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Terms and Conditions
GENERAL TERMS AND CONDITIONS (GENERAL TERMS AND CONDITIONS)
The present General Conditions will be applicable to all users of Terminal II of the Port of Manzanillo, Colima, except in those cases in which Contecon Manzanillo, S.A. de C.V. has agreed particular conditions of service with users of the Port, through the signing of a specific contract.
1. DEFINITIONS AND INTERPRETATION
This code governs the following:
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1.1 In these General Terms and Conditions, unless the context indicates otherwise, the following terms and expressions shall have the following meanings:
Container Ship or Vessel Means a vessel equipped for the carriage of Containers and/or Non-Containerised Cargo which can be adequately secured, either on or below deck of the Vessel, including all lashing equipment necessary to achieve the necessary security of the Containers on board;
Cargo: Refers to goods of any kind, size, weight and measurement, carried or to be carried in a Container or in an Out of Gauge Container (OOG) and includes any non-containerised Cargo carried in a Container Ship;
Non-Containerised Cargo Refers to non-containerised cargo accepted for carriage/freight on a Container Ship that cannot be handled by normal use of equipment (spreader) and requires the use of special devices/accessories for proper handling;
Container means any ISO standard container 20, 40, 45 feet long, 8 feet wide and 86/ 96 feet high, partially or fully loaded, or empty, including, but not limited to, containers for transporting perishable goods requiring refrigeration or heating (dry containers), flat-rack containers, open top containers, containers with artificial tween-deck containers, pallet-wide containers, platform containers, reefer containers, and tank containers, with ISO recommendations for their transport of liquid bulk, with ISO recommendations for their transport, pallet-wide containers, platform containers, reefer containers, and tank containers, with ISO recommendations for lifting that comply with the safety requirements of the CSC (Convention for Safe Containers), and that can be handled by means of spreader equipment;
Oversized or Oversized Container Refers to a Container in which the load exceeds the standard dimensions of the Container which must be handled by special devices that are adapted to the equipment handling the Container (container spreader);
Assignment Agreement refers to the partial assignment agreement of rights and obligations in respect of the Container Terminal, entered into between the Terminal Operator and Administración Portuaria Integral de Manzanillo, S.A. de C.V., dated 3 June 2010.
Custody means:
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(a) In respect of import Containers (loaded or empty) or Non-Containerised Cargo: (i) the custody period begins when the Container or Non-Containerised Cargo is physically lifted from the deck of the Ship, its hold, or from the top of other Containers on the Ship, and ends when the Container or Non-Containerised Cargo is placed by the Terminal Operator's cargo handling equipment on the truck, or railway unit, or other vehicle removing the Container or Cargo from the Terminal for delivery to the consignee, or, if shorter, (ii) the period during which the Shipper is responsible for the Cargo under the bill of lading or other transport documents, if any have been issued;
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(b) In respect of export Containers (loaded or empty) or Non-Containerised Cargo, the custody period begins when the Container or Non-Containerised Cargo is physically removed from the truck, vehicle, or rail unit, by the Terminal Operator's shunting equipment for stacking/stowage in the Terminal's container yard, and ends when the Container or Non-Containerised Cargo is placed on deck, in the holds or on top of another container on the Vessel;
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(c) In respect of transhipment Containers (loaded or empty) or Non-Containerised Cargo, the custody period begins when the Container or Non-Containerised Cargo is physically removed from the deck, holds or top of other containers on a Vessel, and ends when the Container or Non-Containerised Cargo is placed on deck, in holds or on top of another container on that other Vessel;
Confidential Information means the provisions of these Terms and Conditions and all other information in any form or medium which is confidential or which is not available to the public (whether in whole or in part, including its contents and elements) including tariffs, discounts, commercial, financial, advertising, technical, trade secrets, know-how, business methods and other information in any other form or medium, whether disclosed orally or in writing, together with any reproduction of such information in any form or medium, or any part(s) of such information;
Ley de Puertos means the Ports Law and its Regulations (Mexico) in full force and effect.
Terminal Operator or Operator means Contecon Manzanillo, S.A. de C.V.;
Liabilities or Liabilities means any and all costs (including the costs of investigation and defence of any claim), expenses, claims, demands, losses, damages, liabilities, responsibilities, court orders, judgments or convictions, awards, fines, penalties, proceedings and judgments of any nature whatsoever;
Representative shall have the meaning referred to in paragraph 8.1;
Health and Safety Standards means the Terminal Operator's health and safety standards which are notified to the
Terminal Operator that are notified to the User from time to time, in any form or by any means;
Services means any of the services that the Terminal Operator provides or makes available to Users, including without limitation Container and Cargo handling;
SDR stands for special drawing rights, of a commercial nature, as defined by the International Monetary Fund;
Tariffs means the tariffs and their rules of application registered with the Ministry of Communications and Transport and deposited with the Administración Portuaria Integral de Manzanillo, S.A. de C.V.
Tariff means the official document containing the Tariffs and the rules of application.
TEU: means twenty-foot equivalent unit and, with respect to the calculation of TEUs, a 20-foot Container comprises one (1) TEU and a 40-foot and 45-foot
20-foot Container comprises one (1) TEU and a 40-foot and 45-foot Container is equivalent to two (2) TEUs;
Container Terminal or Terminal means the facilities of the Container Terminal II located at the Port of Manzanillo, Colima; User means (i) any person, whether natural or legal, who receives the Services or benefits from the Services, including without limitation, the owner of, the charterer of (of whatever nature), or any other person who has or may have an interest in bringing a Container Ship into the Container Terminal, the master of the Container Ship and any person who has control of the operation of such Container Ship, the owner or any other person who has an interest in the Cargo or who may have an interest in the Cargo; (ii) the owner or any other person who has an interest or may take an interest in the Containers or in any equipment, machinery, package, box, platform; (iii) the owner or any other person who has an interest in any road or rail vehicle entering the Container Terminal or who may take an interest in the same; (iv) any person driving or operating such vehicle; and (v) any person using and/or entering the Container Terminal or directly benefiting from the Services.
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1.2 These General Conditions are subject to the Harbour Act and nothing contained in these General Conditions shall be construed as a waiver of any of the Terminal Operator's rights or immunities, or as an increase in any of its liabilities or obligations under the Harbour Act. If any part of these General Conditions contravenes the Port Act, or any other provision of law, to any extent whatsoever, such part shall be void in respect of such services. The foregoing shall not affect the validity of the remainder of these General Conditions.
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1.3 In these General Terms and Conditions:
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1.3.1 a provision of law includes a reference to it as amended or re-enacted or both at any time, as well as any subordinate legislation made or other thing done pursuant to the provision of law or pursuant to such re-enactment;
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1.3.2 a legal person includes reference to a government, state, state agency, corporation, partnership, partnership council, association or partnership;
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1.3.3 a natural person includes the legal representatives of legal persons, their successors and permitted assigns;
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1.3.4 the singular includes the plural and vice versa (unless otherwise specified);
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1.3.5 it shall be understood that any word followed by the word including shall be construed to mean the generality of the words preceding it;
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1.3.6 a reference to a Condition, unless otherwise specified, is a reference to a provision of these Terms and Conditions.
1.4 The headings in these General Conditions do not affect their interpretation.
1.1 In these General Terms and Conditions, unless the context indicates otherwise, the following terms and expressions shall have the following meanings:
Container Ship or Vessel Means a vessel equipped for the carriage of Containers and/or Non-Containerised Cargo which can be adequately secured, either on or below deck of the Vessel, including all lashing equipment necessary to achieve the necessary security of the Containers on board;
Cargo: Refers to goods of any kind, size, weight and measurement, carried or to be carried in a Container or in an Out of Gauge Container (OOG) and includes any non-containerised Cargo carried in a Container Ship;
Non-Containerised Cargo Refers to non-containerised cargo accepted for carriage/freight on a Container Ship that cannot be handled by normal use of equipment (spreader) and requires the use of special devices/accessories for proper handling;
Container means any ISO standard container 20, 40, 45 feet long, 8 feet wide and 86/ 96 feet high, partially or fully loaded, or empty, including, but not limited to, containers for transporting perishable goods requiring refrigeration or heating (dry containers), flat-rack containers, open top containers, containers with artificial tween-deck containers, pallet-wide containers, platform containers, reefer containers, and tank containers, with ISO recommendations for their transport of liquid bulk, with ISO recommendations for their transport, pallet-wide containers, platform containers, reefer containers, and tank containers, with ISO recommendations for lifting that comply with the safety requirements of the CSC (Convention for Safe Containers), and that can be handled by means of spreader equipment;
Oversized or Oversized Container Refers to a Container in which the load exceeds the standard dimensions of the Container which must be handled by special devices that are adapted to the equipment handling the Container (container spreader);
Assignment Agreement refers to the partial assignment agreement of rights and obligations in respect of the Container Terminal, entered into between the Terminal Operator and Administración Portuaria Integral de Manzanillo, S.A. de C.V., dated 3 June 2010.
