Lankel Refrigeration Ltd
Lankel (NI) Limited
The Customer should note that these conditions exclude or limit the Company’s liability and also require the Customer to indemnify the Company in certain circumstances.
Definitions & Application
1. In these Conditions:-
“Company” Lankel Refrigeration Limited & Lankel (NI) Limited
“Customer” Any person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services.
“Person” Includes persons or any Body or Bodies Corporate.
“The Owner” The Owners of any Transport Unit and the goods therein or thereon (including any packaging, or equipment) to which any business concluded under these Conditions relates and any other person who is or may become interested in the Transport Unit and the goods therein.
“Third Party Premises” Container depots and terminals at, or near to Ports in Northern Ireland and the Republic of Ireland including (as and when necessary) on board vessels which are moored along side a safely accessible berth (each hereafter individually referred to as “Third Party Premises”).
“Transport Unit” Includes a refrigerated container, container, trailer, tanker, or any other device specifically constructed for the carriage of goods by land, sea or air (each hereafter individually referred to as “Transport Unit”)
a. Subject to Sub-Paragraph (b) below, all and any activities of the Company in the course of business whether gratuitous or not are undertaken subject to these Conditions.
b. If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions be repugnant to such legislation to any extent such part shall as regards such business be overridden to that extent and no further.
3. The Customer warrants that he is either the Owner or the authorised Agent of the Owner of the Transport Unit and also that he is accepting these Conditions not only for himself but also as Agent for and on behalf of the Owner of the Transport Unit and any goods contained therein.
4. In authorising the Customer to enter into any Contract with the Company and/or in accepting any document issued by the Company in connection with such Contract, the Owner accepts these Conditions for themselves and their Agents and for any parties on whose behalf they or their Agents may act, and in particular, but without prejudice to the generality of this Clause, they accept that the Company shall have the right to enforce against them jointly and severally any liability of the Customer under these Conditions or to recover from them any sums to be paid by the Customer which upon proper demand have not been paid.
5. The Company undertakes all services subject solely to these conditions which can be varied only in writing by a Director, Company Secretary or Partner of the Company. If a Customer’s acceptance document, purchase order or other documentation, received by the Company before or after notification of these Conditions, contains terms or conditions additional to, or at variance with these Conditions, then every such additional or varying term or condition shall be of no effect.
The Company & the Services
a. Other than the services identified in clause 7 below, the Company does not make or purport to make any contract with the Customer for the carriage, storage, packing or handling of any Transport Unit or goods therein
b. If contrary to Clause 6(a) the Customer impliedly or expressly requests the Company to contract with a third party to arrange the carriage, storage, packing or handling of any Transport Unit or goods, or undertake any other physical service in relation to them, the Company does so solely as an agent for the Customer, so that the direct contractual relationships are established between the Customer and any third parties. The Company shall on demand by the Customer provide evidence of any contract entered into as Agent for the Customer. Insofar as the Company may be in default of this obligation, it shall be deemed to have contracted with the Customer as a Principal for the performance of the Customer’s instructions.
7. The Company will provide the following services to the Customer when expressly engaged by the Customer to do so:
a. Monitoring. The Company shall monitor temperature recording devices of Transport Units within Third Party Premises. The Company shall keep appropriate temperature records as required by the Customer.
b. Repairs. The Company shall perform repairs to Transport Units within Third Party Premises.
c. Pre-Trip Inspections. The Company shall inspect Transport Units within Third Party Premises prior to loading when requested by the Customer.
8. At all times, the Transport Units remain in the care, possession, custody or control of the Customer, their servants or agents within Third Party Premises. The Customer, their servants or agents remain responsible for providing and maintaining power to the Transport Units at all times.
9. The Transport Units are not, at any time, in the physical possession, care, custody or control of the Company. The Company is not, at any time, responsible for providing or maintaining power to the Transport Units.
