General Trading Terms and Conditions for Solent Gateway Limited
1. Definitions and Interpretations
1.1 In these Terms and Conditions, the following words have the following meanings:
|“Act“||means the Southampton Harbour Act 1939 as may be amended, varied or extended from time to time;|
|“Affiliate“||means in relation to any company:(a) a company which is either a Holding Company or a Subsidiary of such company; or(b) a company which is a Subsidiary of a Holding Company or which such company is also a Subsidiary;|
|“Applicable Laws“||means all applicable international, European and national laws, regulations, regulatory requirements, codes of practice, practice directions of the International Maritime Organisation or the Health and Safety Executive, sanctions and byelaws;|
|“Charges“||includes all charges set out in Schedule X and any other charges imposed by the Supplier from time to time in respect of any Services;|
|“Community System“||means the computer system used by the Supplier, shipping lines, agents, forwarders, hauliers, freight operating companies and others for customs clearance and inventory control of imports and exports, and any electronic data system that may succeed it and includes any additional electronic systems or interactive services provided by or on behalf of the Supplier for use by the Customer;|
|“Cruise or Ferry Passenger Services“||means Passenger Services provided to or in connection with a cruise vessel, passenger ferry or any other Ship whose primary purpose is the movement of people;|
|“Customer“||includes any person who:|
|(a) visits the Port Premises;|
|(b) is the Owner of Goods or Equipment delivered, brought into or come howsoever to be upon the Port Premises;|
|(c) is the Owner, master or crew of or a passenger on a Ship which enters the Port Premises;|
|(d) by itself, its employees, contractors or agents avails itself of any facility or Services provided by the Supplier; or|
|(e) by itself, its employees, contractors or agents seeks to avail itself of any facility or Services provided by the Supplier;|
|“Equipment“||means any plant, machinery, container, package, case, pallet, vehicle (private or commercial), trailer, truck, train or wagon of any description;|
|“Exclusion Zones”||means areas of the Port specified by the Supplier or the MoD and communicated to the Customer whether specifically or generally by signage within the Port;|
|“Explosive Materials”||means a chemical, device or other substance which explodes or causes explosion;|
|“Goods“||means cargo or material of any description whatsoever together with any Plant, package, case, pallet, container or other thing which conveys, carries, contains, protects or supports cargo or is designed or made to do so;|
|“Holding Company“||has the meaning given to it in section 1159 of the Companies Act 2006;|
|“ISPS Code“||means the International Ship and Port Facility Security Code forming part of the Safety of Life at Sea (SOLAS) Convention of the International Maritime Organisation;|
|“Harbour Authority”||means Associated British Ports (Southampton);|
|“Harbour Master“||means the harbour master for the Port of Southampton and includes his or her deputies and every officer of the Harbour Authority having the powers of a harbour master under the Harbours, Docks and Piers Clauses Act 1847 in respect of the Port of Southampton;|
|“Luggage“||means any property travelling with a Passenger but excludes any Goods contained in or carried on board a Ship;|
|“Manager“||means any manager duly appointed from time to time by the Supplier to be in charge of a department, division or operation at or on the Port Premises;|
|“MoD”||means the Ministry of Defence and HM Armed Forces and any Goods or Equipment belonging to or used by the MoD or HM Armed Forces and any personnel employed by or in the service of the MoD or HM Armed Forces;|
|“Owner“||(a) when used with reference to Goods or Equipment includes the owner, container owner, container lessee, agent, bailee, consignor, consolidator, consignee, freight operating company or other person in charge of the Goods or Equipment and their respective agents in relation thereto;|
|(b) when used with reference to any Ship includes the registered owner, agent, charterer (time, voyage or demise), line operator, manager, master or other person in charge of the Ship; and|
|(c) when used with reference to any road or rail vehicles includes the owner, agent, driver or other person in charge of the vehicle;|
|“Passenger“||means any person using the Port Premises as the point of embarkation or disembarkation in connection with travelling on a Ship;|
|“Passenger Services“||means services provided to or in connection with Passengers and their Luggage including but not limited to the provision of terminal facilities for the embarkation or disembarkation of Passengers and their Luggage, clearance through HM Revenue & Customs of Passengers and their Luggage and any other ancillary services related to Passengers and their Luggage;|
|“Plan“||means drawing number [ ] appended to these Terms and Conditions;|
|“Plant”||means any vehicle, trailer (whether or not carrying or incorporation any tank or container), machine or container;|
|“Port”||means Solent Gateway Port, Sea Mounting Centre, Marchwood, Southampton, Hampshire, SO40 4ZG|
|“Port Premises“||means all land, berths, buildings, works and other premises comprising the Port in in the area shown on the Plan];|
|“Services“||means any operation, work or services performed or provided by the Supplier in connection with Goods, Equipment or a Ship and in particular with the berthing, unberthing, moving and servicing (including bunkering or watering) or repairing of any Ship or Equipment, the shipping and unshipping of Goods, the sorting, weighing, marking, checking, recording, coopering, storing, devanning or revanning and general handling and movement of Goods and Equipment by road, rail or otherwise, the embarking, disembarking and movement of crews and passengers and Services includes the provision of any part of the Port Premises for the placement of any Goods or Equipment;|
|“SGL”||means Solent Gateway Limited;|
|“Ship“||means any vessel, containership, barge, lighter, non-displacement craft, hydrofoil, hovercraft or other vessel of any description or any part thereof however navigated or propelled;|
|“Subsidiary“||has the meaning given to it in section 1159 of the Companies Act 2006;|
|“Supplier“||means the relevant entity providing the Services and will be either SGL or an Affiliate of SGL;|
|“VGM”||means verified gross mass;|
|“VGM Procedures”||the procedures which SGL has published for the production and provision of the VGM in accordance with clause 5 of these Conditions and which can be found at [website address];|
|“Writing”||means any communication consisting of words in any legible or visible form, including words produced by any form of electrical or mechanical means and in typed or printed format as well as in manuscript|
1.2 Where the context so admits or requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
1.3 Clause headings and sub-headings are for ease of reference and do not form part of or affect the interpretation of these Terms and Conditions.
