GENERAL TERMS AND CONDITIONS APPLICABLE TO CONTRACTS ENTERED INTO BY AROLA ADUANAS Y CONSIGNACIONES SL ACTING AS TRANSPORT ORGANISER/FREIGHT FORWARDER AND/OR SHIPPING AGENT
Registered in the Personal Property Registry of the city and metropolitan area of Barcelona.
PART I. GENERAL PROVISIONS.
1. These general terms and conditions are applicable to all contracts entered by AROLA ADUANAS Y CONSIGNACIONES SL as Shipping Agent (Provisions Part 2); freight forwarder (Part 3) and any related activities.
A contract shall be deemed to exist between AROLA ADUANAS Y CONSIGNACIONES SL and the client, or between the principal of AROLA ADUANAS Y CONSIGNACIONES SL (acting in its capacity as a shipping agent) and the client, at the time when the latter accepts the transport supply, and when said acceptance is received by AROLA ADUANAS Y CONSIGNACIONES SL. As from that moment, the relations between the parties shall be governed by the provisions of these general terms.
2. Definition of Shipping Agent: Any person who, on behalf of the shipowner or shipping agency, coordinates any material and legal formalities required for the clearance and other services related to the vessel in port such as: the payment of costs incurred by the vessel's ,commercial management of the interests of the shipowner or shipping agency, by entering into contracts of carriage and signing bills of lading on behalf and in representation of the shipowner or shipping agency.
3. Definition of Freight Forwarder: Any intermediary who organises international transport and any operations related to customs transit, by undertaking the following tasks: i) Entering in to contracts on his own behalf with the carrier, as shipper regarding the carriage, and also on his own behalf, with the effective shipper when he will be vested with the condition of carrier and ii) Receiving and making available to the carrier designated by the shipper any goods sent to them as shipping agents.
4. Definition of Client: Any person who contracts the services of AROLA ADUANAS Y CONSIGNACIONES SL, and the shipper, consignor, receiver and consignee of the goods, or any person acting on their behalf.
5. The Client has access to a copy of these general terms and conditions, registered in the Registry of Personal Property and General Contracting Terms of the metropolitan area of Barcelona, at the offices of AROLA ADUANAS Y CONSIGNACIONES SL at C/ Palaudarias no. 11-13 ( CP 08004) Barcelona, Spain, published and freely accessible on the website: www.arola.es of AROLA ADUANAS Y CONSIGNACIONES SL. Moreover, all electronic correspondence of AROLA ADUANAS Y CONSIGNACIONES SL refers to these general terms and shall contain a link to access them at the corresponding website.
6. These general terms shall be governed and construed in accordance with Spanish law.
PART II. SHIPPING AGENT.
1.1. The signature of bills of lading of the shipowner represented by AROLA ADUANAS Y CONSIGNACIONES SL and the engagement of any services in addition to sea transport shall always be executed on behalf of and in representation of the shipowner identified on the bill of lading or any previous correspondence, which includes their name and address.
1.2. The invoicing of freight, import costs and additional transport services by AROLA ADUANAS Y CONSIGNACIONES SL does not convey to AROLA the quality of carrier.
1.3. Any liability proceedings vis-à-vis AROLA ADUANAS Y CONSIGNACIONES SL due to any loss or damage to the goods (including any commercial damage and damages caused by delays) occurred during the contract will be instituted by the client.
2.1. The client has access to the whole set of clauses of the bill of lading of the shipping company, whose conditions are fully applicable to the contracted transport and by extension to the shipping agent.
2.2. In the hypothetical event that any contractual or non-contractual liability proceedings are brought against AROLA ADUANAS Y CONSIGNACIONES SL on account of any loss or damage to the transported goods (including any commercial damage and damages caused by delays), AROLA ADUANAS Y CONSIGNACIONES SL may invoke the conditions of the bill of lading that covers the transport and may benefit from all limitations and exemptions established in the bill of lading, including the applicable law and jurisdiction clause and in International Conventions laws and regulations applicable to transport as if it were the actual effective carrier.
3. Liability of AROLA ADUANAS Y CONSIGNACIONES SL
3.1. AROLA ADUANAS Y CONSIGNACIONES SL is in no way liable for the performance of the transport operation contracted as an agent on behalf of its principal.
3.2. If the applicable legal system permits the liability of the contracting carrier to be extended to its shipping agent, the liability of AROLA ADUANAS Y CONSIGNACIONES SL shall in no way exceed that of the actual contracting carrier in accordance with applicable legislation. AROLA ADUANAS Y CONSIGNACIONES SL shall be entitled to limit its liability in accordance with Act 14/2014 on Maritime Shipping, Hague-Visby Rules, Hague Rules, or any other regulations that may apply according to the provisions and contractual limits of liability set out in the bill of lading of the shipowner.
