I. Definitions

Unless otherwise expressly stipulated, the following words and expressions contained in the present Terms and Conditions shall have the meanings below:

1.1 Company refers to Niryath Logistics (India) Co., Ltd. and all its branches within the territory of India.

1.2 Client refers to a legal or natural person who concludes a contract with the Company, receives services provided by the Company, and have rights and obligations under the contract, as well as a legal or natural person who is interested in the said contract, including but not limited to cargo owner, shipper, consigner, consignee or their respective agent.

1.3 Instruction refers to a written statement containing the Client’s specific requirements, including shipper’s written instructions and/or the requirements set out in the first page of the Company’s shipping documents (including the Company’s bill of lading).

1.4 Cargo Owner refers to the owner of any cargo (including any container or other equipment except for those provided by the Company or the carrier) in any transaction concluded under the present Terms and Conditions, as well as any person who has been or may in the future be interested in the relevant cargo, including the consignee named in the shipper’s Instruction and/or in any page of the Company’s shipping documents (including the Company’s bill of lading).

1.5 Cargo refers to the whole or part of goods and any packaging supplied by the Client, including live animals as well as containers, pallets or similar articles of transport used to consolidate goods which are supplied by shipper.

1.6 Hazardous Cargo refers to any Cargo classified as hazardous by any international treaty or domestic law, as well as any Cargo which may become hazardous, explosive, flammable, radioactive, toxic, corrosive or destructive.

II. Scope of Application

2.1 The Company may notify the present Terms and Conditions to the Client by means of, including but not limited to, written form, fax, email, etc. The Client by knowing and understanding the present Terms and Conditions by, including but not limited to, the above means, shall duly comply with them in actual business.

2.2 The present Terms and Conditions may apply to all businesses undertaken by the Company, and will form an integral part of each transaction agreement to be concluded by the Company and the Client. The present Terms and Conditions may be modified or waived by an express written agreement made by both parties. If there is any conflict between the present Terms and Conditions and the content of any agreement concluded by the Company and the Client or any shipping document issued by the Company (including but not limited to air waybill, sea waybill, bill of lading for multi-modal transport, etc.), the relevant content of the agreement or shipping document shall prevail.

III. Contractual Status of the Client and the Company

3.1 Each Client who concludes any transaction or business with the Company hereby expressly warrants to the Company that, as the Cargo Owner or the agent of the Cargo Owner, it fully accepts the present Terms and Conditions on its own or the Cargo Owner’s behalf. Where the Client is an agent of the Cargo Owner, the Client and the Cargo Owner shall be jointly and severally liable to the Company, i.e., the Company shall have the right to exercise rights against the Cargo Owner and/or the Client jointly or separately.

3.2 All services are provided by the Company in the capacity of an agent, except under the following circumstances where the Company acts as principal:

(1) where the Cargo is actually transported, handled or stored by the Company or its employees, and the Cargo is in the actual custody or control of the Company; or

(2) to the extent that the Company expressly agrees in writing to act as principal; or

(3) to the extent that the Company is identified by a court or an arbitration tribunal to be the contracting party.

3.3 Without prejudice to the forgoing:

(1) the fee charging by the Company at a fixed rate for any service of whatsoever nature shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of such service or services;

(2) the supplying by the Company of its own or leased equipment shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of any carriage, handling or storage of the Cargo;

(3) the Company acts as agent where the Company procures a bill of lading or any other shipping document evidencing a contract of carriage between a person other than the Company and the Cargo Owner or the Client; or

(4) the Company acts as agent and never as principal when providing services in respect of customs declaration, taxation, licenses, consular documents, certificates of origin, inspection, certificates and other similar services.

IV. Obligations of the Client

4.1 The Client warrants that at the time of entering into any agreement with the Company or accepting any document issued by the Company to it, it has taken all sufficient and effective means to obtain a full understanding of the contents of the agreement.

4.2 The Client warrants that its Instructions given to the Company are lawful, valid and feasible.

4.3 The Client warrants that the descriptions of the Cargo supplied by it to the Company are adequate and accurate.

4.4 The Client warrants that the packing, marking, labeling, stuffing and stowing of its Cargo are in line with transport requirements.The Client shall satisfy all special requirements set by the Company at the time of receiving its Cargo based on the nature of the Cargo as well as the specific conditions of the transport route.

