation to
any extent such partshall as regards such buslness by overridden to that extent
and no further.
3 The Customer warrants that he is either the Owner or the authorisedAgentof
the Owner and also that he isacceptingthese conditions not only for himself but
also as Agent for and on behalf of the Owner.
4 In authorising theCustomerto enter into any Contract with the Companies
and/or in accepting any documentissued by the Companies in connection with such
Contract, theOwner and Consignee accept these Conditions forthemselvesandtheir
Agents andforanypartieson whose behalftheyor their Agentsmay act,and in
particular,but without prejudiceto the generalityof this Clause, they accept
that the Companies shall have the right to enforce against them jointlyand
severally any liability of the Customer under these Conditions or to recover
from them any sums to be paidby the Customerwhich uponproperdemandhave not
beenpaid.
THE COMPANIES 5 (A) Subjectto Clauses 13 and 14 below, the Companies shallbe
entitled to produceanyor all of its servicesas an Agent or to providethose
services as a Principal.
(B) The offerand acceptance of an inclusive pricefor the accomplishmentof any
service or services shallnot itself determine whether any such service is or
services are to be arranged by the Companies acting as Agent or to be
providedby the Companies acting as a Contracting Principal.
(C) When acting as an Agent the Companies does not make or purportto make any
Contract with the Cuslomer for the carriage,storage,packingor handling of any
goods notfor any other physical servicein relation to them and acts solely on
behalf of the Customer in securing services by establishingContracts with Third
Parties so that direct contractual relationships are established betweenthe
Customer and such Third Parties.
(D) The Companies shall on demand by theCustomerprovideevidence of any Contract
entered into as Agent for theCustomer,lnsofar as the Companies maybedefault of
this obligation, it shall be deemedto have contracted with the Customer as a
Principal for the performanceof the Customer's instructions.
6 When and to the extent that the Companies hascontractedas Principle for the
performanceof any ot its services, it undertakes to performand/orin its own
name to procurethe performanceof those services,and subject always to the
totality ofthese Conditions and in particularto Clauses 26-29 hereof accepts
liability for lossof or damages to goodstakeninto its charge occurring between
the time when it takes the goodsinto its charge and the time when the Companies
is entitled to call upon the Customer, Consignee or Owner to take delivery of
the goods.
7 When and to the extentthat the Companies has in accordance with these
Conditions is acting as an Agent on behalf of the Customer, the Companies shall
be entitled andtheCustomerherebyexpressly authorisesthe ComDanies to enter into
Contracts on behalf of the Customer:(
A) for the carriage of goodsby any route or means or person;
(B) for the storage, packing,trans-shipment,loading, unloading orhandling
ofthegoods byany person at any placeandforanylengthoftime:
(C) for the carriage or storage of goodsinor on transportunits as defined in
Clause 19 and with other goodsof whatever nature:and
(D) to do such acts as may in the opinion ofthe Companies be reasonably
necessaryinthe performanceof its obligations in the interest of the Customer. I
The Companies reserves to itself a reasonable liberty as to the means, route
and procedureto be followedin the handling, storage and transportation of
goods.
9 The Companies shall be entitled to performany of its obligations herein by
itself or by its parent, subsidiaryor associated Companies. In the absenceof
agreement to the contrary any Contractto which these Conditions apply is made
by theCompanieson its own behalf and also as Agent forand on behalfof any such
parent,subsidiaryor associated Companies,and any such Companies shall be
entitled to the benefit of these Conditions.
10(A) Subjectto Sub-Clause(B)hereof, the Companies shall have a generallien on
all goodsand documentsrelating to goodsin its possession,custodyor control for
all sums due at any time from the Customer or Owner, and shall be entitled to
see or dispose of such goodsor documents as Agentfor and at the expense of the
Customerand apply the proceedsin or towards the paymentof suchsums on 28 days
native in writing to the Customer. Upon accounting to the Customer for any
balance remaining afterpaymentof any sum due to the companies and the costs of
sale or disposalthe Companies shall be discharged ofany liability whatsoeverin
respect ofthegoodsor documents.