Custody means:
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(a) In respect of import Containers (loaded or empty) or Non-Containerised Cargo: (i) the custody period begins when the Container or Non-Containerised Cargo is physically lifted from the deck of the Ship, its hold, or from the top of other Containers on the Ship, and ends when the Container or Non-Containerised Cargo is placed by the Terminal Operator's cargo handling equipment on the truck, or railway unit, or other vehicle removing the Container or Cargo from the Terminal for delivery to the consignee, or, if shorter, (ii) the period during which the Shipper is responsible for the Cargo under the bill of lading or other transport documents, if any have been issued;
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(b) In respect of export Containers (loaded or empty) or Non-Containerised Cargo, the custody period begins when the Container or Non-Containerised Cargo is physically removed from the truck, vehicle, or rail unit, by the Terminal Operator's shunting equipment for stacking/stowage in the Terminal's container yard, and ends when the Container or Non-Containerised Cargo is placed on deck, in the holds or on top of another container on the Vessel;
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(c) In respect of transhipment Containers (loaded or empty) or Non-Containerised Cargo, the custody period begins when the Container or Non-Containerised Cargo is physically removed from the deck, holds or top of other containers on a Vessel, and ends when the Container or Non-Containerised Cargo is placed on deck, in holds or on top of another container on that other Vessel;
Confidential Information means the provisions of these Terms and Conditions and all other information in any form or medium which is confidential or which is not available to the public (whether in whole or in part, including its contents and elements) including tariffs, discounts, commercial, financial, advertising, technical, trade secrets, know-how, business methods and other information in any other form or medium, whether disclosed orally or in writing, together with any reproduction of such information in any form or medium, or any part(s) of such information;
Ley de Puertos means the Ports Law and its Regulations (Mexico) in full force and effect.
Terminal Operator or Operator means Contecon Manzanillo, S.A. de C.V.;
Liabilities or Liabilities means any and all costs (including the costs of investigation and defence of any claim), expenses, claims, demands, losses, damages, liabilities, responsibilities, court orders, judgments or convictions, awards, fines, penalties, proceedings and judgments of any nature whatsoever;
Representative shall have the meaning referred to in paragraph 8.1;
Health and Safety Standards means the Terminal Operator's health and safety standards which are notified to the Terminal Operator that are notified to the User from time to time, in any form or by any means;
Services means any of the services that the Terminal Operator provides or makes available to Users, including without limitation Container and Cargo handling;
SDR stands for special drawing rights, of a commercial nature, as defined by the International Monetary Fund;
Tariffs means the tariffs and their rules of application registered with the Ministry of Communications and Transport and deposited with the Administración Portuaria Integral de Manzanillo, S.A. de C.V.
Tariff means the official document containing the Tariffs and the rules of application.
TEU: means twenty-foot equivalent unit and, with respect to the calculation of TEUs, a 20-foot Container comprises one (1) TEU and a 40-foot and 45-foot 20-foot Container comprises one (1) TEU and a 40-foot and 45-foot Container is equivalent to two (2) TEUs;
Container Terminal or Terminal means the facilities of the Container Terminal II located at the Port of Manzanillo, Colima; User means (i) any person, whether natural or legal, who receives the Services or benefits from the Services, including without limitation, the owner of, the charterer of (of whatever nature), or any other person who has or may have an interest in bringing a Container Ship into the Container Terminal, the master of the Container Ship and any person who has control of the operation of such Container Ship, the owner or any other person who has an interest in the Cargo or who may have an interest in the Cargo; (ii) the owner or any other person who has an interest or may take an interest in the Containers or in any equipment, machinery, package, box, platform; (iii) the owner or any other person who has an interest in any road or rail vehicle entering the Container Terminal or who may take an interest in the same; (iv) any person driving or operating such vehicle; and (v) any person using and/or entering the Container Terminal or directly benefiting from the Services.
1.2 These General Conditions are subject to the Harbour Act and nothing contained in these General Conditions shall be construed as a waiver of any of the Terminal Operator's rights or immunities, or as an increase in any of its liabilities or obligations under the Harbour Act. If any part of these General Conditions contravenes the Port Act, or any other provision of law, to any extent whatsoever, such part shall be void in respect of such services. The foregoing shall not affect the validity of the remainder of these General Conditions.
1.3 In these General Terms and Conditions:
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1.3.1 a provision of law includes a reference to it as amended or re-enacted or both at any time, as well as any subordinate legislation made or other thing done pursuant to the provision of law or pursuant to such re-enactment;
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1.3.2 a legal person includes reference to a government, state, state agency, corporation, partnership, partnership council, association or partnership;
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1.3.3 a natural person includes the legal representatives of legal persons, their successors and permitted assigns;
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1.3.4 the singular includes the plural and vice versa (unless otherwise specified);
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1.3.5 it shall be understood that any word followed by the word including shall be construed to mean the generality of the words preceding it;
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1.3.6 a reference to a Condition, unless otherwise specified, is a reference to a provision of these Terms and Conditions.
1.4 The headings in these General Conditions do not affect their interpretation.
2. SERVICES
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2.1 The Terminal Operator:
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2.1.1 shall provide the Services subject to and in accordance with these General Terms and Conditions;
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2.1.2 provide the Services with due care and skill;
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2.1.3 comply with all applicable laws and regulations applicable to the relevant Services;
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2.2 With respect to specific instructions given by the User in writing and accepted by the Terminal Operator in the same form, the Terminal Operator reserves full freedom with respect to the means and procedures to be used in the provision of the Services. The Terminal Operator may vary such instructions of the User (even if accepted by the Terminal Operator) in any respect, if the Terminal Operator considers it necessary in the interests of the User, in which case the User shall reimburse the Terminal Operator for all expenses reasonably incurred.
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2.3 The Container Terminal operates twenty-four (24) hours a day, on a daily basis throughout the year, except for the operation of the gatehouses, which are subject to the schedules established by the Customs Authority.
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2.4 Normal working hours are established in the Tariff and its application rules. Any Service required to be provided outside normal working hours must be agreed in advance with the Terminal Operator and overtime rates shall be applied in accordance with the Tariff and its implementing rules.
2.1 The Terminal Operator:
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2.1.1 shall provide the Services subject to and in accordance with these General Terms and Conditions;
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2.1.2 provide the Services with due care and skill;
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2.1.3 comply with all applicable laws and regulations applicable to the relevant Services;
2.2 With respect to specific instructions given by the User in writing and accepted by the Terminal Operator in the same form, the Terminal Operator reserves full freedom with respect to the means and procedures to be used in the provision of the Services. The Terminal Operator may vary such instructions of the User (even if accepted by the Terminal Operator) in any respect, if the Terminal Operator considers it necessary in the interests of the User, in which case the User shall reimburse the Terminal Operator for all expenses reasonably incurred.
2.3 The Container Terminal operates twenty-four (24) hours a day, on a daily basis throughout the year, except for the operation of the gatehouses, which are subject to the schedules established by the Customs Authority.
2.4 Normal working hours are established in the Tariff and its application rules. Any Service required to be provided outside normal working hours must be agreed in advance with the Terminal Operator and overtime rates shall be applied in accordance with the Tariff and its implementing rules.
3. SCOPE AND APPLICATION OF THESE GENERAL CONDITIONS
3.1 These General Terms and Conditions shall apply to:
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3.1.1 all Services provided to the User;
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3.1.2 the use by any User of the Container Terminal and/or the Container Terminal facilities;
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3.1.3 all Container Vessels berthing at the Container Terminal;
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3.1.4 all Users to whom the Services are provided or who benefit from them, use and/or enter the Container Terminal; and
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3.1.5 All Cargo or Containers entering or moving within the Container Terminal.
3.1 These General Terms and Conditions shall apply to:
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3.1.1 all Services provided to the User;
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3.1.2 the use by any User of the Container Terminal and/or the Container Terminal facilities;
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3.1.3 all Container Vessels berthing at the Container Terminal;
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3.1.4 all Users to whom the Services are provided or who benefit from them, use and/or enter the Container Terminal; and
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3.1.5 All Cargo or Containers entering or moving within the Container Terminal.
4. APPLICATION TO DOCK
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4.1 Users shall request authorisation from the port authority for the berthing of Vessels.
The Terminal Operator shall allocate the quay in accordance with the berthing windows agreed with the Users, without prejudice to the provisions of the Port Law, its Regulations, and the Port Operating Rules.
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4.2 The User shall submit to the Terminal Operator a request to berth at the Container Terminal at least 48 hours before the Vessel's ETA and subsequently 24 and 12 hours before the ETA.
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4.3 If a Vessel arrives at the Container Terminal outside its berthing window, the Terminal Operator shall make reasonable efforts to provide a berth as soon as possible, in accordance with the Terminal operations, without affecting other Users and observing the provisions of the Port Act, its Regulations and the Port Operating Rules.
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4.4 In respect of each Vessel, the Shipper shall inform the Terminal Operator of all relevant details of the Containers, Oversized or Over Oversized Containers (OOG) and/or Non-Containerized Cargo to be loaded or discharged, at least 24 hours in advance of the Vessel's estimated time of arrival (ETA). Such details shall include at least destination, temperature, humidity and ventilation information for reefer containers, as well as information for containers with hazardous cargo. In the event that the reference information is not provided with the required advance notice, the Vessel shall await clearance to berth at the Terminal after the required 24 hour period has elapsed.