4.5 The Client shall promptly provide in writing all information required for the Company to 1) arrange and safely perform the services for the Client; and 2) comply with all conventions, laws, regulations and conditions applicable to the Cargo Owner and the transaction or business concerned.

4.6 The Client warrants that it has complied with all applicable international conventions and the laws, rules and regulations of any country to, from or through which the Cargo may be transported.

4.7 The Client warrants that neither the acceptance, delivery or disposal of the Cargo nor any payment or other transaction in connection with the Cargo will expose the Company, its subcontractor or any of its employees, agents, banks, insurers or reinsurers to any sanction, prohibition or penalty (or risk of any sanction, prohibition or penalty) by any state, national, supranational or international governmental organization or other body.

4.8 Unless otherwise mutually agreed in writing, the Client shall warrant that the Cargo consigned by it is not a Hazardous Cargo. Unless mutually and specifically agreed in writing in advance, the Client shall indemnify the Company of all expenses (including legal costs), losses, damage (regardless of the cause), fines and claims caused to the Company by the above-said Cargo of hazardous nature. The Company or other person having control of the Cargo shall be entitled to, without notice to the Client, determine whether the Cargo is hazardous or not and to make a decision to destroy or otherwise dispose of the Cargo at the Client’s risk and cost.

4.9 The Client shall not request the Company to suspend transport of its Cargo, return the Cargo, change the place of destination, deliver the Cargo to any other consignee, or cancel the relevant contract before the Cargo is delivered by the Company to the designated consignee, unless the Client has returned the full set of the shipping documents issued by the Company and has also undertaken to indemnify the Company of all losses and additional costs to be incurred by the Company due to its request for such modification of the contract of carriage (including providing an appropriate security satisfying the Company’s requirements.

4.10 The Company shall not be liable for any loss or expense, including but not limited to fine and penalty, suffered by the Client or any other person as a result of the Client’s failure to comply with any applicable convention, legislation, rule, regulation or license.

V. Rights and Obligations of the Company

5.1 General provisions:

(1) Unless agreed in writing to the contrary, the Company shall have the right to enter into any contract for the following matters on its own or on the Client’s behalf without notice to the Client:

a) selection of carrier, means of transport and route;
b) decision as to whether to containerize the Cargo or not and whether to load the Cargo on deck or not;
c) cargo storage, loading, unloading, unpacking, transshipment or disposal of the Cargo by other means; or
d) making other arrangements as per the Client’s Instruction or as deemed necessary by itself.

(2) Notwithstanding where an act or omission departs or deviates from the Client’s Instruction, the Company shall have the right to proceed therewith if it considers that such act or omission is in the interest of the Client, without imposing any additional liability on the Company. The Company shall at all times comply with the instructions or orders of relevant governmental authorities. The Company’s responsibility towards any Cargo shall be discharged at the time of its delivering or otherwise disposing of the Cargo as per the said instructions or orders.

(3) The Company shall act as per the Client’s authorization. However, the Company may not notify the details of such acts to the Client unless the Client expressly so requested in writing and the request is reasonable.

(4) If the Company at any time considers that it is or may be prevented by an impairment, risk, delay, adversity, etc. from performing its obligations and such impairment, risk, delay, adversity, etc. cannot be reasonably avoided by the Company, it may terminate performance of such obligations by giving a written notice to the Client. The Company may deliver the whole or part of the Cargo to the Client’s custody at any place that the Company considers to be safe and convenient, and its responsibility towards the Cargo shall cease thereby. The Client shall, upon request, pay to the Company all additional expenses and other costs relating to the Company’s transport, delivery and storage of the Cargo to/at the said place.

(5) If the Client fails to pick up any Cargo at the place and time notified by the Company, the Company shall be entitled to store the whole or part of the Cargo at the Client’s risk and cost, and the Company’s responsibility towards the Cargo shall cease thereby.

(6) Under any of the following circumstances, the Company shall have a right (but not an obligation) to sell or dispose of the whole or part of the Cargo at the Client’s risk and cost:

a) The Company unilaterally considers that it is impossible to deliver all the Cargo as per the Instruction, and has notified the Client of such situation in writing 21 days in advance; or

b) The Cargo has deteriorated or is going to deteriorate, or has caused or will cause any loss or damage to other persons or property.