4. Liability of the client.
4.1. The client is responsible for the information related to the description of the goods, weight and marks. It specifically assumes the obligation to report their dangerous nature along with the formalities required by applicable legislation.
4.2. The client is responsible for paying the freight and any costs arising from the contracted operation. Even if the freight and expenses were payable at destination, the shipper is jointly and severally responsible for the payment along with the consignee. The price of the transport and other services is provided to the client in accordance with the rate applicable at the time at which the contract is concluded.
Any lost or defective goods shall also accrue the agreed freight.
Any failure to pay within the agreed period shall place the client in arrears and without the need for AROLA ADUANAS Y CONSIGNACIONES SL or its principal to issue any reminder or notice or default, the outstanding amount shall accrue the interest established in Article 7 of Act 3/2004, of 29 December, setting forth the measures against late payment in commercial transactions.
4.3. The goods are subject to a lien to guarantee payment of freight, expenses, charges for delays, detentions and any other costs arising from their transport and warehousing until they are handed over to the consignee. This lien may be exercised vis-à-vis the shipper and consignee whether the freight is prepaid or payable at destination.
In the event that the freight is prepaid and in cash, AROLA ADUANAS Y CONSIGNACIONES SL reserves the right to withhold and not deliver to the client the original bill of lading as a title representing the goods until such time as the freight and any other expenses incurred at origin have been paid.
4.4. In the event of a delay/failure to deliver caused by the shipper or consignee (absence of consignee, incorrect data, rejection of the goods, failure to pay the freight, customs restrictions, etc.) AROLA ADUANAS Y CONSIGNACIONES SL shall have the option, but not the obligation, of officially recording the storage and sale of goods before a Notary Public (or relevant action pursuant valid legislation in force). All expenses arising from the storage of the goods until such time as they are sold/destroyed/delivered, including expenses for demurrage of container, storage area and Customs fines, shall be for client’s account.
5. Claims in the event of damage, loss or delay.
5.1. In the event of any damage, loss or delay affecting the transported goods the client shall submit a letter of protest to AROLA ADUANAS Y CONSIGNACIONES SL within the deadlines and subject to the requirements of regulations applicable to the specific case.
5.2. Without prejudice to the foregoing the client shall be required to allow AROLA ADUANAS Y CONSIGNACIONES SL, or any person designated by AROLA ADUANAS Y CONSIGNACIONES SL to inspect the damaged goods. The client shall also furnish AROLA ADUANAS Y CONSIGNACIONES SL with all documentation in support of the claim.
6. Period of limitation and time bar.
6.1. No liability proceedings shall be admitted against the contracting carrier or, if applicable, AROLA ADUANAS Y CONSIGNACIONES SL, if the suit is not brought before the competent court within a maximum period of one year after delivery of the goods or the date on which the good should have been delivered.
6.2. With respect to any claim relating to freight and related expenses, the period of limitation of 1 year shall apply as of the due date of the invoice.
PART III. FREIGHT FORWARDER.
1.1. Any waybills or bills of lading corresponding to the effective performance of all or part of the transport operation shall be available throughout their period of validity. They shall always be produced by companies or enterprises which are subject to any applicable International Conventions and in accordance with the terms of these Conventions. If this were not possible at any part of the journey, they shall be produced by any others which are recognised as or have the legal status of national or international carriers, as the case may be.
2. Liability of the client.
2.1. The client warrants to AROLA ADUANAS Y CONSIGNACIONES SL that the goods declaration is accurate in terms of its characteristics, description, marks, numbers, quantity, weight and volume, and the consignor and/or consignee are liable for any loss, damage, fault and/or penalties that any inaccuracy in the aforementioned data may cause to third parties, and for any event arising from inappropriate, defective or poorly used packaging which causes damage or loss to the goods or the handling equipment or means of transport, even when such inaccuracies or discrepancies affect operations not performed directly by AROLA ADUANAS Y CONSIGNACIONES SL who shall also seek compensation for any additional costs that it is required to meet on account of said causes.
In the transport of refrigerated/frozen goods, the client shall be responsible for issuing AROLA ADUANAS Y CONSIGNACIONES SL with the appropriate parameters for this operation. Furthermore, the client shall be responsible for conditioning and preparing the refrigerated/frozen goods for their subsequent transport. Under no circumstances AROLA ADUANAS Y CONSIGNACIONES SL shall be held responsible for any damage to these kinds of goods during transport, where this damage is a consequence of having provided incorrect parameters or unsuitable conditioning/preparation of the goods.
