General conditions of contract that apply to XGL organising the carriage of goods

 

Please note: These conditions include important terms of contract that apply to all the relations with the companies that operate under the trademarks X-TRACT LOGISTICS S.L.U., XGL / LOGISTICS or XGL (referred to hereinafter as “XGL”), the list of which can be found in the link http://www.xtractlogistics.com  o  https://www.xgl-logistics.com  o www.myxgl.org.

Some of these conditions govern the liability of the contracting parties and the limited liability of XGL. This contract must be read carefully and any questions about the terms and conditions established herein should be asked before it is signed with XGL.

 

Definitions:

XGL is understood to be the Freight Forwarder or the Transport Operator. In general it acts as the Freight Forwarder, Transport Operator or the Logistics Operator and it organises the carriage of goods. It uses all means of transport and subagents for this, and they can be hired on behalf of and as representatives of the Client.

The Client shall be understood to be the party that hires the services of XGL. The Client is also the person that the quote, estimate, booking, correspondence, emails are meant for; the shipper, freight forwarder, sender, recipient, addressee or any of the intermediaries, agents or those working under them. The Client is responsible for paying XGL for the services supplied in full.

 

Clause 1. BASES OF CONTRACT

All the services supplied by XGL shall be governed by these general conditions of contract (and where appropriate by the XGL bill of lading clauses or any other transport document that is used in these services), which are fully accepted when the service is arranged by the shipper. When the Client hires XGL, they accept that these general conditions of contract apply to any request for the provision of services, and to the actual service that is provided, which is either accepted verbally, over the phone, by email or another means of communication, even when specific reference is not made to these general conditions of contract. The limitations of legal liability defined in the provisions of these general conditions of contract shall also apply to any type of claim, whether it is civil, commercial, criminal, judicial, out-of-court, contractual, non-contractual or of any other type. Furthermore, the Client agrees to inform third parties that might have entered into a contract with the Client about the existence, term, validity and acceptance of these conditions.

If these conditions are not accepted, the Client must state this clearly in writing and conclusively to XGL immediately after becoming aware of them or being told about the inclusion of these. After seven days from when notice has been given of these conditions or after the service of XGL has been requested by the Client, they shall be considered to have been validly incorporated.

 

Clause 2. TRANSPORT DOCUMENTS

The transport hired shall be covered by a consignment note, B/L, delivery note, AWB, CMR, etc., issued by XGL or its agents, which shall be in line with and adapted to the applicable national regulations and the international agreements, and their clauses shall be upheld by XGL and the Client. If any type discrepancy should exist among these documents and these General Conditions of Contract or if there is a legal vacuum, the following shall prevail, in this order: firstly, the bill of lading of XGL and/or that of WCL Shipping Ltd; secondly, these General Conditions of Contract; and thirdly, any other transport document that is used, where appropriate.

 

Clause 3. DESCRIPTION OF THE GOODS AND THE PACKAGING

The Client guarantees XGL the accuracy of the customs declaration with regards to the characteristics, description, trademarks, numbers, quantity, weight and volume and the Client is responsible for any loss, damage, defects and/or penalties suffered by third parties due to the inaccuracy of the aforesaid data, as well as those resulting from inappropriate, inadequate or misused packaging that might cause damage or loss of the goods or the handling equipment or the means of transport, even when these inaccuracies or shortcomings occur in operations that are not directly carried out by XGL, for which the Client shall pay compensation along with any additional expenses incurred due to this. The Client specifically states that the packaging supplied is suitable to protect the goods being shipped in the service hired. Unless the Client gives XGL specific instructions, no special action shall be taken with regards to the packaging, and the Client shall be held completely accountable for this.

The Client must inform XGL about any dangerous goods that it is asked to transport, store or handle, and, also about any precautions that, where appropriate, must be taken. The Client must in any case give XGL the safety data sheet for the goods and/or the data needed to complete the transport information beforehand.

The Client understands and accepts that neither XGL nor its agents nor representatives are able to check the veracity of the information referred to in this clause, in particular, the data concerning the condition of the goods. If information is omitted, insufficient or wrong, the Client shall be held responsible for the damage caused by this, in which case XGL shall be entitled to claim compensation for the expenses incurred by this and it shall be freed from any liability if the goods have to be unloaded, destroyed or neutralized, depending on the circumstances and without the Client being able to claim any type of compensation.