(7) The Company shall not be responsible for the dates of departure and arrival of the Cargo and the duration of carriage, unless such dates have been expressly agreed on in writing in advance.

(8) The Company shall not be responsible for all advice, information or services provided by it for free.

(9) Neither failure nor delay on the part of the Company in exercising any rights shall operate as a waiver thereof, nor shall a single or partial exercise by the Company of such right shall preclude the further or any other exercise of such right or the exercise of any other right to which the Company is entitled. The rights of the Company set out in the present Terms and Conditions shall not exclude any other rights to which the Company may be entitled by law.

5.2 Special provisions governing circumstance where the Company acts as an agent:

(1) Where the Company acts as an agent, it has the authority to enter into any contract on the Client’s behalf with a third party either in its own name or in the Client’s name and such contract shall be directly binding on both the Client and the third party; and

(2) The Company shall not be held liable for compensation unless any loss has been caused to the Client as a result of the Company’s negligence in performing its duties as an agent; and

(3) Where the Company acts as an agent, it shall not be held liable for any loss caused by the act or omission of any third party, including but not limited to the carrier, warehouse keeper, port handling company, railway authority, truck company, etc. unless the Company has failed to exercise due diligence in its selecting, instructing or supervising such third party.

5.3 Special provisions governing circumstance where the Company acts as a principal:

(1) Where the Company uses its own transport vehicles to complete any transport, or enters into any contract, or issues any shipping document in the capacity of a carrier, it shall bear the corresponding responsibilities of a principal. Where the Company acts as a multi-modal transport operator, its period of responsibility shall commence from the time of receipt of the Cargo and end at the time of delivery of the Cargo. The determination of the liability of the Company as a multi-modal transport operator shall apply the “network liability system” principle, and the specific laws and regulations governing the mode of transport in the transport section. However, if the Client has accepted any shipping document issued by any person other than the Company, the Company shall no longer be held liable as a principal for the respective transport section.

(2) Where the Company acts as a principal, it shall be held liable for any act or omission of any third party engaged by it to perform the services under the contract of carriage or other services, as if such act or omission were those of the Company.

(3) The forgoing special provisions governing circumstance where the Company acts as a principal shall not prejudice the Company’s entitlement to exemptions and limitation of liability under laws and the present Terms and Conditions.

VI. Special Provisions on Transport of Containers

6.1 Where the stuffing or sealing of a container is not performed by the Company, the Company shall not be held liable for any loss of Cargo inside the container caused by any of the following reasons:

(1) means of stuffing or sealing of the container; or

(2) unfitness of the Cargo for transport in container, unless the Company has expressly required that the Cargo be transported in container; or

(3) uncargoworthiness or other defect of the container, unless the container is supplied by or on behalf of the Company, provided that:

a) the Client shall inspect the container in respect of cargo-worthiness or defects before it is stuffed, and the Client’s use of the container shall constitute prima facie evidence that the container is in good order and fit for shipment;

b) The Company shall not be liable for the uncargoworthiness of container resulting from the Client’s failure to account for the particulars of the Cargo, even if the container is supplied by the Company.

6.2 The Client shall warrant that no loss will be caused to the Company as a result of the circumstances described in Clause 6.1 hereof, and shall indemnify the Company of such loss, if any.

6.3 Where the Client requires the Company to supply any container, the Company shall not be obliged to supply a container of a special type or special quality unless there is an express request to the contrary.

VII. Indemnification

7.1 The Client must indemnify and keep the Company harmless from all losses (including but not limited to all taxes, fines and costs of any nature levied by any authority) incurred by the Company while the Company is acting in accordance with the Client’s Instruction, arising from the Client’s breach of its obligations, or from any inaccuracy, incompleteness or ambiguity in the information supplied by the Client or in its Instruction, or from any negligence of the Client or the Cargo Owner.

7.2 Without prejudice to the foregoing, for any advice or material provided by the Company to the Client, the Company shall be liable to the Client only. The Client shall be obliged to indemnify and keep the Company harmless from all claims and liabilities caused to the Company as a result of any other person’s reliance on such advice or material.