All information provided by Users must comply with the applicable legislation and with the requirements of the Customs, Sanitary and other competent Authorities. The Terminal Operator shall not be held liable for any incorrect and/or incomplete information provided for loading and unloading, and the User undertakes to indemnify and hold harmless the Container Terminal for any damage or loss caused to it as a result of such incorrect or incomplete information.
4.1 Users shall request authorisation from the port authority for the berthing of Vessels.
The Terminal Operator shall allocate the quay in accordance with the berthing windows agreed with the Users, without prejudice to the provisions of the Port Law, its Regulations, and the Port Operating Rules.
4.2 The User shall submit to the Terminal Operator a request to berth at the Container Terminal at least 48 hours before the Vessel's ETA and subsequently 24 and 12 hours before the ETA.
4.3 If a Vessel arrives at the Container Terminal outside its berthing window, the Terminal Operator shall make reasonable efforts to provide a berth as soon as possible, in accordance with the Terminal operations, without affecting other Users and observing the provisions of the Port Act, its Regulations and the Port Operating Rules.
4.4 In respect of each Vessel, the Shipper shall inform the Terminal Operator of all relevant details of the Containers, Oversized or Over Oversized Containers (OOG) and/or Non-Containerized Cargo to be loaded or discharged, at least 24 hours in advance of the Vessel's estimated time of arrival (ETA). Such details shall include at least destination, temperature, humidity and ventilation information for reefer containers, as well as information for containers with hazardous cargo. In the event that the reference information is not provided with the required advance notice, the Vessel shall await clearance to berth at the Terminal after the required 24 hour period has elapsed.
All information provided by Users must comply with the applicable legislation and with the requirements of the Customs, Sanitary and other competent Authorities. The Terminal Operator shall not be held liable for any incorrect and/or incomplete information provided for loading and unloading, and the User undertakes to indemnify and hold harmless the Container Terminal for any damage or loss caused to it as a result of such incorrect or incomplete information.
5. DECLARATIONS AND OBLIGATIONS OF THE USER
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5.1 The User shall submit all documents and information detailed in the Terminal's operating rules, or as requested, at least 24 hours before the estimated time of arrival (ETA) of the Container Ship.
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5.2 At all times when a Vessel berths at the Container Terminal, the User shall ensure that the Vessel:
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5.2.1 provide adequate and safe lighting when entering and exiting (for Terminal Operator personnel);
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5.2.2 have personnel and crew available on board with an adequate level of experience and capabilities to be able to respond to emergencies and to enable the Terminal Operator to provide the required Services;
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5.2.3 maintain engines in a state of readiness to respond to emergency situations and to avoid delays in undocking manoeuvres;
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5.2.4 that its crew members comply at all times with Health and Safety and other applicable legal requirements; and
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5.2.5 complies with all laws and regulations applicable to the Vessel, the Cargo, the Containers, their activities and the use of the Container Terminal.
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5.3 The User shall be responsible for complying with all formalities, procedures and regulations established by the customs authorities, as well as with the formalities and procedures established by any governmental authority or other agency having jurisdiction in the matter that relates to the Cargo, Containers and/or the Vessel, and for obtaining all licenses and authorisations necessary for the transport, export and/or import of the Cargo. The Terminal Operator shall have no liability whatsoever in this regard, the User being solely responsible for carrying out the respective procedures and obtaining the licenses and authorisations required by law. By virtue of the above, the User undertakes to hold the Terminal Operator harmless from any claims, fines, penalties or other charges or payments resulting from non-compliance with this provision.
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5.4 User Declarations
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5.4.1 The User declares and agrees that:
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(a) has the authority to contract with the Container Terminal on the terms of these General Conditions in relation to the Container Vessels, Cargo and Containers and accepts these General Conditions not only for himself, but also as agent for and on behalf of the owners of the Container Vessel (if chartered by the User), Cargo and Containers, or any other person who has or may become interested in the Cargo;
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(b) all documentation and information provided by the User or its representatives in connection with any Cargo and/or Containers is accurate, correct and complete.
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5.4.2 In respect of all Cargo and Containers, the User represents and warrants that:
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(a) are properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate for any operations or transactions involving the Cargo and/or Containers, for which the User shall be liable for any loss or damage arising from failure to comply with the foregoing;
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(b) are not susceptible to the release of hazardous dust, gas, vapours, liquids or radiation or any other toxic, explosive, noxious or similar substances and the User shall be liable in the event of any such occurrence;
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(c) are not infested, verminous, rotten or subject to fungal attack and not susceptible to fungal attack while at the Container Terminal, for which the User shall be liable in the event of any of the above circumstances;
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(d) are not overheated or underheated or likely to be overheated or underheated while at the Container Terminal, and the User shall be liable in the event of any such occurrence;
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(e) will not, under any circumstances, contaminate or cause danger, damage or pollution to any person, the Container Terminal, any other cargo, equipment, vessel, health, the general public, the adjacent environment or generally, for which the User shall be liable in the event of any such occurrence;
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(f) do not require special protection for safekeeping or custody (other than as agreed in writing between the Parties) arising from their vulnerability to heat, cold, moisture, salinity, theft or proximity to other cargo or flammability, and shall be kept safe either in the open air or in the Container Terminal's indoor facilities, and the User shall be liable for any loss or damage arising from failure to comply with the foregoing;
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(g) do not contain drugs, illegal, prohibited or stolen goods, contraband, pornography or other illegal material, as defined by applicable law, for which the User shall be solely liable for any loss, damage, penalty, sanction, offence, punishment, penalty or fine arising out of any breach or failure to comply with the foregoing; and
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(h) are fit for the purpose for which they were created and are in a suitable condition to be handled or operated by the Terminal Operator in the condition in which they are found, and the User shall be liable for any loss or damage arising from failure to do so.
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5.5 Compensation
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5.5.1 The User shall immediately indemnify the Terminal Operator against any liability assumed, incurred or suffered by the Terminal Operator, its employees, officers, representatives, insurers or reinsurers as a result of or in connection with any of the following:
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(a) for any breach by the User of the obligations set out in these Terms and Conditions, as well as for misrepresentation in the representations set out (but not limited to) in this Condition 5; and
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(b) if the Terminal Operator acts on the instructions of the User and/or its representatives.
5.1 The User shall submit all documents and information detailed in the Terminal's operating rules, or as requested, at least 24 hours before the estimated time of arrival (ETA) of the Container Ship.
5.2 At all times when a Vessel berths at the Container Terminal, the User shall ensure that the Vessel:
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5.2.1 provide adequate and safe lighting when entering and exiting (for Terminal Operator personnel);
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5.2.2 have personnel and crew available on board with an adequate level of experience and capabilities to be able to respond to emergencies and to enable the Terminal Operator to provide the required Services;
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5.2.3 maintain engines in a state of readiness to respond to emergency situations and to avoid delays in undocking manoeuvres;
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5.2.4 that its crew members comply at all times with Health and Safety and other applicable legal requirements; and
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5.2.5 complies with all laws and regulations applicable to the Vessel, the Cargo, the Containers, their activities and the use of the Container Terminal.
5.3 The User shall be responsible for complying with all formalities, procedures and regulations established by the customs authorities, as well as with the formalities and procedures established by any governmental authority or other agency having jurisdiction in the matter that relates to the Cargo, Containers and/or the Vessel, and for obtaining all licenses and authorisations necessary for the transport, export and/or import of the Cargo. The Terminal Operator shall have no liability whatsoever in this regard, the User being solely responsible for carrying out the respective procedures and obtaining the licenses and authorisations required by law. By virtue of the above, the User undertakes to hold the Terminal Operator harmless from any claims, fines, penalties or other charges or payments resulting from non-compliance with this provision.
5.4 User Declarations
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5.4.1 The User declares and agrees that:
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(a) has the authority to contract with the Container Terminal on the terms of these General Conditions in relation to the Container Vessels, Cargo and Containers and accepts these General Conditions not only for himself, but also as agent for and on behalf of the owners of the Container Vessel (if chartered by the User), Cargo and Containers, or any other person who has or may become interested in the Cargo;
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(b) all documentation and information provided by the User or its representatives in connection with any Cargo and/or Containers is accurate, correct and complete.