(B) When the goodsareliable to perishor deteriorate, the Companies's right to
sell or dispose of the goodsshall arise immediatelyup in any sum becoming dueto
the Companies subject only to the Companiestakingreasonable steps to bring to
the Customer's attention its intention of selling or disposingof the
goodsbeforedoing so. 11 The Companies shall be entitled to retain and be
paidall brokerages, commissions,allowancesand otherremuneralion' customarily
retained by or paidto Freight FoMarders.
12( \ lf deliveryof the goodsor any partthereof is not taken by the Customer,
Consig nee or Owner, at thetime and placewhen and where the Companiesis
entitled tocallupon such personto take deliverythereof, the Companies shall be
entitled to store the goodsor any partthereof at the sole risk of the Customer,
whereuponthe liability of the Companies is respect of the goodsorthatpart
thereof stored as aforesaid shall wholly cease and the costof such storage if
paidfor or payableby the Companies or any Agent or Sub-Contractor
shallforthwith upon demand by of the Companies paidby the Customer to the
Companies.
(B) The Companies shallbe entitled at the expense of the Customer to disposeof
(bysale or otherwiseas may be reasonable in allthe circumstances):(
i) on 28 days notice in writing to the Customer, or where the Customer cannot
be lraced and reasonable efforts have been made to contact anypartieswho may
reasonable be supposedbythe Companies to have any interestin the
goods,anygoodswhich have been held by theCompaniesfor 90 days and which cannot
be deliveredas instructed; and
(ii) withoutpriornotice,goodswhich have perished,deterioratedor altered or are
in immediateprospectof doing so in a mannerwhich has caused or may reasonably
be expectedto causeloss or damage to Third Parties or to contraveneany
applicable laws or regulations.
13(A) No Insurance will be effected except upon express instructionsgivenin
writing by the Customer andall Insurance's effected by the Companies are
subject to the usual exceptions and condition of the Policies ofthe Insurance
Companiesor Underwriters takingthe risk. Unless otherwise agreed in writing the
Companies shallnotbeunder any obligation to effect a separate lnsurance on each
consignmentbut may declare it on any open or generalPolicyheld by the
Companies.
(B) Insofarasthe Companies agreeslo arrange Insurance, the Companies acts
solely as Agent for the Customerusingits best endeavours to arrange such
Insurance and does so subject to the limits of liabilitycontainedin Clause29
hereof.
14(A) Exceptunder special arrangement previouslymadein writing or under the
terms of a printed documentsigned by the Companies, anyinstructionsrelatingto
the delivery or release of goodsin specifiedcircumstances only, such as (
butwithoutprejudiceto the generalityof this Clause) againstpaymentor against
surrender of a particulardocument,are accepted by theCompanies only as Agents
for the Customer where Third Parties are engaged to effect compliance with the
instruction.
(B) The Companies shall not be under any liabilityin respect of such
arrangements as are referredto underSub-Clause(A) hereof save where such
arrangements are made in writing.
(C) In any event, the Companies'sliability in respect of the performanceor
arranging to performanceof such instructions shall not exceed that providedfor
in these Conditions in respect of lossor of damage to goods.
15 Advice and information,in whatever form it may be given,is providedby the
Companies for the Customeronlyand the Customer shall indemnifythe Companies
against any liability, claims, loss, damage,costs or expenses arising out of
any other personsrelying upon such advice or information. Except under special
arrangementpreviouslymadein writing, advice and informationwhich is not
relatedto specific instructions accepted by the Companies is provided
gratuitously and without liability.
16(4) Exceptunder special arrangements previouslymadein writing the Companies
will not accept or deal with bullion, coin,
preciousslones,jewellery,valuables,antiques,pictures,human remains, livestock
or plants.Should any Customer nevertheless deliver any such goodsto the
Companies or cause the Companies to handle or deal withanysuchgoodsotheMisethan
under special arrangementspreviouslymade in writing the Companies shall be
under no liability whatsoeverfor or in conneclion with such
goodshowsoeverarising.
(B) TheCompaniesmayat any time waive its rights and exemptions from liability
under Sub-Clause
(A)above in respect of any one or more of the categories of
goodsmentionedherein or of any part of any category. lf such waiver is not in
writing, the onusof provingsuchwaivershallbe on the Customer.