7.3 The Client undertakes that all the provisions on exemptions, limitation of liability, etc. applicable to the Company under laws and the present Terms and Conditions shall also apply to the Company’s employees, agents, subagents, etc.

7.4 The Client shall indemnify and keep the Company harmless from all claims and costs incurred by the Company beyond the scope of the present Terms and Conditions.

7.5 The Client shall indemnify and keep the Company harmless from all claims of general average nature, and provide all securities required by the Company for such claims.

7.6 If, after it has agreed to accept consignment of certain Hazardous Cargo, the Company unilaterally considers that such Hazardous Cargo constitutes a risk to other goods, property, lives or health, or that the transport or unloading of such Hazardous Cargo may result in a detention and seizure of the Hazardous Cargo itself or other property or persons due to restrictions imposed by certain laws, the Company may destroy or otherwise dispose of the Hazardous Cargo at the expense of the Client or the Cargo Owner without giving any notice or bearing any liability.

7.7 The Client shall indemnify for all losses, pollution, contamination, delay or detention as well as all losses of the Company or any other person’s property (including but not limited to containers) or ships caused directly or indirectly by the Client, Cargo Owner or any of their employees, agents or representatives before, during or after the transport.

VIII. Fees

8.1 The Company shall have the option to calculate fees by value, by weight or by volume. At the Client’s request, the Company may provide details of the calculations of the concerned fees (e.g., freight).

8.2 The Client shall timely pay all sorts of fees to the Company in full amount either by cash or by other agreed means without any deduction or delay for any reason.

8.3 Where the Company is instructed to collect any fee from a third party other than the Client and encounters any difficulty in doing so, the Client shall immediately and unconditionally pay the said fee to the Company.

8.4 The Company shall have the right to charge interests on overdue amount at the daily rate of 0.04% from the due date till the actual payment date of such amount.

8.5 Subject to the terms and any specific reservations or conditions contained or referred to in the quotations, the Company’s quotations shall take effect upon acceptance by the Client. In the event of any significant change in national policies and market rates relating to foreign exchange rate, freight, surcharges, insurance and etc., the Company may alter its quotations or charging rates accordingly through negotiation with the Client.

8.6 Where the Client fails to pay off fees to the Company, the Company or its agents shall be entitled to exercise a lien over the Cargo and documents received by it. If the Client still fails to pay off the outstanding within 28 days upon receipt of the notice of lien or, where the Cargo is perishable, the Client fails to pay off the outstanding within a reasonable time after the Company has given written notice to the Client, the Company shall be entitled to dispose of the Cargo and documents mentioned above so as to reimburse the outstanding fees and disposal costs. Such disposal shall in no event prejudice the Company’s right to claim compensation from the Client in the event that it is not fully reimbursed.

IX. Exemption of the Company’s Liability

Unless otherwise stipulated or provided for in any applicable convention, law, regulation or condition, the Company shall not be held liable for any loss caused by any of the following reasons:

(1) act or negligence of the Client or its agent;

(2) compliance with the Instruction of the Client;

(3) improper packing or marking of the Cargo;

(4) handling, loading, unloading or stowage of the Cargo, as well as stuffing, unstuffing and sealing of the container, by the Client or its representative;

(5) breach by the Client of any warranty or undertaking given or any obligation undertaken by it in the present Terms and Conditions;

(6) inherent defect of the Cargo;

(7) war (whether declared or not), riot, rebellion; torpedo explosion (whether in water or not); capture, seizure (whether made by governmental authority or not); terrorist activity;

(8) treatment by quarantine authority and/or other governmental authority;

(9) strike, unrest, embargo, etc.; or riot and/or civil commotion of more than 10 persons (including theft);

(10) nuclear reactions, electrical radiation or radioactive contamination of nuclear fuel, radioactive products or waste;

(11) Force Majeure, such as earthquake, volcanic eruption, flood, tsunami, tidal wave, lightning strike, storm, hailstorm, snowstorm, etc.;

(12) other events which cannot be avoided by the Company’s exercise of due diligence.