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5.4.2 In respect of all Cargo and Containers, the User represents and warrants that:
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(a) are properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate for any operations or transactions involving the Cargo and/or Containers, for which the User shall be liable for any loss or damage arising from failure to comply with the foregoing;
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(b) are not susceptible to the release of hazardous dust, gas, vapours, liquids or radiation or any other toxic, explosive, noxious or similar substances and the User shall be liable in the event of any such occurrence;
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(c) are not infested, verminous, rotten or subject to fungal attack and not susceptible to fungal attack while at the Container Terminal, for which the User shall be liable in the event of any of the above circumstances;
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(d) are not overheated or underheated or likely to be overheated or underheated while at the Container Terminal, and the User shall be liable in the event of any such occurrence;
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(e) will not, under any circumstances, contaminate or cause danger, damage or pollution to any person, the Container Terminal, any other cargo, equipment, vessel, health, the general public, the adjacent environment or generally, for which the User shall be liable in the event of any such occurrence;
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(f) do not require special protection for safekeeping or custody (other than as agreed in writing between the Parties) arising from their vulnerability to heat, cold, moisture, salinity, theft or proximity to other cargo or flammability, and shall be kept safe either in the open air or in the Container Terminal's indoor facilities, and the User shall be liable for any loss or damage arising from failure to comply with the foregoing;
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(g) do not contain drugs, illegal, prohibited or stolen goods, contraband, pornography or other illegal material, as defined by applicable law, for which the User shall be solely liable for any loss, damage, penalty, sanction, offence, punishment, penalty or fine arising out of any breach or failure to comply with the foregoing; and
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(h) are fit for the purpose for which they were created and are in a suitable condition to be handled or operated by the Terminal Operator in the condition in which they are found, and the User shall be liable for any loss or damage arising from failure to do so.
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5.5 Compensation
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5.5.1 The User shall immediately indemnify the Terminal Operator against any liability assumed, incurred or suffered by the Terminal Operator, its employees, officers, representatives, insurers or reinsurers as a result of or in connection with any of the following:
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(a) for any breach by the User of the obligations set out in these Terms and Conditions, as well as for misrepresentation in the representations set out (but not limited to) in this Condition 5; and
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(b) if the Terminal Operator acts on the instructions of the User and/or its representatives.
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6. HAZARDOUS CARGO
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6.1 Unless the Terminal Operator gives its express prior written consent, the Terminal Operator shall not accept to handle Cargo, materials or wastes that are or may become hazardous, corrosive, reactive, explosive, toxic, flammable, biologically infectious (whether or not included in the first or second list of highly hazardous activities issued by the Ministry of Environment and Natural Resources, applicable environmental legislation, official standards, manuals, codes or international legislation), noxious and/or harmful (including radioactive materials), which are harmful or which may be likely to harm any property, person or the environment.
In the event that the Terminal Operator expressly agrees in writing to handle Hazardous Cargoes:
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6.1.1 The User acknowledges and accepts that it is solely responsible for the generation, handling and final disposal of hazardous cargo, however, the Terminal Operator may carry out the handling of cargo on its own (after obtaining the corresponding authorization) or contract the services of handling hazardous substances and/or hazardous waste with companies authorized by the Ministry of Environment and Natural Resources or competent entity, at the sole expense of the User.
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In relation to the above and by virtue of the fact that the Terminal Operator will handle hazardous Cargoes, the Terminal Operator's responsibility will be limited to the handling of hazardous substances and waste within the Container Terminal, except when the services of companies authorised by the Ministry of the Environment and Natural Resources or competent entity are contracted, in which case the responsibility for handling will be theirs and will begin from the moment the Cargoes are delivered to them by the User in accordance with the definition of Custody established in Condition 1.1, in accordance with the provisions of the Federal Law on Environmental Liability, the General Law for the Prevention and Integral Management of Waste, the Regulations of the General Law for the Prevention and Integral Management of Waste, the General Law on Ecological Balance and Environmental Protection and the Mexican Official Standards.
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6.1.2 the User shall immediately submit to the Terminal Operator such information and/or documentation as may be necessary to fulfil its obligations in relation to such Cargo, in accordance with applicable environmental and/or occupational health and safety laws, regulations and/or requirements, including but not limited to information about the nature of the Cargo, the proper form and method of storage, handling and transport, as well as, safety data sheets in Spanish for all hazardous chemicals used in accordance with the Mexican Official Standard NOM-018-STPS-2015 Harmonized System for the identification and communication of hazards and risks by hazardous chemicals in the workplace (and/or any that complements and/or replaces it); and the documentation reporting substances on the lists of highly hazardous activities issued by the Ministry of Environment and Natural Resources; and
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6.1.3 the Container shall be clearly labelled/marked on the outside, indicating the nature and character of any Cargo it contains inside, in order to comply with all applicable laws, requirements and/or regulations, specifically to comply with the Federal Regulation on Safety and Health at Work and the Harmonised System for the Identification and Communication of Hazards and Risks from Hazardous Chemical Substances and Mixtures that the User has in accordance with the Mexican Official Standard NOM-018-STPS-2015, which establishes the harmonised system for the identification and communication of hazards and risks from hazardous chemicals in workplaces, or in its case according to the Globally Harmonised System for the Classification and Labelling of Chemicals adopted by the United Nations, through the Committee of Experts on the Transport of Hazardous Substances of the Economic and Social Council of the United Nations.
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6.2 If the User fails to provide such information and the Terminal Operator is not aware of the hazardous nature of the Cargo and the precautions to be taken and if, at any time, it is considered a danger to life, property or the environment, the Terminal Operator may dispose of, destroy or render the Cargo unusable, as the circumstances may require, without any right to compensation to the User, and the User shall be liable for any costs, damages and losses resulting from the handling, disposal, destruction of the Cargo or rendering the same harmless, it being understood that any such operations shall be carried out in accordance with the General Law for the Prevention and Integral Management of Waste, the Regulations of the General Law for the Prevention and Integral Management of Waste, the Fiscal Code of the Federation, the Regulations of the Fiscal Code of the Federation or any other applicable legislation on environmental and fiscal matters.
The burden of proof in respect of the notification made to the Terminal Operator as to the characteristics or exact nature of the Cargo hazard shall be the responsibility of the Shipper.
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6.3 The User shall indemnify and hold the Terminal Operator harmless from and against any Liability, including environmental Liability, arising out of any breach of the provisions set out in this Condition 6.
6.1 Unless the Terminal Operator gives its express prior written consent, the Terminal Operator shall not accept to handle Cargo, materials or wastes that are or may become hazardous, corrosive, reactive, explosive, toxic, flammable, biologically infectious (whether or not included in the first or second list of highly hazardous activities issued by the Ministry of Environment and Natural Resources, applicable environmental legislation, official standards, manuals, codes or international legislation), noxious and/or harmful (including radioactive materials), which are harmful or which may be likely to harm any property, person or the environment.
In the event that the Terminal Operator expressly agrees in writing to handle Hazardous Cargoes:
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6.1.1 The User acknowledges and accepts that it is solely responsible for the generation, handling and final disposal of hazardous cargo, however, the Terminal Operator may carry out the handling of cargo on its own (after obtaining the corresponding authorization) or contract the services of handling hazardous substances and/or hazardous waste with companies authorized by the Ministry of Environment and Natural Resources or competent entity, at the sole expense of the User.
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In relation to the above and by virtue of the fact that the Terminal Operator will handle hazardous Cargoes, the Terminal Operator's responsibility will be limited to the handling of hazardous substances and waste within the Container Terminal, except when the services of companies authorised by the Ministry of the Environment and Natural Resources or competent entity are contracted, in which case the responsibility for handling will be theirs and will begin from the moment the Cargoes are delivered to them by the User in accordance with the definition of Custody established in Condition 1.1, in accordance with the provisions of the Federal Law on Environmental Liability, the General Law for the Prevention and Integral Management of Waste, the Regulations of the General Law for the Prevention and Integral Management of Waste, the General Law on Ecological Balance and Environmental Protection and the Mexican Official Standards.
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6.1.2 the User shall immediately submit to the Terminal Operator such information and/or documentation as may be necessary to fulfil its obligations in relation to such Cargo, in accordance with applicable environmental and/or occupational health and safety laws, regulations and/or requirements, including but not limited to information about the nature of the Cargo, the proper form and method of storage, handling and transport, as well as, safety data sheets in Spanish for all hazardous chemicals used in accordance with the Mexican Official Standard NOM-018-STPS-2015 Harmonized System for the identification and communication of hazards and risks by hazardous chemicals in the workplace (and/or any that complements and/or replaces it); and the documentation reporting substances on the lists of highly hazardous activities issued by the Ministry of Environment and Natural Resources; and
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6.1.3 the Container shall be clearly labelled/marked on the outside, indicating the nature and character of any Cargo it contains inside, in order to comply with all applicable laws, requirements and/or regulations, specifically to comply with the Federal Regulation on Safety and Health at Work and the Harmonised System for the Identification and Communication of Hazards and Risks from Hazardous Chemical Substances and Mixtures that the User has in accordance with the Mexican Official Standard NOM-018-STPS-2015, which establishes the harmonised system for the identification and communication of hazards and risks from hazardous chemicals in workplaces, or in its case according to the Globally Harmonised System for the Classification and Labelling of Chemicals adopted by the United Nations, through the Committee of Experts on the Transport of Hazardous Substances of the Economic and Social Council of the United Nations.
6.2 If the User fails to provide such information and the Terminal Operator is not aware of the hazardous nature of the Cargo and the precautions to be taken and if, at any time, it is considered a danger to life, property or the environment, the Terminal Operator may dispose of, destroy or render the Cargo unusable, as the circumstances may require, without any right to compensation to the User, and the User shall be liable for any costs, damages and losses resulting from the handling, disposal, destruction of the Cargo or rendering the same harmless, it being understood that any such operations shall be carried out in accordance with the General Law for the Prevention and Integral Management of Waste, the Regulations of the General Law for the Prevention and Integral Management of Waste, the Fiscal Code of the Federation, the Regulations of the Fiscal Code of the Federation or any other applicable legislation on environmental and fiscal matters.