 

Clause 4. LEGAL LIABILITY

The Client accepts that XGL executes the contract and other instructions and that it organises the transport, handling, carriage and storage of the cargo it has been entrusted with, as it deems fit, unless the Client gives it specific instructions well enough in advance, and clearly, through any of the aforementioned means of communication.

As a Freight Forwarder, Forwarding Agent or Logistics Operator, XGL shall be responsible for organising the transport and it shall be held accountable for not complying with its contractual obligations, in the cases and circumstances and only during the liability period provided for in the applicable national law and in International Agreements, and always in the same circumstances and holding the same position as if it was the operating carrier.

As warehouse keeper and custodian, XGL shall be held solely responsible for any damage done to the goods that is caused as a result of not complying with its contractual obligations in the cases and circumstances provided for in the applicable regulations.

It shall assume responsibility for the goods as soon as they are handed over to the employees of XGL, and it shall be freed of this liability when the goods leave its warehouses to be shipped.

Its legal liability is defined as being as follows:

4.1. – XGL shall be held solely responsible for any material damage caused to the goods at its facilities, although this liability does not under any circumstances whatsoever, cover any consequential, pecuniary damages or claims for damages due to loss of profit.

4.2. – Any legal action taken against the employees of XGL and/or anyone working under it, either permanently or temporarily, shall only be possible within the limits and in the circumstances provided for in the 5th and 6th clauses.

4.3.- These limits cannot be surpassed not even when legal action is taken against XGL and its employees and/or those working under it, either permanently or temporarily, whether this action is taken together or separately, this limit shall be understood as being a set maximum for all those involved.

4.4. – XGL shall be held responsible for the choice of the agents outsourced as carriers, freight forwarders, warehouse operators, etc., and the instructions given to them, but it shall be freed from any liability if the agent has been chosen according to the instructions from the Client, shipper or anyone else that has interests in the goods, as well as if the instructions have been given to the outsourced agents pursuant to the orders from the Client or the shipper. In this case, XGL can waive its rights against the outsourced agents and transfer them over to the Client/shipper.

4.5. – In any case, the liability of XGL cannot exceed that of those that it uses to supply the services.

 

Clause 5. LIMITATION OF LIABILITY

Always with the maximum value of the goods, XGL shall only be held accountable in the cases and pursuant to the economic limits that are mentioned hereinafter:

The national carriage of goods by land and any other activity that is not mentioned hereinafter (such as for example, that of the warehouse operator or logistics), shall be governed by the provisions established in the Spanish Law Governing Land Transport called the Ley de Ordenación del Transporte Terrestre (LOTT) and the Regulation that implements it or replaces it on the date that the claim is made.

The international carriage of goods by land shall be governed by the Convention on the Contract for the International Carriage of Goods by Road (CMR), and XGL shall be liable for any damaged or lost goods pursuant to the Convention on the date that the claim is made.

The international carriage of goods by sea shall be governed by the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading -Hague–Visby Rules and XGL shall be held liable in accordance with the Convention on the date that the claim is made.

The national carriage of goods by sea shall be governed by the provisions established in the Law 14/2014, dated the 24th of July, on Maritime Navigation, and XGL shall be liable for any damaged or lost goods pursuant to the Law on the date that the claim is made.

The international carriage of goods by air shall be governed by the Montreal Convention and the subsequent amendments made to it (pursuant to the existing protocols in force in Spain), and XGL shall be liable for any damaged or lost goods pursuant to the Convention on the date that the claim is made.

The national carriage of goods by air shall be governed by Spanish law and XGL shall be liable for any damaged or lost goods pursuant to the laws on the date that the claim is made.

Under no circumstances whatsoever shall the declared value of the goods in the bill of lading, consignment note, nautical chart or any other document issued by XGL or its agents be considered to be a “real value” declaration that stops XGL from putting limits on its liability. These declared values are just statements without any content, relevance or value seeing as XGL cannot check the veracity or the reality of the value declared by the Client.

