c) insufficiency of the packing or labelling of the Goods, except where such service has been provided by DSV; d) handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf; e) inherent vice of the Goods; f) act or omission of any Authority, riots, civil commotions, strikes, lockouts, stoppage or restraint of labor from whatsoever cause; g) force majeure, act of God, fire, flood, storm, explosion or theft; and/or h) any other cause which DSV could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence. 11.3. DSV shall have the full benefit of all rights, limitations and exclusions of liability available to the subcontractor in the contract between DSV and the sub-contractor and in any law, statute or regulation and the liability of DSV shall not exceed the amount recovered, if any, by DSV from the subcontractor. 11.4. If the Services are subject to regulations set out in international conventions or statutory legislation these conventions or legislation are compulsory applicable to the Services. a) For international carriage of goods by road - the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (the CMR Convention) shall apply. b) For international carriage of goods by sea - except for carriage to or from the United States of America - the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 1924 and as amended in 1968 and 1979 (the Hague-Visby Rules) shall apply. Carriage of goods by sea to or from the United States of America is subject to the Carriage of Goods by Sea Act of 1936 (COGSA). Supplementary to the Hague-Visby Rules or the COGSA, the DSV’s Ocean Transport Standard Bill of Lading shall apply. c) For international carriage of goods by air subject to the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 (the Montreal Convention) this Montreal Convention shall apply. For shipments subject to only the Convention for the Unification of certain rules relating to international carriage by air as of 1929 (the Warsaw Convention) this Warsaw Convention shall be applicable, however, where both the Warsaw and the Montreal conventions apply the Montreal Convention shall prevail. d) For international carriage of goods by rail - the Uniform Rules concerning the Contract for International Carriage of Goods by Rail (the CIM convention) shall apply. 11.5. For all other loss, damage or claims, including to the extent that the Services are not subject to international conventions, statutory legislation or they are part of a multimodal shipment and it cannot be determined in which mode of transport the loss of, damage to or delay of the Goods occurred, DSV’s liability for Services such as but not limited to Transport Services, Logistics Services, Warehousing, Customs Services or Ancillary Services to the previously mentioned services shall be as follows: a) In respect of loss or damage or claim relating to Goods or other property, to the lesser of: 2 SDR per kilogram of gross weight of the Goods or property lost, damaged or in connection with which such claim is made; 75,000 SDR per occurrence or 1,000,000 SDR in the aggregate per each calendar year; b) in respect of delay or claims relating to delay, to the lesser of twice DSV’s fees for the delayed Service(s), where applicable, or 10,000 SDR per occurrence; and c) in respect of any other loss, damage, or claim (including in respect of any errors or omissions), to the lesser of 20,000 SDR per occurrence or 200,000 SDR in the aggregate per each calendar year. 11.6. DSV’s aggregate total liability for any loss, damage or claim in connection with the performance and/or non-performance of Services or any other obligations hereunder shall not in any event exceed 2,000,000 SDR per calendar year. 11.7. Except to the extent expressly prohibited by applicable law, under no circumstances shall DSV be liable in contract, tort, negligence, breach of statutory duty or otherwise for any indirect or consequential loss, damage, costs or expenses of any nature whatsoever; or for any loss of actual or anticipated profits, loss of revenue, loss of goodwill and/or business, loss of savings or any other pure economic loss, in each case whether direct or indirect. 12. Notice of Loss 12.1. Notice of claim shall be given to DSV without undue delay. In case of apparent damage to or loss of Goods, notice should be given immediately upon the receipt of the Goods. In case of nonapparent damage to or loss of Goods, notice of claim should be given within the period prescribed by any applicable law, and absence of any such provision, no later than seven days from the day when the goods were received. 12.2. If the Customer fails to give notice within the notice period stipulated in Clause 12.1 the Customer shall bear the burden of proof that the damage or loss of the Goods had occurred before the Goods were received. If the Customer fails to prove this, the Goods will be considered to have been delivered in perfect condition. 12.3. Notice of claim concerning delay, loss of the whole consignment and/or matters other than damage to or loss of the Goods shall be given within 14 (fourteen) days from the day on which the Customer knew or ought to have known about the circumstances forming the basis of DSV’s liability. If such notice of claim is not given, the Customer shall lose its right to put forward any claim. 