X. Limitation of Liability

10.1 Unless otherwise stipulated by the present Terms and Conditions or provided for by the international conventions, domestic laws and regulations which are mandatory for any section of the services provided by the Company, the Company’s liability for any consequence caused by its negligence, fault or any other reason in respect of claims arising from or in connection with loss of or damage to the Cargo shall in all cases be the lower of:

(1) The value of the Cargo which has been lost or damaged; or

(2) 1 special drawing rights (SDR) for each kilogram in the gross weight of the Cargo which has been lost, damaged, wrongly transported or delivered or which has caused the relevant claim (note: SDR shall have the definition given by the International Monetary Fund. The value of 1 SDR shall be determined by applying the exchange rate prevailing at the time a settlement agreement is concluded by the Parties or the time a judgment is entered by the competent court).

(2) 1 special drawing rights (SDR) for each kilogram in the gross weight of the Cargo which has been lost or damaged (note: SDR is defined as indicated by the International Monetary Fund. The value of 1 SDR shall be determined by applying the exchange rate prevailing at the time of the settlement agreement concluded by the Parties or the issuance time of the court decision).

10.2 For a claim caused by any delay in delivery of the Cargo where the Company is not exempt from liability under the present Terms and Conditions, the Company’s liability for such claim shall be limited by the amount of freight charged by it on the Cargo concerned.

10.3 For any claim of a type other than those set out in Clauses 10.1 and 10.2 hereof where the Company is not exempt from liability under the present Terms and Conditions, the limit of indemnity shall be the amount of the service fee charged by the Company for the Cargo concerned.

10.4 Notwithstanding Clauses 10.1, 10.2 and 10.3 above, the Company’s liability shall be limited to RMB 1,000,000 per occurrence giving rise to the claim.

10.5 The value of the Cargo shall be the sum of the Cargo’s value at the time when it is put into the Company’s custody, plus insurance premiums (if paid), and freight. The amount of any cost that is reduced or waived due to the loss of or damage to the Cargo shall be deducted from the payment of compensation.

10.6 Nothing in this Article shall prejudice the Company’s entitlement to a lower limitation of liability than the limits as set out above in this Article under any international conventions, national laws and regulations applicable to any section of the services provided by the Company, or shall constitute a waiver by the Company of any statutory limitation of liability which is more favourable to it.

XI. Notice

11.1 Where any Cargo has been lost or damaged, the designated consignee shall, at the time of receiving the Cargo, notify the Company of such loss or damage in writing and give a basic description thereof. Otherwise, the delivery of the Cargo shall constitute prima facie evidence of the Cargo’s being in apparent good condition on delivery. Where the loss or damage is not obvious, the Company shall be notified in writing thereof within 7 consecutive days upon the day after the date of delivery of the Cargo to the designated consignee. In the absence of such a written notice, the delivery of the Cargo shall also constitute prima facie evidence of the Cargo’s being in apparent good condition on delivery.

11.2 Any other claim by the Client not for loss of or damage to the Cargo shall be made in writing and notified to the Company within 14 consecutive days of the date upon which the Client became or should have become aware of any event or occurrence alleged to give rise to such claim. Any claim not made and notified as aforesaid shall be deemed to be waived except where the Client can prove that the claim could not be made within the specified time and has been made as soon as the obstacle had disappeared.

XII. Insurance

The Company will not effect any insurance unless it has received an express Instruction from the Client. All insurances effected by the Company must be subject to the usual exemptions and conditions of the policies of the insurance company or the insurer taking the risk. The Company shall not be obliged to effect separate insurance for each consignment. If the liability of the relevant insurer is disputed for any reason, the insured may only be entitled to raise claims against the insurer while the Company shall not be held liable for such claim even if the amount of the premiums stated in the insurance policy is different from that collected by the Company or that paid by the Client to the Company. Where the Company agrees to effect any insurance, the Company endeavors purely as the agent of the Client to effect such insurance without any warranty or undertaking that such insurance will be accepted by the relevant insurance company or insurer.

XIII. Time Bar

Unless otherwise expressly agreed in writing or unless the Client has brought a lawsuit against the Company in accordance with Article XIV of the present Terms and Conditions, the Company shall be released of all liabilities upon expiration of a 9-month period following the date the relevant Cargo has been or should have been delivered or the date when the Client becomes entitled to treat any undelivered Cargo as lost.