The burden of proof in respect of the notification made to the Terminal Operator as to the characteristics or exact nature of the Cargo hazard shall be the responsibility of the Shipper.
6.3 The User shall indemnify and hold the Terminal Operator harmless from and against any Liability, including environmental Liability, arising out of any breach of the provisions set out in this Condition 6.
7. RIGHTS OF THE TERMINAL OPERATOR
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7.1 The Terminal Operator may, at any time, inspect any Container Vessel, vehicle, Cargo, Container, equipment or other property which may be in the possession or under the control of the User, while the same remains at the Container Terminal, for the purpose of ensuring compliance with these General Conditions, the Contract of Assignment, applicable law, industry standards, customs regulations and the recommendations of the competent authorities.
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7.2 The Terminal Operator reserves the right to suspend and/or terminate the provision of the Services in the event of non-compliance by the User with any of these General Terms and Conditions without any liability on the part of the Operator.
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7.3 The Terminal Operator may reject damaged or deformed Containers or any Container which in its opinion is not in a satisfactory condition for the provision of the Services.
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7.4 The Terminal Operator may refuse to handle any Container or Cargo weighing in excess of the declared weight, or the safe working load of any equipment handling the Cargo. In the event that the Terminal Operator's loading equipment is used to handle an overweight Container or Cargo, the User shall indemnify and hold the Terminal Operator harmless from and against any liability, howsoever arising, in consequence of any loss or damage to property, death or personal injury (including third party property) and/or damage arising out of or caused by the handling of the overweight Container or Cargo.
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7.5 The Terminal Operator may install and operate any surveillance device to protect the security of its property, employees, and that of its customers and third parties, and to assist in the process of investigating and/or pursuing any criminal prosecution of any illegal act or any alleged breach of these Terms and Conditions.
7.1 The Terminal Operator may, at any time, inspect any Container Vessel, vehicle, Cargo, Container, equipment or other property which may be in the possession or under the control of the User, while the same remains at the Container Terminal, for the purpose of ensuring compliance with these General Conditions, the Contract of Assignment, applicable law, industry standards, customs regulations and the recommendations of the competent authorities.
7.2 The Terminal Operator reserves the right to suspend and/or terminate the provision of the Services in the event of non-compliance by the User with any of these General Terms and Conditions without any liability on the part of the Operator.
7.3 The Terminal Operator may reject damaged or deformed Containers or any Container which in its opinion is not in a satisfactory condition for the provision of the Services.
7.4 The Terminal Operator may refuse to handle any Container or Cargo weighing in excess of the declared weight, or the safe working load of any equipment handling the Cargo. In the event that the Terminal Operator's loading equipment is used to handle an overweight Container or Cargo, the User shall indemnify and hold the Terminal Operator harmless from and against any liability, howsoever arising, in consequence of any loss or damage to property, death or personal injury (including third party property) and/or damage arising out of or caused by the handling of the overweight Container or Cargo.
7.5 The Terminal Operator may install and operate any surveillance device to protect the security of its property, employees, and that of its customers and third parties, and to assist in the process of investigating and/or pursuing any criminal prosecution of any illegal act or any alleged breach of these Terms and Conditions.
8. REPRESENTATIVE
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8.1 The User may, subject to applicable law, upon presentation of the relevant power of attorney evidencing its authority, and upon written notice to the Terminal Operator, appoint a representative in respect of the Services (hereinafter the Representative), in which case the User shall be deemed to have authorised the Representative to act on behalf of the User in relation to all of its affairs, including paying all amounts due to the Terminal Operator or receiving payments under these General Terms and Conditions; the foregoing unless the User notifies the Terminal Operator in writing what the Representative's limitations will be:
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8.1.1 the Terminal Operator shall be entitled to act, at any time and on a regular basis thereafter, on any instruction, request, notice or communication it receives from the Representative, at any time, without prior reference to or confirmation from the User, and to pay any amounts due to or receive payments from the Representative, pursuant to these General Conditions (including any refunds);
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8.1.2 Any payment made by the Terminal Operator to the Representative pursuant to these General Conditions shall be held by the Representative in its capacity as bailee for the User and the receipt obtained by the Terminal Operator in respect of such payment shall be deemed to be full and sufficient evidence of payment made by the Terminal Operator; and
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8.1.3 written evidence of the appointment (i.e. power of attorney) of the Representative shall be delivered by the User to the Terminal Operator in original or certified copy, in accordance with Condition 8.1 above; and such appointment shall continue in force until the Terminal Operator receives written notice from the User that, as from the date of such notice, the Representative has ceased to have such status, and therefore shall no longer be entitled to make and/or receive payments on behalf of the User.
8.1 The User may, subject to applicable law, upon presentation of the relevant power of attorney evidencing its authority, and upon written notice to the Terminal Operator, appoint a representative in respect of the Services (hereinafter the Representative), in which case the User shall be deemed to have authorised the Representative to act on behalf of the User in relation to all of its affairs, including paying all amounts due to the Terminal Operator or receiving payments under these General Terms and Conditions; the foregoing unless the User notifies the Terminal Operator in writing what the Representative's limitations will be:
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8.1.1 the Terminal Operator shall be entitled to act, at any time and on a regular basis thereafter, on any instruction, request, notice or communication it receives from the Representative, at any time, without prior reference to or confirmation from the User, and to pay any amounts due to or receive payments from the Representative, pursuant to these General Conditions (including any refunds);
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8.1.2 Any payment made by the Terminal Operator to the Representative pursuant to these General Conditions shall be held by the Representative in its capacity as bailee for the User and the receipt obtained by the Terminal Operator in respect of such payment shall be deemed to be full and sufficient evidence of payment made by the Terminal Operator; and
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8.1.3 written evidence of the appointment (i.e. power of attorney) of the Representative shall be delivered by the User to the Terminal Operator in original or certified copy, in accordance with Condition 8.1 above; and such appointment shall continue in force until the Terminal Operator receives written notice from the User that, as from the date of such notice, the Representative has ceased to have such status, and therefore shall no longer be entitled to make and/or receive payments on behalf of the User.
9. FEES AND PAYMENT
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9.1 As consideration for the provision of the Services, the User shall pay the Tariffs, which may be modified from time to time by the Terminal Operator.
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9.2 Unless otherwise agreed in writing, all Fees shall be payable in advance, prior to the provision of the Services.
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9.3 None of the Fees include Value Added Tax, or any other tax, duty or fee imposed by any government or other authority at any time, which shall be paid by the User in the manner, time and place determined by applicable law.
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9.4 Unless otherwise agreed in writing, all payments due by the User under these Terms and Conditions shall be due in one instalment, without any set-off, abatement, restriction or condition, and without any deduction in respect of bank charges or otherwise, and may not be withheld by or on account of a counterclaim.
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9.5 Invoices shall be due on demand. The Terminal Operator reserves the right to charge interest at a rate of 1.5% percentage points above the Libor base rate at any time, calculated on a daily basis, on all amounts not received by the due date for payment.
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9.6 Without prejudice to any other rights and remedies, the Terminal Operator may have, under these General Conditions or otherwise, a general or specific privilege and/or lien (including a lien) over the Cargo, the Containers and any documents relating thereto, for all amounts which may at any time be due to the Terminal Operator under these General Conditions or otherwise.
9.1 As consideration for the provision of the Services, the User shall pay the Tariffs, which may be modified from time to time by the Terminal Operator.
9.2 Unless otherwise agreed in writing, all Fees shall be payable in advance, prior to the provision of the Services.
9.3 None of the Fees include Value Added Tax, or any other tax, duty or fee imposed by any government or other authority at any time, which shall be paid by the User in the manner, time and place determined by applicable law.
9.4 Unless otherwise agreed in writing, all payments due by the User under these Terms and Conditions shall be due in one instalment, without any set-off, abatement, restriction or condition, and without any deduction in respect of bank charges or otherwise, and may not be withheld by or on account of a counterclaim.
9.5 Invoices shall be due on demand. The Terminal Operator reserves the right to charge interest at a rate of 1.5% percentage points above the Libor base rate at any time, calculated on a daily basis, on all amounts not received by the due date for payment.
9.6 Without prejudice to any other rights and remedies, the Terminal Operator may have, under these General Conditions or otherwise, a general or specific privilege and/or lien (including a lien) over the Cargo, the Containers and any documents relating thereto, for all amounts which may at any time be due to the Terminal Operator under these General Conditions or otherwise.
10. CIVIL LIABILITY
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10.1 To the Container Ship
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10.1.1 The Terminal Operator shall only be liable for loss of or damage to any Container Ship, including its parts and all other equipment, to the extent that such loss or damage was caused by the negligence or wilful misconduct of the Terminal Operator or any party for whom the Container Terminal was directly responsible.
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10.1.2 The Terminal Operator's liability for wilful misconduct or negligence pursuant to Condition 10.1.1 shall at all times be limited to the lesser of: (a) the cost of reasonable repair or cost of replacement of the lost or damaged item (with an item of the same species, year and condition) of the Container Ship, or (b) to the full amount of the agreed consideration for the Services provided or requested from the Terminal Operator.
