1.1. In these Terms:
KN means the entity of the Kuehne + Nagel group of companies placing the Contract for the Services.
Charges means the charges for the Services;
Contract means the Carrier Contract Form, Standard Terms for Acquisition of Services, Rate Appendix and KN Carrier Code of Conduct;
Confidential Information means any confidential commercial, financial, technical or operational information, and any IP not publicly known or available, including information developed or created under the Contract which by its nature is confidential, and information that has been disclosed or made available to the Carrier, includes all information of KN or any Affiliate of KN.
Goods means any products and materials received by Carrier from KN, its customers, affiliates or suppliers;
Order Date means the Order Date specified in the Carrier Contract Form;
Carrier means the person or entity providing the Services and accepting the Contract;
Carrier's Personnel means all employees, staff, other workers, agents and consultants of the Carrier and of any Carrier who are engaged in the provision of the Services from time to time;
Carrier's Sub-Contractors means a third party which has been engaged by the Carrier; Services means all services provided by the Carrier to KN under and in connection with the Contract; Specification includes any information relating to the Services;
Writing means any similar expression, including facsimile transmission and comparable means of communication, but not electronic mail.
1.2. Any reference in these Terms to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Terms are for convenience only and shall not affect their interpretation.
KN and Carrier are individually hereinafter referred to as "Party" and together as the "Parties
2.1 The Carrier Contract Form is not a firm offer and KN reserves the right to revoke it any time prior to the Carrier's acceptance.
2.2 The Contract is non-exclusive. KN reserves the right to use its own resources and/or to employ or contract with other entities to provide or perform same or similar Services, respectively.
3.1 The Carrier shall perform all Services in accordance with KN's requirements set out in the Contract and shall employ duly trained professionals and shall use all reasonable skill and care in the provision of the Services.
3.2 Any information derived or otherwise communicated to the Carrier shall be regarded by the Carrier as strictly confidential, to be used exclusively by the Carrier for the performance of the Contract, and the Carrier shall not disclose to any third party or use any such Specification except in connection with the performance of the Contract and to the extent that it is or becomes public knowledge through no fault of the Carrier, or as required for the purpose of the Contract. Further, all of such information shall be returned to KN on demand, with no copies being retained by the Carrier.
3.3 The Carrier shall comply with all applicable laws, regulations or other legal requirements concerning the performance of the Services.
3.4 The Services shall be performed within the period stated in the Contract and the time of the performance of the Services is of the essence.
4.1 The Charges shall be fixed as stated in the Contract and, unless otherwise so stated, shall be:
4.1.1 Texclusive of any applicable value added tax (which shall be payable by KN subject to receipt of a valid VAT invoice) and if such value added and/or similar tax is applicable, the Carrier shall invoice KN in accordance with applicable rules so as to allow KN to reclaim such tax from the appropriate government authority;
4.1.2 Inclusive of all charges, such as but not limited to shipping, carriage, payroll taxes and insurance.
4.1.3 Any sales, use, excise and/or other levies, if applicable, will not be included in the Carrier's price but will be separately identified on Carrier's invoice.
4.1.4 Neither Party is responsible for the taxes on the other Party's income or the income of the other Party's personnel or sub-contractors. In addition, the Carrier agrees to indemnify, defend and hold harmless KN and its affiliates against all taxes, fines and penalties assessed or levied against or on account of wages, salaries, social security benefits or other benefits paid to the Carrier's employees or employees of the Carrier's Sub-Contractors.
4.2 No increase in the Charges may be made without the prior consent of KN in Writing.
5.1 Carrier may invoice KN within 6 (six) months after performance of the Services, as the case may be, and each invoice shall be submitted in original.
5.2 Unless otherwise stated in the Contract, KN shall pay Charges within 60 (sixty) days from receipt by KN of a proper and undisputed invoice.
5.3 KN may set off or withhold payment against any sums owed to KN by the Carrier.
6.1 Carrier warrants to KN that the Services will be performed in accordance with all applicable laws and by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for KN to expect in all the circumstances.
6.2 Carrier shall be liable for any losses, damages or claims resulting from its or its representatives' or sub- contractors' acts or omissions, including negligence, willful misconduct or breach of its obligation during the performance of the Contract. Carrier warrants to indemnify, defend and hold harmless KN from all claims, liabilities, expenses, fines, penalties and causes of action whatsoever arising from any delay, loss or damage or from any cause in connection with the Services including breach of the terms of the Contract. The provisions of this clause 6.2 will survive and remain in force even if the Contract expires or is terminated for any reason.
6.3 KN shall not under any circumstances be liable to the Carrier or any other person arising out of or in connection with the Contract for any indirect or consequential loss or damage or any loss of or damage to profit, revenue, savings, use, goodwill or business, in each case howsoever caused including without limitation by misrepresentation (whether made prior to and/or in the Contract), negligence, other tort, breach of contract or breach of statutory duty.