13. Time-bar 13.1. Legal proceedings against DSV shall be commenced within a period of 1 (one) year; otherwise the right of claim will have become lost. The time limit period runs: a) upon depreciation of or damage to Goods from the day upon which the Goods were delivered to the consignee, b) upon delay, loss of the whole consignment or any other kind of loss not falling under a) from the time at which the delay, total loss or other loss could at the earliest have been noticed. 14. General Average In the event of General Average the parties agree that the York-Antwerp Rules of 1994 shall apply. The Customer shall defend, indemnify and hold harmless DSV in respect of any claims of a General Average nature, including any claims or demands for General Average security which may be made on DSV, and the Customer shall forthwith provide such security as may be required by DSV in this connection. 15. Both-to-Blame Collision Clause The Both-to-Blame Collision Clause as recommended by BIMCO as at the same of the provision of Services is incorporated into and forms part of these Conditions. 16. DSV acting as Agent 16.1. DSV shall notify the Customer if DSV will act as Agent only in connection with the Services. If no such notice is made DSV shall be considered to act as Principal. 16.2. To the extent that DSV acts as an Agent, DSV does not make or purport to make any contract with the Customer for the carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third parties so that direct contractual relationships are established between the Customer and such third parties. 16.3. DSV shall not be liable for the acts and omissions of third parties referred to in Clause 16.2. DSV shall only be liable if it fails to exercise due diligence in contracting the actual carrier. 16.4. Except to the extent caused by DSV’s negligence, the Customer shall defend, indemnify and hold harmless DSV in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the procurement of the Customer’s requirements in accordance with Clause 16.2. 17. Hindrance 17.1. DSV shall use reasonable efforts to perform and complete the agreed Services. If at any time the performance of Services is affected by any hindrance, risk or delay not attributable to DSV or DSV’s subcontractors, DSV shall not be liable for any related loss, damage or delay of Goods. 17.2. Any delay or failure in performance of Services due to a hindrance event shall not constitute a breach of the Agreement. 17.3. If a hindrance continues for more than 30 (thirty) consecutive calendar days the Customer or DSV may terminate the specific ordered Services affected by the hindrance event with a written notice. 17.4. The Customer expressly accepts and agrees that any delay in, or inability to perform Services resulting from or in connection with the United Kingdom ceasing to be a Member State of the European Union shall be considered a hindrance to which the provisions of this Section 17 shall apply. 17.5. If a Brexit Trigger Event occurs, DSV may: a) require the Customer to negotiate in good faith an amendment to the Agreement to alleviate the Brexit Trigger Event; and b) if no such amendment is made to the Agreement within 30 (thirty) days, terminate the Agreement by giving the Customer written notice. 18. Miscellaneous 18.1. Amendments At any time DSV shall have the right to unilaterally amend these Conditions by publishing the amendments on DSV’s website. In case any Agreement was concluded by DSV after such publication, those will be subject to the amended Conditions. 18.2. Assignment Customer shall not assign or transfer any rights or obligations under the Agreement to any third party or Affiliate without the express prior written consent of DSV. DSV may condition its consent upon such changes to the terms or conditions condition of the Agreement as it deems in its sole discretion to be necessary to mitigate any increased risk by this assignment or transfer of rights and obligations. 18.3. Notices Notifications shall be made in writing, by mail, via e-mail or by fax according to the data exchanged between the parties. Any notice served by mail shall be deemed to have been given on the third day following the day on which it was mailed. 18.4. Headings Headings of clauses or groups of clauses in these Conditions are for indicative purposes only. 18.5. Legislation If any legislation is compulsory applicable to Services undertaken – in whole or in part - these Conditions shall, as regards such Services, be subject to such legislation. However, nothing in these Conditions shall be construed as a surrender by DSV of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions is held to be repugnant to such legislation to any extent such part shall as regards such business be over-ridden to that extent and no further. 19. Dispute resolution and applicable law 19.1. Unless otherwise regulated by mandatorily applicable national or international legislation or otherwise agreed in writing, the applicable law at the Registered Office of DSV shall apply to these Conditions and the Agreement between DSV and the Customer and to any disputes arising out of or in connection with such Conditions and/or Agreement. 19.2. Unless otherwise agreed in writing or stipulated by mandatory law any dispute arising out of or in connection with this Agreement, its subject matter or formation and/or the Services shall be subject to the exclusive jurisdiction of DSV’s domicile. Version 0.13 – November 2019
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