17 Except following instructionspreviouslyreceived in writing and accepted by
the Companies, the Companieswill not accept or deal withgoodsof a dangerous or
damaging nature, not withgoodslikely to harbour or encourage verminor other
pests,not with goodsliable to taint or affect other goods.lf
suchgoodsareacceptedpursuantto a special arrangement and then in the opinion of
theCompanies they constitute a risk to othergoods, property, life or health,
the Companies shall where reasonably practicablecontactthe Customer, but
reserves the right at their expense of the Customer to remove or
otherwisedealwiththe goods.
18 Wherethere is a choice of rates according to the extentor degree of the
liability assumed by carriers, warehousemenor others, no declarations of value
where optional will be madeexceptunder special arrangementspreviouslymade in
writing.
THE CUSTOMER
19 The cuslomer warrants:
(A) that the description and particularsof any goodsfurnished by or on behalf
of the Customer are full an0 accurate.
(B) that all goodshave been properlyand sufficientlyprepared, packed,
stowed,labelled andior marked,andthat the
preparation,packing,stowage,labellingand marking are appropriateto any
operationsor transactions affecting the goodsandthe characteristics of the
goods
(C) that where the Companies receives the goodsfrom the Customer already stowed
in or on a container,trailer, tanker, or any olher device specifically
construcledfor the carriage of goodsby land, sea or air (eachhereafter
individually referred to as "thetransport unit"), the transport unit is in good
condition, and is suitable for the carriage to the intended destination of the
goodsloaded therein or thereon.
20 Shouldthe Customer otheMisethan under special arrangementspreviouslymade in
writing as set out in Clause 17 above deliverto the Companies or cause the
Companies to deal withor handlegoodsof a dangerousor damaging nature,or
goodslikely to harbour or encouragevermin or other pests,or goods liableto
taint or atfect other goods,he shall be liablefor all loss or damage arisingin
connectionwith suchgoodsand shall indemnifythe Companies against all
penalties,claims, damages, costsand expenseswhatsoeverarisingin connections
therewith, and the goodsmay be dealt with in such manner as the Companies or
any other personin whose custody theymay be at any relevant time shall think
fil.
21 The customer undertakesthat no claim shall be made against any Director,
servant, or Employee of the companies with imposes or attempts to impose upon
them any liability in connection with any serviceswhich are the subject of
these Conditions and if any such claim should neverthelessbe made, to indemnify
the Companies againstall consequences thereof
22 The Customer shallsave harmless and keel the Companies indemnifiedfrom and
against:
(A) All liability, loss, damage, costs and
expenseswhatsoever(includingwithoutprejudiceto the ' generalityof the
foregoing, all duties, taxes, imposts, levies, deposits and outlays of
whatsoever naturelevied by any authority in relation to the goods)arisingout of
the Companies actingin accordancewith the Customer'sinstructionsor arisingfrom
any breach by the Customer of any Wananty contained in these Conditions or from
the negligence of the Customer' and
(B) Withoutderogationfrom sub-clause (A)above,anyliabilityassumedor incurred by
the companies whenby reason of carrying out the Cuslomer's instruclionsthe
Companieshas reasonably become liable or may become liable or may become liable
to any otherparty'and
(C) All Claims, ;osts and damages whatsoeverand by whomsoevermade or
preferredin excess of the liabilityof the Companies undertheterms of terms
Conditionsregardlesswhether such claims, -and costs demandsarisefrom or in
connection withthe negligence or breach of duty of the CompaniesitsServants, or
Agents. and Sub-Contractors
(D) Any claims of a General Averagenaturewhich may be made on the Companies. 23
(A) The Customer shallpayto the companies in cash or as otherwise agreed all
sums immediately when due withoutreductionor deferment on account of any claim,
counterclaimor set-off
(B) In respect of all sums which are overduethe customer shall be liable to
payto the companies interestcalculatedat 4% above the Prime LendingRate for the
time being off Allied lrish Banks Plc.
24 Despitethe acceptance by the companiesof instructionto collect freight,
duties, charges or other expensesfromthe Consignee or any other personthe
Customer shall remain responsiblefor such freight,duties,charges or expenseson
receipt of evidence of proper demand and in the absence of evidenceof payment (
tor whatever reason) by such Consigneeor otherpersonwhen due'
25 Where liability for GeneralAverage arises in connection withthe goods,the
Customer shallpromptly providesecu;ityto the Companies or to any
otherpartydesignatedby the Companies into a form acceptableto the ComPanies.