6.4 Nothing in the Contract shall be deemed to limit or exclude either party's liability for fraud or for death or personal injury caused by its negligence or to the extent otherwise not permitted by law.
7.1 The Contract will remain in effect from the Order Date unless either Party terminates the Contract as per provisions provided in the Contract.
7.2 KN may terminate the Contract in respect of all or part of the Services, without prejudice to any other rights under this Contract, by giving notice to the Carrier. KN's sole liability shall be to pay to the Carrier the Charges for the Services properly performed.
7.2.1 Carrier may terminate the Contract upon giving KN Ninety (90) days prior written notice of its intention to terminate.
7.3 Either Party may terminate the Contract without liability to the other Party by giving prior notice in Writing to the other Party at any time if:
7.3.1 the other Party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into receivership or liquidation (otherwise than for the purpose of solvent amalgamation or reconstruction); or
7.3.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the other Party; or
7.3.3 the other Party ceases, or threatens to cease, to carry on business; or
7.3.4 KN reasonably apprehends that any of the events mentioned above is about to occur in relation to the Carrier and notifies the Carrier accordingly.
7.4 Termination of the Contract for any reason shall not release either Party from any obligation which accrued prior to termination, or which is by its nature to continue beyond termination.
8.1 The following provisions shall apply in respect of any transport and distribution Services provided by the Carrier pursuant to the Contract.
8.2 Except where stipulated otherwise by KN in Writing, the Carrier and/or Carrier Sub-Contractors shall at all times maintain all-risks insurance cover in respect of any Goods transported, handled or stored by the Carrier and/or Carrier Sub-Contractors for KN as part of the Services. Carrier will include a release and waiver of subrogation in favor of KN in its insurance policies, failing which it shall indemnify and hold harmless KN from and against any such subrogation claims.
8.3 The Carrier shall procure that its personnel performing the transport Services shall obtain signed proof of delivery forms and other documentation when delivering and/or collecting goods as the KN shall direct from time to time.
8.4 It is agreed between the Parties that under no circumstances shall the Carrier have for monies owed to it any lien on any and all property of the KN, its affiliates or customers including but not limited to goods, coming into actual or constructive possession or control under the Contract.
9.1 Carrier confirms to have received, read and understood the KN Carrier Code of Conduct and agrees to at all times abide and cause its employees and sub-contractors to abide by the principles set out therein.
9.2 Carrier represents and warrants that it is and shall remain during the term of the Contract in compliance with all applicable laws, regulations and codes, including but not limited to all anti-bribery laws and regulations. In connection with any aspects of the contract or any other transaction involving KN, Carrier has not and will not, directly or indirectly, in connection with the performance of services under the Contract or otherwise on behalf of KN engage in prohibited conduct. Prohibited conduct includes to promise, offer or grant to a person any undue advantage or to request or accept any undue benefit or advantage to improperly influence actions.
9.3 KN or its designated representatives shall have the right to access, audit and review the books and records of the Carrier, and to keep copies thereof, to the extent relevant to the Contract. Such access, audit and review shall be reasonable as to scope, place, date and time and the Carrier shall fully and in a timely manner cooperate in any review or audit conducted by or on behalf of KN, including responding accurately and completely to all inquiries and providing any requested documents.
9.4 KN may terminate the Contract immediately upon written notice in the event the Carrier has failed to meet its obligations in this section, whereupon KN shall have no further obligation or liability under the Contract. If KN reasonably believes that the event given rise to such a termination also constitutes a violation of the U.S. Foreign Corrupt Practices Act or any other applicable Anti-Bribery Laws, any claims for payment by the Carrier with regard to the Contract shall be automatically terminated and the Carrier shall indemnify and hold harmless KN against any and all claims, losses or damages arising from or related to termination, or a determination to withhold payments under the Contract.
10.1 The Contract is personal to the Carrier and the Carrier shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
10.2 The relationship between the parties shall only be that of independent contractors. Nothing in the Contract will constitute a partnership or joint venture between the Parties. The Carrier will not represent itself as the agent or partner of KN; or do anything (or omit to do anything) which might result in any person believing that the Carrier has the authority to contract or enter into commitments on behalf of, or in the name of, KN.
10.3 A notice required or permitted to be given by either Party to the other under these terms shall be in Writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
10.4 No waiver by KN of any breach of the Contract by the Carrier shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.5 If any provision of these terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and the remainder of the provision in question shall not be affected.
10.6 The Contract constitutes the complete expression of both Parties' agreement and understanding with respect to the subject matter herein and supersedes all other prior agreements, undertakings, obligations, promises, arrangements, communications, negotiations and understandings whether oral or written, by the Parties with respect to the subject matter hereof.
10.7 Any dispute arising under or in connection with the Contract shall be settled amicably between the authorized representatives of the parties, failing which either party may institute any action against the other party only in the place where the KN has its principal place of business and shall be decided according to the law of the country of that place.