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10.2 To Containers
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10.2.1 The Terminal Operator shall only be liable for loss of or damage to any Container to the extent that such loss or damage is caused by the negligence or wilful misconduct of the Terminal Operator or any other party for which the Terminal Operator is directly responsible.
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10.2.2 The Terminal Operator's liability under Condition 10.2.1 above shall be limited to: (i) to the reasonable cost of repair or replacement cost (with an item of the same species, year and condition) of the affected Container, or (ii) to the full amount of the agreed consideration for the Services provided or requested from the Terminal Operator, whichever is less.
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10.3 On Load
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10.3.1 The Terminal Operator (or any other party for whom the Terminal Operator is responsible) shall be entitled to the benefit of such defences, limitations and exclusions of liability as are available to the Shipper under the bill of lading or under such other transport documents evidencing a contract of carriage as may have been issued in respect of Cargo carried by the Shipper.
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10.3.2 In the event that no bill of lading or other transport document has been issued in respect of Cargo as aforesaid, the Terminal Operator shall only be liable for loss of or damage to any Cargo to the extent that the damage occurred by reason of the negligence or wilful default of the Terminal Operator or any other party for whom the Terminal Operator is responsible, and such liability shall be limited to the lesser of either of the following: (a) the reasonable cost of repair or the cost of replacement (with an item of the same species, year and condition) of the Cargo; or (b) a maximum of two (2) SDRs (Special Drawing Rights) per kilogram gross weight of Cargo lost or damaged.
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10.4 Delays
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10.4.1 The Terminal Operator assumes no liability whatsoever or howsoever arising (including negligence) for delay, or in relation to any failure to meet any time limit, or for any delay in the performance of the Services (including Containers, Cargo or Vessels).
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10.4.2 Without prejudice to Condition 10.4.1, if the Terminal Operator is found to be liable for loss or damage resulting from any delay, or failure to meet any time limit for the performance of the Services, the Terminal Operator's liability shall in no circumstances exceed a sum equal to the amount of the Charges for the Services provided in respect of the Containers, Cargo or Vessels concerned.
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10.5 Exclusions
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10.5.1 The Terminal Operator shall not be liable for loss of or damage to any Vessel, Container or Cargo pursuant to the provisions of this Condition 10 unless the Shipper proves that the loss or damage was caused directly by the Terminal Operator while such Container, Vessel or Cargo was in the Custody of the Terminal Operator. If the loss or damage is the result or consequence of the act or omission of the User or any other person, the Terminal Operator shall be exonerated from any liability.
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10.5.2 The Terminal Operator shall not be liable for loss of or damage to any Vessel, Container or Cargo in accordance with the provisions of this Condition 10 unless the Terminal Operator's cargo handling equipment has been used.
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10.5.3 Except as set out in this Condition 10, the Terminal Operator shall not be liable for loss or damage to any Container Ship, Cargo or Container however arising (whether caused by negligence or otherwise).
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10.6 General Liability
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10.6.1 Notwithstanding any other provision contained in these General Conditions, the Terminal Operator shall in no event and under no circumstances be liable for any loss of profit, loss of sales, loss or interruption of business, loss of intangibles or reputation, claims of third parties (in each case whether direct or indirect), or for any indirect or consequential loss, punitive and indirect damages in respect of any claims, loss or damage, whether arising in tort (including negligence), custody, breach of contract, breach of statutory or other provisions, under or in connection with these Terms and Conditions, the performance or failure or delay in performance of the Services, or of any obligation contained in these Terms and Conditions (including the delay of a Vessel or Cargo) or the termination of the Contract arising out of these Terms and Conditions.
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10.6.2 Nothing contained in these General Conditions shall exclude the liability of the Terminal Operator for death, any disability or injury caused by its negligence, or for any act or omission for which it is responsible, provided, however, that such liability shall be limited in terms of applicable law.
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10.7 Application to tort actions
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10.7.1 The defences, exclusions and limits of liability provided in these General Conditions shall apply to any action, claim or demand brought against the Terminal Operator, whether arising in tort, as bailee, in contract, in breach of express or implied warranty or otherwise.
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10.8 Notification of complaints
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10.8.1 Any claim by the User against the Terminal Operator arising in respect of any Service which has been provided to the User, or which the Terminal Operator has undertaken to provide to the User, must be made and notified in writing to the Terminal Operator not later than (30) thirty calendar days from the date of the occurrence of the event or occurrence which allegedly gave rise to the cause of action against the Terminal Operator.
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10.8.2 The parties accept and agree that in respect of any claim which is not made and notified in accordance with Condition 10.8.1, the same shall be deemed to have been waived and shall be absolutely without merit.
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10.9 Deadline for complaints
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10.9.1 Notwithstanding the provisions of Condition 10.8, the Terminal Operator shall be released from all liability whatsoever and howsoever arising in respect of any Service which it has provided to the User, or which the Terminal Operator has undertaken to provide to the User, unless legal proceedings are instituted, and corresponding written notice is given to the Terminal Operator, within twelve (12) months of the date on which the alleged event or occurrence giving rise to the cause of action against the Terminal Operator took place.
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10.10 De - minimisclause
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10.10.1 The User shall only be entitled to bring a claim, however it arises, (including in respect of negligence) where the amount of any individual claim exceeds the sum of US$500.00 (five hundred United States Dollars).
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10.11 Excess Liability Compensation
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10.11.1 The User shall forthwith indemnify the Terminal Operator against any and all Liabilities which are in any way assumed, incurred or suffered by the Terminal Operator or its employees, officers, representatives, insurers or reinsurers as a result of or in connection with any claim made by any third party (including, without limitation, a claim made by the owner of the Vessel, Cargo or Container, or by any other person who has or may have an interest in the Vessel, Cargo or Container, or by any other person who has or may have an interest in the Vessel, Cargo or Container, without limitation, a claim made by the owner of the Ship, Cargo or Container, or by any other person who has or may have an interest in the Ship, Cargo or Container, or by any customs authority) (hereinafter a Third Party Claim):
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(a) where the Third Party Claim arises out of or relates to the Services (whether caused by the Terminal Operator's negligence or otherwise); and
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(b) to the extent that the Third Party Claim exceeds the Terminal Operator's Liability to the User under these General Conditions.
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10.12 Notwithstanding any other provision of these General Conditions, the User shall include in the bill of lading and other transport documents evidencing the contract of carriage, issued in respect of Cargo carried by the User, a clause stating that while acting in the course of or in accordance with these General Conditions, the Terminal Operator shall be entitled to the benefit of all provisions or clauses specified in the bill of lading or other transport documents to the extent that such provisions and clauses benefit the Shipper, but no more, and the Terminal Operator hereby agrees for itself and any third party for whom it is responsible to receive such benefit.
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10.13 The Terminal Operator authorises, empowers and instructs the User to act as its agent and/or representative, and the User in turn hereby agrees to act as such for the sole and limited purpose of complying with Condition 10.12.
10.1 To the Container Ship
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10.1.1 The Terminal Operator shall only be liable for loss of or damage to any Container Ship, including its parts and all other equipment, to the extent that such loss or damage was caused by the negligence or wilful misconduct of the Terminal Operator or any party for whom the Container Terminal was directly responsible.
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10.1.2 The Terminal Operator's liability for wilful misconduct or negligence pursuant to Condition 10.1.1 shall at all times be limited to the lesser of: (a) the cost of reasonable repair or cost of replacement of the lost or damaged item (with an item of the same species, year and condition) of the Container Ship, or (b) to the full amount of the agreed consideration for the Services provided or requested from the Terminal Operator.
10.2 To Containers
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10.2.1 The Terminal Operator shall only be liable for loss of or damage to any Container to the extent that such loss or damage is caused by the negligence or wilful misconduct of the Terminal Operator or any other party for which the Terminal Operator is directly responsible.
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10.2.2 The Terminal Operator's liability under Condition 10.2.1 above shall be limited to: (i) to the reasonable cost of repair or replacement cost (with an item of the same species, year and condition) of the affected Container, or (ii) to the full amount of the agreed consideration for the Services provided or requested from the Terminal Operator, whichever is less.
10.3 On Load
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10.3.1 The Terminal Operator (or any other party for whom the Terminal Operator is responsible) shall be entitled to the benefit of such defences, limitations and exclusions of liability as are available to the Shipper under the bill of lading or under such other transport documents evidencing a contract of carriage as may have been issued in respect of Cargo carried by the Shipper.
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10.3.2 In the event that no bill of lading or other transport document has been issued in respect of Cargo as aforesaid, the Terminal Operator shall only be liable for loss of or damage to any Cargo to the extent that the damage occurred by reason of the negligence or wilful default of the Terminal Operator or any other party for whom the Terminal Operator is responsible, and such liability shall be limited to the lesser of either of the following: (a) the reasonable cost of repair or the cost of replacement (with an item of the same species, year and condition) of the Cargo; or (b) a maximum of two (2) SDRs (Special Drawing Rights) per kilogram gross weight of Cargo lost or damaged.