Lien & Storage
a. Subject to Sub-Clause (b) hereof, the Company shall have a general lien on all goods and documents relating to Transport Units and/or Goods therein for all sums due at any time from the Customer or Owner, and shall be entitled to sell or dispose of such goods or documents as Agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums on 28 days notice in writing to the Customer. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Company and the costs of sale or disposal the Company shall be discharged of any liability whatsoever in respect of the goods or documents.
b. When the goods are liable to perish or deteriorate, the Company’s right to sell or dispose of the Transport Units and/or goods shall arise immediately upon any sum becoming due to the Company subject only to the Company taking reasonable steps to bring to the Customer’s attention its intention of selling or disposing of the Transport Units and/or goods before doing so.
11. If, at any time, the Company has possession, custody or control of Transport Units and/or goods therein:
a. The Company shall be entitled to store the Transport Unit and/or the goods, or any part thereof at the sole risk of the Customer and the cost of such storage shall be payable on demand by the Customer to the Company.
b. The Company shall be entitled at the expense of the Customer to dispose of (by sale or otherwise as may be reasonable in all the circumstances):-
a) on 28 days notice in writing to the Customer, or where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the Transport Units or goods which have been held by the Company for 90 days and which cannot be delivered as instructed; and
b) without prior notice, the Transport Unit and/or goods which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to Third Parties or to contravene any applicable laws or regulations.
a. No Insurance will be effected except upon express instructions given in writing by the Customer and all Insurances effected by the Company are subject to the usual exceptions and conditions of the Policies of the Insurance Company or Underwriters taking the risk. Unless otherwise agreed in writing the Company shall not, and shall not be under any obligation to, effect a separate Insurance on any Transport Unit or any goods therein but may declare it on any open or general Policy held by the Company
b. Insofar as the Company agrees to arrange Insurance, the Company acts solely as Agent for the Customer using its best endeavours to arrange such Insurance and does so subject to the limits of liability contained in Clauses 23-25 below.
Advice & Information
13. Advice and information, in whatever form it may be given, is provided by the Company for the Customer only and the Customer shall indemnify the Company against any liability, claims, loss, damage, costs or expenses arising out of any other persons relying upon such advice or information. Except under special arrangements previously made in writing, advice and information which is not related to specific instructions accepted by the Company is provided gratuitously and without liability.
Requirements and exclusions for certain Goods
a. Except under special arrangement previously made in writing, the Company will not provide any services relating to bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock or plants. Should any Customer nevertheless cause the Company to provide services relating to any such goods otherwise than under special arrangements previously made in writing the Company shall be under no liability whatsoever for or in connection with such goods howsoever arising.
b. The Company may at 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 goods mentioned herein or of any part of any category providing such waiver is evidenced in writing and, if such waiver is not in writing, the onus of proving such waiver shall be on the Customer.
15. Except following instructions previously received in writing and accepted by the Company, the Company will not provide services relating to goods of a dangerous, hazardous or damaging nature. The Company shall be under no liability whatsoever for or in connection with such goods howsoever arising.
16. The Customer warrants:-
a. That the description and particulars of any Transport Units, and/or any goods therein, furnished by or on behalf of the Customer are full and accurate.
b. That all Transport Units and the goods therein have been properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the Transport Units and the characteristics of the goods therein.
c. The Transport Unit is in good condition, and is suitable for the carriage to the intended destination of the goods loaded therein or thereon.
17. The Customer will inform the Company in writing of any special precautions necessitated by the nature, weight or condition of the Transport Unit and/or any Goods stowed therein, or of any particular circumstances that the Company should be aware, or, legal obligations specific to the Goods within the Transport Unit which the Company may need to comply.
18. Should the Customer deliver to the Company or cause the Company to provide services, deal, or handle a Transport Unit and/or goods of a dangerous, hazardous or damaging nature, or likely to harbour or encourage vermin or other pests, or goods liable to taint or affect other goods, the Customer shall be liable for all loss or damage arising in connection with such goods and shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the goods may be dealt with in such manner as the Company or any other person in whose custody they may be at any relevant time shall think fit.
19. The Customer undertakes that no claim shall be made against any Director, Servant, or Employee of the Company which imposes or attempts to impose upon them any liability in connection with any services which are the subject of these Conditions and if any such claim should nevertheless be made, to indemnify the Company against all consequences thereof.