XGL shall only be held accountable for the delay in the delivery, in cases when this has been specifically established in the applicable legal regulations, in which case it shall be liable pursuant to the terms of these rules and regulations, and by no means shall this exceed the amount equivalent to the compensation that must be paid in accordance with the terms of the contract signed with XGL. In any case the delivery times given to the Client are always considered to be approximate and they shall be subject to the vicissitudes of the means of transport used. If the Client wants a guarantee that the goods will be delivered in a specific period of time, this must be stated clearly when the freight forwarding service is hired and it must be clearly accepted in writing by XGL so that it is binding. The Client understands and accepts that, as the Hague Rules and/or the Hague–Visby Rules are applicable, XGL cannot be held accountable for any delay and, therefore, XGL shall not be liable under any circumstances for a delay. In any case, XGL shall not be held liable for more than 2.5 times the freight proportional to the goods that have been delayed and proportional to the transport leg affected by the delay.

When the liability is the result of events or acts that have occurred during the performance of the carriage of goods, if it has to be subrogated during transit, by no means can its liability exceed that assumed against it by the railroad, shipping or airline companies, haulage companies, warehousing and storage companies or any other intermediary that is involved in the carriage of goods, in accordance with the applicable national laws and international agreements.

These limitations shall apply to all the claims made against XGL, regardless of whether the claim is based on the contractual liability or on the non-contractual liability and whether it is in the form of a lawsuit, counterclaim, arbitration, amicable claim or any other type of claim.

According to Special Drawing Rights (SDRs) the unit of account is understood as being that which is defined by the International Monetary Fund.

 

Clause 6. EXEMPTION FROM LIABILITY IN ORGANISING THE CARRIAGE OF GOODS CARRIED OUT BY THIRD PARTIES

XGL shall not be held liable for any type of loss, damage or expenses, such as the loss of profits, loss of clients, fines, sanctions, claims for losses due to depreciation or penalty clauses, currency fluctuations or the variations in the value of the goods, fees or taxes increased by the Authorities whatever the reason.

The different exemption clauses that are described hereinafter are applicable:

XGL shall not be held liable in any of the following circumstances:

  • Fault or negligence of the Client or their authorised representative.
  • Faulty packaging or labelling or the lack of these, as long has it was not XGL that was in charge of the packaging and labelling. Furthermore, XGL shall not be held responsible for the packaging of the goods if the content of such cannot be checked.
  • War, rebellion, revolution, insurrection, usurpation of power, confiscation, nationalization or requisition by or under the orders of a Government or a public or local authority.
  • Strike, lock-outs or other labour-related conflicts that affect the work. Damage caused by nuclear power.
  • Natural disasters.
  • Case of force majeure.
  • Theft.
  • Circumstances that XGL has not been able to avoid, and the consequences of which it has not been able to foresee. Defects and the inherent nature of the goods.
  • Piracy. Incorrect or distinctive labelling.
  • The other grounds for exemption established in the legal agreements and provisions in force.

XGL shall not be held liable for:

  • The loss or the damage of the goods, unless they are lost or damaged while they are under the custody and control of XGL before they are handed over to the Client, from this moment onwards XGL shall not be held responsible under any circumstances whatsoever.
  • If the goods have been transported by the Client or their representative.
  • The consequences of the loading or unloading operations that have not been carried out by XGL.
  • The loss, damage or expenses incurred by the inadequacy or mistakes associated with the number, content, weight, trademarks or the description of the goods.
  • Vis-à-vis any consequential loss or damage, such as the loss of profits, loss of clients, loss of earnings, depreciation or penalty clauses.

 

Clause 7. INSURING THE GOODS

XGL does not have insurance that covers the loss or damage during the haulage, storage or carriage of the goods; unless the Client specifically gives it instructions in writing to do so, in which case the Client must pay the corresponding amount for this.

When XGL is specifically told by the Client to take out insurance for the goods, it shall do so on behalf of the Client and it shall act as the Client’s agent.

The terms and the conditions of the insurance shall be established in the insurance policy that has been taken out, which shall be made available for the Client on request.

XGL shall not be held responsible for any possible disputes or claims that might arise between the Client and the insurance company providing the insurance coverage, as a result of insuring the goods.