LIABILITYAND LIMITATION
26 The Companies shallperformits duties with a reasonabledegree of care,
diligence, skill and judgement.
27 The Companies shall be relieved of liabilityforanylossor damage if and to
the extent that such loss or damageis caused by:-
(A) strike,iock-out,stoppageor restraint of labour, the consequences of which
the Companies is unable to avoid by the exercise of reasonable diligence;
(B) any cause or event whichtheCompaniesis unable to avoid and the consequences
whereofthe Companies is unable to exercise of reasonable diligence' 2g
Exceptunder special arrangementspreviouslymadein writing the Companies
acceptsno responsibility for deoarture or arrivaldates of goods.
29 (A) Subjectto clause 2(B)above and sub-clause(D)belowthe companies's
liabilityhowsoever ' that the cause of loss or damage be unexplained shallnot
exceed arisingandnotwithstanding
(i) in the case of claims for loss or damageto goods
(a) thevalue of any goodslost or damages, or io! a sum at tne ratsof two
Special DrawingRights as defined by the International
MonetaryFund(hereinafterreferredto as SDP's)'perkilo of grossweight of any
goodslost or damaged whichevershallbe the least
(ii) inthe case of allother claims
(a) the value of the goodsthe subject of the relevanttransactionbetweenthe
Companies and its Customers, or
(b)asumattherateoftwosDR'sperki|oofthegrossWeightofthegoodsthesubjectof the
said transaction,or
(c) 75,000 SDR'S in respect of any one transaction whichevershallbe the least
Forthepurposes of clause 29(A)the value of thegoodsshallbe their valuewhen they
were or shouldhavebeen shipped. The value of SDR'sshall be calculatedas at the
date when the claimis receivedby the Companies in writing.
(B) Subject to Clause 2(B) above, the Sub-Clause(D)below, the Companies's
tiabitity for toss or damage as a resultof failure to deliver or arrange
delivery of goodsin a reasonable time or (where there is a special arrangement
under Clause 27) to adhereto agreed departure or arrival dates shall not in any
circumstances whatever exceed a sum equal to twice the amount of the
Companies's charges in respect of the relevant transaction.
(C) Savein respect of such loss or damage as is referred to at Sub-Clause (B)
and subject to Clause
2(B) above and Sub-Clause (D)below, the Companies shall not in any
circumstanceswhatsoever be liable for indirect of consequential loss such as
(butnot limited to) loss of profits,loss of market or the consequences of delay
or deviation however caused.
(D) By special arrangement agreed in writing, the Companies may accept
liability in excess of the limits set out in Sub-Clauses (A)to (C)above upon
the Customer agreeingto paythe Companies's additional charges for accepting
such increased liability,Details of the Companies'sadditional chargeswill be
providedupon request.
30 (A) Any claim by the Customer against the Companies arising in respect of
any service providedfor the Customeror which the Companies hasundertakento
provideshall be made in writing and notified to the Companies within 14 days
ofthe date upon whichthe Customer became or should have become aware of any
event or occurrence allegedto giverise to such claim not made and notified as
aforesaid shall be deemed to be waived and absolutely barred except where the
Customer can showthatit was impossible for him comply with the Time limit and
that he had made the claim as soon as it was reasonable possiblyfor him to do
so.
(B) Notwithstanding the provisionsof Sub-Paragraph (A)above the Companies
shallin any event be discharged of all liability whatsoever howsoever arising
in respect of any service providedfor the Customeror which the Companieshad
undertaken to provideunless suit be brought and written notice thereof givento
the Companies within nine months from the date of the event or occurrence
alleged to giverise to a cause of action againstthe Companies. JURISDICTIONAND
LAW
31 These Conditions andanyactorcontractto which they apply shall be
governedbythe Laws ofthe Republicof lreland and any dispute arising out of
anyact or contract to which these Condjtionsapply shall be subject to the
exclusive jurisdictionoftheCourts of the Republic of lreland.
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