2.2. The consignor shall be required to inform AROLA ADUANAS Y CONSIGNACIONES SL of the dangerous nature of goods handed over for transport, and of any precautions that must be taken.
2.3. In the event of an omission or insufficient information, the consignor shall be responsible for any loss caused by the goods, and AROLA ADUANAS Y CONSIGNACIONES SL shall be entitled to recover any expenses incurred for that reason and shall not be held responsible if the goods had to be unloaded, destroyed, neutralised or rendered harmless, according to the circumstances and without any entitlement to compensation.
2.4. The client is responsible for paying the freight charge and any costs arising from the contracted operation. Even if the freight charges, carriage charges and costs were payable at destination, the shipper is jointly and severally responsible for the payment along with the consignee. Any lost or defective goods shall also accrue the agreed freight charge.
2.5. The client undertakes to take charge of the goods as soon as they reach the agreed point of destination. If the goods are not delivered or the delivery is delayed for reasons attributable to the client, the latter assumes responsibility for the payment of all costs incurred by the custody of the goods, including container delays and occupation of surface area. If the consignee is different from the contractor of the service, the former shall be jointly and severally liable with the latter for any costs incurred by a failure to collect the goods.
3. Extension and Limits to the Liability of AROLA ADUANAS Y CONSIGNACIONES SL
3.1. AROLA ADUANAS Y CONSIGNACIONES SL is liable for any damage grounded on the loss or delay in delivery if the event that has caused the damage has taken place between the time when it took possession of the goods and the time of their delivery. However, it shall not be liable for any events or acts arising from or grounded on any faults or negligence of the shipper or consignee; inherent hidden defects; strikes, lock-outs or other labour disputes that affect the work; or of any other cause that AROLA ADUANAS Y CONSIGNACIONES SL could not have avoided or prevented using reasonable diligence.
3.2. It shall not be responsible for complying with any instructions issued after the issue of the shipment or transport documents or for any event arising from these subsequent instructions.
3.3. The liability of AROLA ADUANAS Y CONSIGNACIONES SL for its own acts shall be limited to the provisions stated in regulations or International Conventions applicable to each event.
Without prejudice to the foregoing if there is no limit on liability applicable to the event in question the liability of AROLA ADUANAS Y CONSIGNACIONES SL shall be limited:
- In cases of land carriage of goods or any other activity not included in the following paragraphs, the Act on inland transport (LOTT) shall apply with a limit of 4.5 Euros per Kilo of gross weight of any damaged or lost goods.
-In cases of international land transport of goods, the CMR contract shall apply and the liability of AROLA ADUANAS Y CONSIGNACIONES SL shall not exceed 8.33 SDR per kilo of gross weight of goods damaged or lost.
- In cases of national air transport, any damage or loss of goods shall be subject to Spanish law, although the liability of AROLA ADUANAS Y CONSIGNACIONES SL will not exceed the quantity of 17 SDR per kilo of gross weight of the damaged or lost goods.
- In cases of the maritime transport of goods:
(a) In the event of damage to or loss of goods, to the lower figure resulting of:
(i) Determining the value of the lost or damaged goods, or
(ii) Multiplying 2 SDR per kilogram of gross weight of lost or damaged goods.
(b) In the event of a delay, the price of the transport of goods should be multiplied by 2.5.
3.4. The accumulated liability of AROLA ADUANAS Y CONSIGNACIONES SL shall not exceed the liability limits for the total loss of goods. AROLA ADUANAS Y CONSIGNACIONES SL shall not accept any responsibility for consequential damage, either direct or indirect, including, but not limited to, loss of profit, loss of opportunity, consequences due to a delay and route deviation for any reason whatsoever.
3.5. These limitations shall apply to all claims made against AROLA ADUANAS Y CONSIGNACIONES SL, regardless of whether the claim is based on contractual liability or in tort liability.
3.6. Special Drawing Rights (SDR) refers to the unit of account as defined by the International Monetary Fund.
3.7. Where the liability is grounded on events or acts which occur during the performance of the transport operation, if AROLA ADUANAS Y CONSIGNACIONES SL had to be subrogated therein, under no circumstances it will exceed that which is assumed vis a vis AROLA by rail, navigation, air, road transport and storage warehouse companies or any other intermediary involved in the transport process according to applicable international regulations and Conventions in force.
4. Price of the Contracted Services
4.1. The transport and any other services to which the activity of AROLA ADUANAS Y CONSIGNACIONES SL relates are deemed to be contracted in accordance with the tariffs in force at the time of entering into the contract and within the limits set out therein. If no tariffs exist, the contract shall be executed according to the normal or market prices corresponding to the place in which the contract is to be executed.