 

Clause 8. PRICE OF THE SERVICES HIRED

The carriage and other services that are provided by XGL shall be understood to have been hired pursuant to the prices in force when the corresponding contract is signed and within the limits foreseen in these. The terms of payment agreed upon between XGL and the Client shall be considered to have been included in and be part of the price of each service hired. If there are no rates or the quotes from XGL or its agents do not contain prices for all the expenditure or services actually supplied, the usual or corresponding market prices in the place where the services are provided shall be charged. The additional costs incurred as a result of the events or circumstances after the date that the service is hired or, where appropriate, on the date when the shipping documents are issued, shall be paid by the Client, as long as they have been duly justified and are not the fault of or due to the negligence of any of those involved in providing the services engaged under contract . The payment of the expenses and services provided by XGL shall be in cash, except in special conditions agreed upon previously.

Any mention of the fact that the expenses of any kind, rates, carriage or freight are payable at the point of origin, at the point of destination, prepaid or to be paid, or any other statement of this kind, shall be included on the request of the Client and it shall not alter the Client’s obligation to pay the fees for all the services provided by XGL in cash and before the service is rendered. If there is a delay in the payment, the Client shall also be responsible for paying XGL interest on arrears, compensation for losses caused by the fluctuations in the currency exchange rates, bank commission and any other economic loss suffered by XGL or its agents due to a delay in the payment. The Client accepts that they are not entitled to any type of deduction or compensation of any kind on the amounts owed to XGL. If in doubt or if the recipient of the cargo is not the charterer or the shipper, the freight and other items that are included in the price and the cost of the carriage shall be considered to always be payable at the point of destination.

 

Clause 9. PROTEST IN THE EVENT THAT THE GOODS ARE DAMAGED/FAULTY AND THE CUSTODY OBLIGATION

When the goods shipped or stored are delivered, the recipient must check the condition that they are in, along with the quantity, the number and the weight of the packages delivered. If the recipient finds any type of defect or fault in the goods or they realise that some of the pieces/packages are missing, they must make a note of this defect/fault or loss of the goods that has been detected, when the goods are delivered, in the consignment note or the bill of lading.

If there is any type of irregularity, damage or loss of the goods that cannot be detected on delivery, the recipient must put any reservations that they might have on record in writing within 24 hours after the goods have been delivered, or pursuant to the terms and conditions established in the consignment note, bill of lading, transport documents or applicable legislation, if these were inferior.

The aforementioned in sections 9.1 and 9.2 is understood to be a procedural requirement, which means that if it is not complied with, the right to make a claim shall be understood to have expired.

The Client accepts and understands that in order to be able to make a claim to XGL they have to keep the goods that they are complaining about at their expense and in their custody, and they are expected to invite XGL to inspect these to obtain enough valid legal proof about the extent and the cause of the claimed damage and/or losses. The Client accepts and understands that, if they do not allow XGL to inspect the goods in question, it would be left in a defenceless situation and as it wouldn’t be able to defend itself with regard to the complaint made, XGL would therefore be freed from any responsibility and it would not be liable for the complaint made by the Client.

 

Clause 10. ESPIRY

On penalty of forfeiture, the maximum time period during which action can be taken against XGL shall be 1 year from the date that the goods are given to the Client or if they are lost, from the date that the goods should have been handed over to the Client.

However, the time period for the action taken due to the different freight transport operations actually being carried out shall be in line with the time periods that are established in the consignment notes, bills of lading, etc., or, where appropriate, those that have been established in the national regulations or the International Agreements that govern the different means of transport. The start of the corresponding time period depends on what has been established in these documents or Agreements.

The invoices of XGL for carriage and storage services, including costs and expenses, cannot under any circumstance whatsoever be accumulated and added on to other requests. By no means whatsoever, unless a provision of law states otherwise, can the Client keep any amounts owed to XGL or use these to pay possible or presumed outstanding compensation.

 

Clause 11. LIMITATION OF LIABILITY OF THIRD PARTIES

XGL is authorised to select and hire freight forwarders, carriers, warehouse operators, customs clearance agents, ship-owners, shipping companies, airlines, charter brokers and any other agents that might be required to transport, store, handle and deliver the goods, all of whom are considered to be independent agents of XGL.