10.4 Delays
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10.4.1 The Terminal Operator assumes no liability whatsoever or howsoever arising (including negligence) for delay, or in relation to any failure to meet any time limit, or for any delay in the performance of the Services (including Containers, Cargo or Vessels).
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10.4.2 Without prejudice to Condition 10.4.1, if the Terminal Operator is found to be liable for loss or damage resulting from any delay, or failure to meet any time limit for the performance of the Services, the Terminal Operator's liability shall in no circumstances exceed a sum equal to the amount of the Charges for the Services provided in respect of the Containers, Cargo or Vessels concerned.
10.5 Exclusions
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10.5.1 The Terminal Operator shall not be liable for loss of or damage to any Vessel, Container or Cargo pursuant to the provisions of this Condition 10 unless the Shipper proves that the loss or damage was caused directly by the Terminal Operator while such Container, Vessel or Cargo was in the Custody of the Terminal Operator. If the loss or damage is the result or consequence of the act or omission of the User or any other person, the Terminal Operator shall be exonerated from any liability.
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10.5.2 The Terminal Operator shall not be liable for loss of or damage to any Vessel, Container or Cargo in accordance with the provisions of this Condition 10 unless the Terminal Operator's cargo handling equipment has been used.
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10.5.3 Except as set out in this Condition 10, the Terminal Operator shall not be liable for loss or damage to any Container Ship, Cargo or Container however arising (whether caused by negligence or otherwise).
10.6 General Liability
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10.6.1 Notwithstanding any other provision contained in these General Conditions, the Terminal Operator shall in no event and under no circumstances be liable for any loss of profit, loss of sales, loss or interruption of business, loss of intangibles or reputation, claims of third parties (in each case whether direct or indirect), or for any indirect or consequential loss, punitive and indirect damages in respect of any claims, loss or damage, whether arising in tort (including negligence), custody, breach of contract, breach of statutory or other provisions, under or in connection with these Terms and Conditions, the performance or failure or delay in performance of the Services, or of any obligation contained in these Terms and Conditions (including the delay of a Vessel or Cargo) or the termination of the Contract arising out of these Terms and Conditions.
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10.6.2 Nothing contained in these General Conditions shall exclude the liability of the Terminal Operator for death, any disability or injury caused by its negligence, or for any act or omission for which it is responsible, provided, however, that such liability shall be limited in terms of applicable law.
10.7 Application to tort actions
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10.7.1 The defences, exclusions and limits of liability provided in these General Conditions shall apply to any action, claim or demand brought against the Terminal Operator, whether arising in tort, as bailee, in contract, in breach of express or implied warranty or otherwise.
10.8 Notification of complaints
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10.8.1 Any claim by the User against the Terminal Operator arising in respect of any Service which has been provided to the User, or which the Terminal Operator has undertaken to provide to the User, must be made and notified in writing to the Terminal Operator not later than (30) thirty calendar days from the date of the occurrence of the event or occurrence which allegedly gave rise to the cause of action against the Terminal Operator.
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10.8.2 The parties accept and agree that in respect of any claim which is not made and notified in accordance with Condition 10.8.1, the same shall be deemed to have been waived and shall be absolutely without merit.
10.9 Deadline for complaints
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10.9.1 Notwithstanding the provisions of Condition 10.8, the Terminal Operator shall be released from all liability whatsoever and howsoever arising in respect of any Service which it has provided to the User, or which the Terminal Operator has undertaken to provide to the User, unless legal proceedings are instituted, and corresponding written notice is given to the Terminal Operator, within twelve (12) months of the date on which the alleged event or occurrence giving rise to the cause of action against the Terminal Operator took place.
10.10 De - minimisclause
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10.10.1 The User shall only be entitled to bring a claim, however it arises, (including in respect of negligence) where the amount of any individual claim exceeds the sum of US$500.00 (five hundred United States Dollars).
10.11 Excess Liability Compensation
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10.11.1 The User shall forthwith indemnify the Terminal Operator against any and all Liabilities which are in any way assumed, incurred or suffered by the Terminal Operator or its employees, officers, representatives, insurers or reinsurers as a result of or in connection with any claim made by any third party (including, without limitation, a claim made by the owner of the Vessel, Cargo or Container, or by any other person who has or may have an interest in the Vessel, Cargo or Container, or by any other person who has or may have an interest in the Vessel, Cargo or Container, without limitation, a claim made by the owner of the Ship, Cargo or Container, or by any other person who has or may have an interest in the Ship, Cargo or Container, or by any customs authority) (hereinafter a Third Party Claim):
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(a) where the Third Party Claim arises out of or relates to the Services (whether caused by the Terminal Operator's negligence or otherwise); and
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(b) to the extent that the Third Party Claim exceeds the Terminal Operator's Liability to the User under these General Conditions.
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10.12 Notwithstanding any other provision of these General Conditions, the User shall include in the bill of lading and other transport documents evidencing the contract of carriage, issued in respect of Cargo carried by the User, a clause stating that while acting in the course of or in accordance with these General Conditions, the Terminal Operator shall be entitled to the benefit of all provisions or clauses specified in the bill of lading or other transport documents to the extent that such provisions and clauses benefit the Shipper, but no more, and the Terminal Operator hereby agrees for itself and any third party for whom it is responsible to receive such benefit.
10.13 The Terminal Operator authorises, empowers and instructs the User to act as its agent and/or representative, and the User in turn hereby agrees to act as such for the sole and limited purpose of complying with Condition 10.12.
11. INSURANCE
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11.1 The Terminal Operator is obliged to maintain title to such insurance as it may require under the Assignment Agreement and the Harbour Act; and
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11.2 The Terminal Operator shall retain and maintain, at its own expense, insurance policies covering any liabilities assumed by it in accordance with these General Conditions.
11.1 The Terminal Operator is obliged to maintain title to such insurance as it may require under the Assignment Agreement and the Harbour Act; and
11.2 The Terminal Operator shall retain and maintain, at its own expense, insurance policies covering any liabilities assumed by it in accordance with these General Conditions.
12. ACTS OF GOD OR FORCE MAJEURE
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12.1 Neither party shall be liable to the other for any loss or damage to the Cargo, Container or Vessel, for delay or failure to perform its obligations under these General Conditions, to the extent that such delay or failure is due to any act of God or force majeure, such as (but not limited to): flood, severe weather conditions, storm, tempest, epidemic, pandemic, compliance with any law, court order, rule or regulation of any governmental or other authority, acts of any governmental or supranational authority, war or national emergency, riot, civil commotion, acts of terrorism, piracy, fire, explosion, heat or cold (including heat within the Freight itself and accidental exposure to natural or artificial light) criminal acts, computer viruses, lockouts, work stoppages, strikes and other labour disputes (in each case whether or not relating to such party's labour) shortages of labour, materials and services and inability or delay in obtaining supplies, and where these are not foreseeable or which if foreseen could not have been avoided or resisted, and which prevent the performance in whole or in part of its obligations, and other events not within the reasonable control of a party, provided that the party alleging such acts of God or force majeure has not caused or contributed to such acts of God or force majeure.
12.1 Neither party shall be liable to the other for any loss or damage to the Cargo, Container or Vessel, for delay or failure to perform its obligations under these General Conditions, to the extent that such delay or failure is due to any act of God or force majeure, such as (but not limited to): flood, severe weather conditions, storm, tempest, epidemic, pandemic, compliance with any law, court order, rule or regulation of any governmental or other authority, acts of any governmental or supranational authority, war or national emergency, riot, civil commotion, acts of terrorism, piracy, fire, explosion, heat or cold (including heat within the Freight itself and accidental exposure to natural or artificial light) criminal acts, computer viruses, lockouts, work stoppages, strikes and other labour disputes (in each case whether or not relating to such party's labour) shortages of labour, materials and services and inability or delay in obtaining supplies, and where these are not foreseeable or which if foreseen could not have been avoided or resisted, and which prevent the performance in whole or in part of its obligations, and other events not within the reasonable control of a party, provided that the party alleging such acts of God or force majeure has not caused or contributed to such acts of God or force majeure.
13. CONFIDENTIALITY
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13.1 The parties undertake that they shall not at any time disclose to any person any Confidential Information relating to the business, affairs, customers or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as set out in Condition 13.2.
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13.2 Each party may disclose the Confidential Information of the other party:
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13.2.1 to its employees, officers, agents, representatives or professional advisers who have a need to know such information in order to comply with the obligations set out in these Terms and Conditions; provided that all of the foregoing shall be under an obligation not to disclose the Confidential Information.
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13.2.2 as required by law, court order or other governmental or regulatory authority, to the extent and to the extent expressly required.
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13.3 If either party breaches this Condition 13, the other party shall be entitled to obtain immediate payment of damages and/or to take such other legal action as either party may be entitled to at law.
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13.4 Neither party shall use any Confidential Information of the other party for any purpose other than to carry out its obligations under these Terms and Conditions.
13.1 The parties undertake that they shall not at any time disclose to any person any Confidential Information relating to the business, affairs, customers or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as set out in Condition 13.2.