4.2. Any additional costs incurred as a result of events or circumstances subsequent to the contracting date or, as the case may be, the date on which the shipment or transport documents are issued, shall be borne by the client, provided that they are duly justified and are not due to the fault or negligence of any party involved in the performance of the contracted services.
4.3. Any costs and the services provided by AROLA ADUANAS Y CONSIGNACIONES SL shall be paid in cash, except where special conditions have been previously agreed upon. Any failure to pay within the agreed period shall place the client in arrears and, without the need for AROLA ADUANAS Y CONSIGNACIONES SL to issue any reminder or notice or default, the outstanding amount shall accrue the interest established in Article 7 of Act 3/2004, of 29 December, setting forth the measures against late payment in commercial transactions.
4.4. With respect to any claim relating to freight and expenses, the period of limitation of 1 year shall apply.
4.5. AROLA ADUANAS Y CONSIGNACIONES SL holds a lien in relation to the goods, with regard to all amounts owed by virtue of the services entrusted to it by the same consignor/shipper and/or consignee or the representatives of either of them and may store and sell these goods by a Notary Public. It may assert its right by any means that it deems appropriate and is admissible in accordance with the laws of the place in which the aforementioned rights are exercised or, failing that, the place at which the goods are shipped or the place at which these are supposed to be delivered. This right pertaining to the lien, storage and sale may be exercised vis-à-vis the consignor/shipper and/or consignee whether the freight is prepaid or paid at destination.
If the goods were lost or destroyed, AROLA ADUANAS Y CONSIGNACIONES SL has the same rights as indicated above in relation to compensation paid by any insurance companies, transport companies or others.
In the event of prepaid freight, AROLA ADUANAS Y CONSIGNACIONES SL reserves the right to withhold and not deliver to the client the original bill of lading, as a title representing the goods, until such time as the freight and any other expenses incurred at origin have been paid.
5.1. AROLA ADUANAS Y CONSIGNACIONES SL does not insure any loss or damage during handling, storage or transport of the goods, unless this insurance is specifically required by the client in writing.
5.2. When AROLA ADUANAS Y CONSIGNACIONES SL has been instructed by the client to cover the insurance, it shall do so on behalf of the client in the capacity of its agent.
5.3. If an insurance policy has been taken out, the general terms for the transport and any applicable related clauses in the local insurance market shall apply to the insurance which covers the transport and/or storage.
6. Notification and Expiry.
6.1. In the event of any loss, damage or delays in the material performance of the transport operations, claims and reservations shall be formulated subject to the terms and conditions indicated in the waybills, bills of lading, etc. or, failing that, the provisions of International Conventions governing the corresponding mode of transport.
6.2. Without prejudice to the foregoing, the client shall be bound to allow AROLA ADUANAS Y CONSIGNACIONES SL, or any person designated by the latter, to inspect the damaged goods. The client shall also furnish AROLA ADUANAS Y CONSIGNACIONES SL with all documentation in support of the claim.
6.3. All claims relating to the services provided by AROLA ADUANAS Y CONSIGNACIONES SL shall expired within one year starting from the delivery of the goods to the consignee or as of the date on which they ought to have been delivered unless legal proceedings are instituted against AROLA ADUANAS Y CONSIGNACIONES SL before the competent court.
6.4. Notwithstanding the expiry of the actions arising out of the material performance of the various transport operations shall take place at the time indicated on waybills, bills of lading, etc. or, where applicable, the provisions of International Conventions governing the various forms of transport, when the period of time will have commenced to elapse in accordance with the indications of these documents or Conventions.
7. Applicable law and jurisdiction.
7.1. All contracts entered by AROLA ADUANAS Y CONSIGNACIONES SL in its capacity as freight forwarder shall be governed and construed according to Spanish law.
7.2. Any disputes, proceedings or claims that could arise with respect to AROLA ADUANAS Y CONSIGNACIONES SL, its employees and/or officials in relation to said contracts shall be subject to Spanish jurisdiction, specifically the Courts of Valencia, with the client expressly waiving to any other jurisdiction.
PART IV. DATA PROTECTION
For the purposes of the provisions of Organic Law 15/1999 on the Protection of Personal Data and Royal Decree 1720/2007 approving the Implementing Regulations, you are informed that any personal data collected by, may be processed in an automated manner as part of a file owned by AROLA ADUANAS Y CONSIGNACIONES SL, with a view to managing the list of contacts of the company and its employees. Any person may, at any time, exercise their right of access, rectification, cancellation and opposition under the terms established in the aforementioned Organic Law and Implementing Regulations by sending written notice to the following address: C/Palaudarias 11-13, CP 08004 Barcelona, Spain or by e-mail to: información@arola.com