The aforementioned shall be entrusted with goods pursuant to these conditions (such as the limitations of liability for loss, damage, expenses or delays in the delivery), rules, regulations, stipulations and applicable conditions whether they are established in writing, on paper or printed format, which appear in waybills, consignment notes, bills of lading and invoices issued by these freight forwarders, carriers, warehouse operators etc. or the content in the applicable national regulations or international agreements.

 

Clause 12. LIABILITY OF THE EMPLOYEES/SUBORDINATES

Any legal action taken directly against the employees and/or those working under XGL, both if, they are permanent or temporary, for the loss or the damage of the goods, shall only be possible within the limits provided for in clauses 5 and 6. If legal action is taken jointly against XGL and its employees, whether they are permanent or temporary workers, the maximum compensation cannot exceed the limits established in the clauses.

 

Clause 13. RIGHT OF RETENTION AND NOTARY PROCEDURES

XGL is in in general and in particular entitled to withhold the goods shipped and the documentation of Clients that have not paid the amounts owed for the services that it has been entrusted with as well as when the Client does not comply with the terms of payment agreed upon with XGL, in which case this agreement shall be considered to be invalid and it cannot be opposed and all the unpaid amounts shall be deemed to be due immediately, which would automatically give XGL the right of retention on all the goods that it has in its possession. Additionally, it shall be able to exercise any other right of retention that is admissible pursuant to the laws.

XGL shall be entitled to arrange for any notarial acts permitted by law.

The Client shall be held responsible for the damage or the deterioration of the goods, especially if they are perishable goods, due to the right of retention or notarial acts that XGL or its agents have had to carry out.

If the goods, for which the right of retention is going to be exercised or the notarial acts are going to be carried out, are lost or destroyed, XGL shall have the same aforesaid rights with regard to compensation that is paid by the insurance companies, transport companies, etc.

 

Cláusula 14. FLEXITANKS

14.1. For the logistical and freight transport operations carried out using flexitanks XGL shall just act as the supplier of the flexitanks owned by different companies. If you so require you are entitled to be given the contact details of these manufacturers ahead of time before shipping the goods and before signing a contract with XGL. This information can be supplied at any time.

14.2. These companies whose flexitanks XGL can supply you with are the owners of the flexitanks used by XGL, and XGL only makes them available to the interested party for the freight transport or logistical operation in question.

14.3. With regard to transfer, filling or emptying operations, XGL shall act as the agent of the company that actually carries out the operation if it is a different company that is not the Client’s. XGL shall state the name, address and telephone number of this company before the quote; booking or estimate has been confirmed.

14.4. XGL is entitled to supply the flexitank or any other equipment, device or machinery in addition to this, as well as change it or replace it once it has been supplied, if it thinks that the circumstances associated with the logistical or freight transport operation require this, without XGL being liable in any way.

14.5. Minimum and maximum cargo parameters: the Client states that they know the minimum and maximum cargo parameters of the flexitanks, as well as the minimum and maximum temperatures in which they must be used. If the Client does not know these parameters, they must request this information before using the flexitanks. XGL and its principal (the manufacturer of the flexitank) shall be exempt of all responsibility if these cargo parameters are not respected.

14.6. The Client must provide XGL with a detailed description of the goods that are going to be put in the flexitank before the operation in question is authorised. If the Client does not clearly state otherwise, it shall be understood that the goods are suitable to be put into the flexitank and that the Client is responsible for any damage done to the flexitank. Among other goods, it is strictly prohibited to use flexitanks for dangerous cargo, which includes among other things, radioactive substances, inflammable substances and/or substances that have been classified as being hazardous by the International Maritime Organization (IMO).

14.7. Having supplied the flexitank, the Client must check that it is in good condition for the optimum loading of the goods in question, the carriage and the logistical operations involved in this, which includes filling, transfer or emptying operations. The Client must inform XGL, in writing and immediately before carrying out the operation agreed upon, about any fault or damage that the flexitank has, so that XGL can ask the manufacturer to change, replace or repair it as soon as possible.

14.8. The Client cannot use, handle, install, remove, repair or modify the flexitank without getting the clear consent and approval from the manufacturer first, which is supplied through XGL.

14.9. If during the operation agreed upon there is some type of complication or hindrance that results in an additional payment that was not initially included in the quote given, XGL shall not make the payment unless it has received the corresponding amount from the Client immediately before, regardless of what is established later on about who is responsible for paying this.