13.2 Each party may disclose the Confidential Information of the other party:
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13.2.1 to its employees, officers, agents, representatives or professional advisers who have a need to know such information in order to comply with the obligations set out in these Terms and Conditions; provided that all of the foregoing shall be under an obligation not to disclose the Confidential Information.
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13.2.2 as required by law, court order or other governmental or regulatory authority, to the extent and to the extent expressly required.
13.3 If either party breaches this Condition 13, the other party shall be entitled to obtain immediate payment of damages and/or to take such other legal action as either party may be entitled to at law.
13.4 Neither party shall use any Confidential Information of the other party for any purpose other than to carry out its obligations under these Terms and Conditions.
14. ASSIGNMENT AND SUBCONTRACTING
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14.1 The Terminal Operator may assign, without prior notice or consent from the User, some or all of its obligations with respect to these General Terms and Conditions.
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14.2 The User may not assign, substitute or otherwise dispose of its rights or obligations under these General Conditions or any part of these General Conditions without the prior written consent of the Container Terminal Operator (such consent not to be unreasonably withheld or delayed).
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14.3 The Terminal Operator may subcontract any part of its obligations under these General Conditions.
14.1 The Terminal Operator may assign, without prior notice or consent from the User, some or all of its obligations with respect to these General Terms and Conditions.
14.2 The User may not assign, substitute or otherwise dispose of its rights or obligations under these General Conditions or any part of these General Conditions without the prior written consent of the Container Terminal Operator (such consent not to be unreasonably withheld or delayed).
14.3 The Terminal Operator may subcontract any part of its obligations under these General Conditions.
15. GENERAL PROVISIONS
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15.1 These Terms and Conditions, together with any other documents expressly included by the parties (if any), shall form an integral part of the agreement between the parties in respect of the provision of the Services; and any statements made orally or in writing or otherwise in any other instrument are hereby excluded (including without limitation any statements or representations made in negligence); provided that this Condition shall not exclude or limit any liability or rights that either party may have in respect of pre-contractual statements made or generated fraudulently and the same supersede all prior contracts and agreements between the parties in respect of the provision of the Services. If the User's documentation contains additional terms or conditions that are different from or contrary to these Terms and Conditions, none of them shall be valid.
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15.2 The User acknowledges that it does not enter into these Terms and Conditions on the basis of any representation or other undertaking or understanding not expressly reflected in these Terms and Conditions, and that any other conditions and representations or other terms implied by law or otherwise are hereby excluded to the fullest extent permitted by law.
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15.3 If any provision of these Terms and Conditions is held by any court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, it shall be modified to the extent necessary to make it, like the rest of these Terms and Conditions, valid and enforceable. If a court refuses to modify these Terms and Conditions as provided above, the invalid, illegal or unenforceable provision will be deleted and the remaining provisions in these Terms and Conditions will remain in full force and effect as if these Terms and Conditions had been concluded without the invalid, illegal or unenforceable provision being deleted.
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15.4 In the event of any severability as described in Condition 15.3, the parties shall negotiate in good faith with a view to replacing the provisions that were severed with legal and enforceable provisions with similar economic and commercial effect to the provisions that were severed.
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15.5 The failure of either party to enforce strict performance of any provision of these Terms and Conditions, or the failure of either party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause any diminution of the obligations set out in these Terms and Conditions.
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15.6 Failure or waiver to claim any breach of these Terms and Conditions shall not constitute a waiver of any subsequent breach.
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15.7 No waiver of any of the provisions of these Terms and Conditions shall be valid unless it is expressly stated in writing to be a waiver and the other party has been informed in writing in accordance with the provisions of Condition 15.11.
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15.8 Except as expressly set out in these Terms and Conditions, no right or remedy granted to either party in these Terms and Conditions shall be exclusive of any other right or remedy otherwise arising and all such rights and remedies shall be cumulative.
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15.9 Any modifications, variations or additions to these General Conditions must be in writing and signed by a legally authorised person of each party.
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15.10 The Terminal Operator is an independent service provider in accordance with these General Conditions. Nothing in these General Conditions shall be construed as constituting a partnership, association or joint venture between the parties, or make one party a representative of the other party. Neither party shall hold itself out as a representative of the other party or be a party to a joint venture vis-à-vis the other party. The User shall not have the authority to act on behalf of the Terminal Operator, nor shall the Terminal Operator have the authority to act on behalf of the User, except to the extent necessary for the Terminal Operator to perform its obligations under these General Terms and Conditions.
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15.11 Notices to be given for the purpose of modifying or revising the contents of these General Conditions, or notices with respect to claims, legal actions, or otherwise having a significant impact on these General Conditions shall be in writing, in English and shall be delivered to the other party's address in person, by registered mail or courier service with acknowledgement of receipt.
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15.12 These Terms and Conditions and any dispute or claim arising out of or in connection with these Terms and Conditions or their interpretation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Mexico.
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15.13 The Federal Courts of Mexico City, Mexico, shall have exclusive jurisdiction to hear any claim against the Terminal Operator or otherwise arising in connection with the Services provided in accordance with these Terms and Conditions, to whose jurisdiction the User expressly and irrevocably submits.
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15.14 The Terminal Operator shall be entitled to bring proceedings against the User in the courts of England and Wales, or in any other jurisdiction (including jurisdictions where the User has a place of business, property or assets), and legal proceedings brought by the Terminal Operator in one or more jurisdictions shall not prevent legal proceedings brought in any other jurisdiction from proceeding, whether concurrently or not.
15.1 These Terms and Conditions, together with any other documents expressly included by the parties (if any), shall form an integral part of the agreement between the parties in respect of the provision of the Services; and any statements made orally or in writing or otherwise in any other instrument are hereby excluded (including without limitation any statements or representations made in negligence); provided that this Condition shall not exclude or limit any liability or rights that either party may have in respect of pre-contractual statements made or generated fraudulently and the same supersede all prior contracts and agreements between the parties in respect of the provision of the Services. If the User's documentation contains additional terms or conditions that are different from or contrary to these Terms and Conditions, none of them shall be valid.
15.2 The User acknowledges that it does not enter into these Terms and Conditions on the basis of any representation or other undertaking or understanding not expressly reflected in these Terms and Conditions, and that any other conditions and representations or other terms implied by law or otherwise are hereby excluded to the fullest extent permitted by law.
15.3 If any provision of these Terms and Conditions is held by any court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, it shall be modified to the extent necessary to make it, like the rest of these Terms and Conditions, valid and enforceable. If a court refuses to modify these Terms and Conditions as provided above, the invalid, illegal or unenforceable provision will be deleted and the remaining provisions in these Terms and Conditions will remain in full force and effect as if these Terms and Conditions had been concluded without the invalid, illegal or unenforceable provision being deleted.
15.4 In the event of any severability as described in Condition 15.3, the parties shall negotiate in good faith with a view to replacing the provisions that were severed with legal and enforceable provisions with similar economic and commercial effect to the provisions that were severed.
15.5 The failure of either party to enforce strict performance of any provision of these Terms and Conditions, or the failure of either party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause any diminution of the obligations set out in these Terms and Conditions.
15.6 Failure or waiver to claim any breach of these Terms and Conditions shall not constitute a waiver of any subsequent breach.
15.7 No waiver of any of the provisions of these Terms and Conditions shall be valid unless it is expressly stated in writing to be a waiver and the other party has been informed in writing in accordance with the provisions of Condition 15.11.
15.8 Except as expressly set out in these Terms and Conditions, no right or remedy granted to either party in these Terms and Conditions shall be exclusive of any other right or remedy otherwise arising and all such rights and remedies shall be cumulative.
15.9 Any modifications, variations or additions to these General Conditions must be in writing and signed by a legally authorised person of each party.
15.10 The Terminal Operator is an independent service provider in accordance with these General Conditions. Nothing in these General Conditions shall be construed as constituting a partnership, association or joint venture between the parties, or make one party a representative of the other party. Neither party shall hold itself out as a representative of the other party or be a party to a joint venture vis-à-vis the other party. The User shall not have the authority to act on behalf of the Terminal Operator, nor shall the Terminal Operator have the authority to act on behalf of the User, except to the extent necessary for the Terminal Operator to perform its obligations under these General Terms and Conditions.
15.11 Notices to be given for the purpose of modifying or revising the contents of these General Conditions, or notices with respect to claims, legal actions, or otherwise having a significant impact on these General Conditions shall be in writing, in English and shall be delivered to the other party's address in person, by registered mail or courier service with acknowledgement of receipt.
15.12 These Terms and Conditions and any dispute or claim arising out of or in connection with these Terms and Conditions or their interpretation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Mexico.
15.13 The Federal Courts of Mexico City, Mexico, shall have exclusive jurisdiction to hear any claim against the Terminal Operator or otherwise arising in connection with the Services provided in accordance with these Terms and Conditions, to whose jurisdiction the User expressly and irrevocably submits.
15.14 The Terminal Operator shall be entitled to bring proceedings against the User in the courts of England and Wales, or in any other jurisdiction (including jurisdictions where the User has a place of business, property or assets), and legal proceedings brought by the Terminal Operator in one or more jurisdictions shall not prevent legal proceedings brought in any other jurisdiction from proceeding, whether concurrently or not.