20. The Customer shall indemnify and hold the Company harmless from and against:
a. All liability, loss, damage, costs and expenses whatsoever (including without prejudice to the generality of the foregoing, all duties, taxes, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Transport Units and goods therein) arising out of the Company acting in accordance with the Customer’s instructions or arising from any breach by the Customer of any Warranty contained in these Conditions or from the negligence of the Customer;
b. Without derogation from Sub-Clause (a) above, any liability assumed or incurred by the Company when by reason of carrying out the Customer’s instructions the Company has reasonably become liable or may become liable to any other party;
c. All claims, costs and demands whatsoever and by whomsoever made or proffered in excess of the liability of the Company under the terms of these Conditions regardless whether such claims, costs and demands arise from or in connection with the negligence or breach of duty of the Company, its Servants, Sub-Contractors or Agents;
d. All liability, loss, damage, costs and expenses whatsoever arising out of or in connection with the personal injury and/or death of an employee, servant or agent of the Company whilst such employee, servant or agent is undertaking services for the Customer at, or on, a Third Party Premises which shall include boarding, being onboard and disembarking a vessel. Whilst, under this clause 20 (d), an employee, servant or agent of the Company is undertaking services for more than one Customer, each and every Customer shall be jointly and severally liable to indemnify and hold the Company harmless.
21. The Customer shall pay to the Company in cash or as otherwise agreed all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set-off.
22. In respect of all sums which are overdue the Customer shall be liable to pay to the Company interest calculated at 10% per annum above the Prime Lending Rate for the time being of Allied Irish Banks Plc.
Liability & Limitation
23. The Company shall be relieved of liability for any loss or damage if and to the extent that such loss or damage is caused by
a. strike, lock-out, stoppage or restraint of labour, the consequences of which the Company is unable to avoid by the exercise of reasonable diligence;
b. any cause or event which the Company is unable to avoid and the consequences whereof the Company is unable to prevent by the exercise of reasonable diligence.
24. The Company accepts no responsibility for departure or arrival dates of Transport Units.
a. Subject to Clause 2(b) above and sub-clause (d) below the company’s liability howsoever arising (and notwithstanding that the cause of loss or damage be unexplained) shall not exceed
a) In the event of claims for loss or damage to a Transport Unit,
I. the market value of that Transport Unit, but in no event shall the maximum liability exceed €10,000.
b) In the event of claims for any goods lost or damaged
I. The market value of such Goods, or, a sum at the rate of two Special Drawing Rights as defined by the International Monetary Fund (hereinafter referred to as SDR’s), per kilo of gross weight of any goods lost or damaged, whichever shall be the least.
c) In the case of all other claims
I. the market value of the goods the subject of the relevant transaction between the Company and its Customer
II. a sum at the rate of two SDR’s per kilo of the gross weight of the goods the subject of the said transaction, or
III. €10,000 in respect of any one transaction whichever shall be the least.
b. For the purposes of Clause 25(a) the market value of the goods shall be their value when they were or should have been shipped. The value of SDR’s shall be calculated as at the date when the claim is received by the Company in writing
c. The Company shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not 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 Company may accept liability in excess of the limits set out in Clauses 25 (a) to (c) above subject to, inter alia, the Customer agreeing to pay the Company’s additional charges for accepting such increased liability. Details of the additional charges will be provided upon request.
Claims procedure & time limits
26. Any claim by the Customer against the Company arising in respect of any service provided for the Customer or which the Company has undertaken to provide shall be made in writing and notified to the Company within 14 days of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to comply with this Time Limit and that he has made the claim as soon as it was reasonably possible for him to do so
27. Notwithstanding the provisions of Clause 26, the Company shall in any event be discharged of all liability whatsoever howsoever arising in respect of any service provided for the Customer or which the Company has undertaken to provide unless suit be brought and written notice thereof given to the Company within six months from the date of the event or occurrence alleged to give rise to a cause of action against the Company.
Jurisdiction & Law
28. These Conditions and any act or contract to which they apply shall be governed by the laws of the Republic of Ireland and any dispute arising out of any act or contract to which these Conditions apply shall be subject to the exclusive jurisdiction of the Courts of the Republic of Ireland.
© Lankel Refrigeration Ltd. July 2013.