14.10. Unless it is established otherwise, when the goods must be collected in the place where XGL has been told to pick them up and delivered to the place where XGL has been told to drop them off by road, whoever delivers the goods shall be responsible for loading them and whoever receives the goods must unload them from the vehicle in which they are being transported and XGL shall not be required to supply any type of machinery or labour for these operations.

14.11. When the Client and in particular the shipper, its agents or outsourced operators, have installed the flexitank or filled it with the liquid to be shipped, XGL shall not be held responsible for any type of damage when this has been caused by:

  • The way in which the container and/or the flexitank has been loaded.
  • The specific characteristics of the goods loaded, which make them unsuitable to be shipped in the container and/or flexitank.
  • The Client not checking to see if there is any type of defect, imperfection or circumstance that, if they had checked and detected it, could have prevented the damage done.
  • The Client not sealing the container or not doing it properly.
  • Not following the specific instructions given for the flexitanks (following the cargo parameters, not opening the left door of the container and others).

14.12. When XGL, or one of its agents or outsourced operators is entrusted with other tasks as well as the carriage of the goods, such as positioning the flexitank, assembling it, dismantling it, filling it, emptying it, the transfer, transhipment, provision, internal transport in a container port or depot, and/or any other activity or task related to the flexitank, and an accident happens or damage or loss occurs in any of these activities while the goods are under the control of XGL or its agents and outsourced operators, or when XGL has been hired for its freight forwarding service and the applicable bill of lading does not exist, the liability of XGL shall in any case be limited to the lowest amount of the following three:

a) the value of the damaged goods according to the commercial invoice when they are loaded.

b) the amount resulting from applying 500 U.S. dollars (USD) per metric ton of weight of the goods that are actually lost or damaged.

c) the amount of 12,000 U.S. dollars (USD) per flexitank.

This liability system shall be applicable in both contractual and non-contractual claims.

By no means shall XGL be held responsible when the loss is equivalent to 1% of the goods being transported, nor when the damage or loss is a result of the acts or omissions of the person or company that is not XGL nor when the damage or loss is the result of a delay in the delivery. If for any reason XGL was declared to be liable for not having delivered the goods within a reasonable period of time, its liability shall be limited to the value of the freight paid for the stage of the service hired from XGL in which the loss/damage occurred or the amount charged for the task done when the loss/damage occurred.

In the event of death or physical injury, the liability of XGL shall be limited to 500,000 U.S. dollars per accident.

14.13. The Client shall be required to defend the interests of XGL and minimize the losses or damage that has occurred or might occur.

14.14. XGL shall be exempt of all liability if the damage or loss was caused by force majeure, such as frost, extreme weather conditions, war, hostilities, state of emergency, quarantine, strike or other labour-related conflicts, uprising, terrorism, epidemics, traffic or cargo congestion, or any other reason that is beyond the control of XGL. If any of these circumstances stops XGL from carrying out the task that it has been assigned to do by the Client, it shall deem it impossible to carry out and XGL shall be freed of any obligation vis-à-vis the Client.

 

Clause 15. XGL-LOGISTICS.COM or MyXGL

XGL does not provide any type of guarantee in relation to the content of the MyXGL Services supplied through the website addresses www.xgl-logistics.com o www.myxgl.org, its specific functions, its reliability, its availability or its capacity to meet the individual needs of the contracting parties.

 

Clause 16. SEVERABILITY CLAUSE

If, for any reason, any clause of these conditions, or part of them, was declared to be null, void or unenforceable, or a Judge or an institution with enough competence and capacity thinks that XGL has omitted information, the other clauses shall continue to be valid and applicable.

 

Clause 17. APPLICABLE LAW AND JURISDICTION

These conditions, as well as any other contract signed with XGL and any dispute that might arise over these shall be governed and construed according to Spanish Law.

XGL clearly and firmly expresses its willingness not to submit any dispute to the Transportation Arbitration Boards.

Any dispute that might arise or action that might be taken against XGL, its employees and/or those working under it, shall be submitted to the Spanish Jurisdiction and within this, to the Courts and the Tribunals of the City of Alicante,  whereby the Client clearly waives any other jurisdiction to which they might be entitled.