1.4 References to each party herein include references to its successors in title and permitted assignees and novatees.
1.5 Any phrase introduced by the terms “including”, “include”, “in particular”, or any similar expression are to be construed as illustrative and do not limit the sense of the words proceeding those terms.
1.6 Any reference to “person” includes any natural person, company, body corporate or unincorporate, or other judicial person, partnership, firm, joint venture or trust.
1.7 References to any statute or statutory provision are to be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced except to the extent that any amendment, consolidation, modification, extension, re-enactment or replacement after the date the parties entered into a relationship would extend or increase the Supplier’s liability.
1.8 In the event that any liability or duty arising hereunder attaches to more than one Customer, such liability or duty is joint and several.
2. Application of Terms and Conditions
2.1 Save as otherwise specifically provided, these Terms and Conditions apply:
- 2.1.1 to all Services performed by the Supplier whether directly or indirectly and whether within the area of the Port Premises or elsewhere; and
- 2.1.2 to all or any access of or by any Goods, Equipment, person or vehicle to or from the Port Premises; and;
- 2.1.3 to all other relationships, whether contractual or otherwise and whether created with or without the agreement of the Supplier.
2.2 These Terms and Conditions do not apply to the MoD.
2.3 Each Customer warrants that it acts as agent for each and every (other) Owner of the Goods, Equipment or Ship as the case may be and will procure acceptance of these Terms and Conditions by each and every Owner. In the absence of express acceptance by the Customer of these Terms and Conditions, acceptance is implied in the event of the entry or delivery of any Ship, person, Goods or Equipment into or onto the Port Premises and/or the submission of any documentation via the Community System or otherwise or oral application to the Supplier for entry to the Port Premises or for any Services or the use of any facility by or on behalf of any Customer.
2.4 Subject to clauses 2.7 to 2.11 and 4.2, these Terms and Conditions constitute the entire agreement between the Supplier and the Customer and supersede any previous agreement or arrangement between them relating to the subject matter hereof and it is expressly declared that no variation to these Terms and Conditions is effective unless made in writing and signed by the duly authorised representatives of both parties.
2.5 No printed terms or conditions of any purchase order or other correspondence or documents issued by the Customer at any time in connection with the Services apply.
2.6 These Terms and Conditions are in addition to and not in substitution of the rights and powers of the Harbour Master conferred by statute. Furthermore the Customer, its employees, agents, contractors, Goods, Equipment and Ships are subject to any byelaws (made pursuant to the Act) for the time being in force. In the event of any conflict between these Terms and Conditions and the byelaws then the latter prevail to the extent of such conflict.
2.7 Where the Customer is issued with any security pass or identification card in connection with its access to the Port Premises, the Customer must comply with any additional terms and conditions governing the use of such security pass or identification card.
2.8 The Supplier may issue separate terms and conditions governing the provision of specialist services. Unless specified otherwise in writing, such additional terms and conditions apply in respect of the specialist services but these Terms and Conditions also continue to apply to the extent they are applicable.
2.10 For the avoidance of doubt, where the Customer is acting or purports to act as an agent for a principal then it contracts with the Supplier on these Terms and Conditions.
2.11 In respect of Passenger Services:
- 2.11.1 no Cruise or Ferry Passenger Services will be provided at the Port Premises without the express prior agreement of the Supplier and the express agreement of further Terms and Conditions to apply to those services; and
- 2.11.2 any Passenger Services other than Cruise or Ferry Passenger Services may only be provided at the Port Premises with the prior agreement of the Supplier and are subject to these Terms and Conditions with such further express conditions as the Supplier may stipulate at the time of the prior agreement.
3. Provision of Services
3.1 The Supplier warrants that the Services will be carried out with reasonable skill and care.
3.2 The Supplier will exercise reasonable despatch in executing orders for its Services but will not be liable for any delay whatsoever, howsoever caused.
3.3 Goods and Equipment which for any reason cannot be delivered at the time of landing ex-ship or ex-train will be placed on the quays, in a transit shed or elsewhere within the Port Premises at the expense and sole risk of the Customer. Charges for transit shed and quay rental will be made where appropriate.
3.4 The Supplier reserves the right to:
- 3.4.1 appoint sub-contractors to perform all or any part of the Services;
- 3.4.2 at any time before it commences the performance of any Services, serve written notice on the Customer declining to undertake the performance of such Services and giving reasons for so declining;
- 3.4.3 suspend the provision of any Services in the event of any breach of these Terms and Conditions by the Customer;
- 3.4.4 suspend the provision of any Services in the event that the Supplier reasonably believes the Customer is attempting to damage or disrupt the Community System or any other electronic system provided by or on behalf of the Supplier.
3.5 In the event the Supplier declines to perform the Services or suspends performance of the Services in accordance with clauses 3.4.2 to 3.4.4 respectively, the Supplier will not have any liability for any loss or damage to Ships, Goods or Equipment arising out of the non-performance or cessation of performance of the Services.
3.6 In the case of the Supplier declining to perform any Services by written notice in accordance with clause 3.4.2, for any reason other than its own inability to perform the Services, the Customer must, at its own expense, remove any Goods or Equipment or both from the Supplier’s premises within 30 days of the date of said notice, failing which the Supplier may so remove them at the expense and risk of the Customer.
3.7 In the event the Supplier suspends provision of the Services in accordance with clauses 3.4.2 to 3.4.4 and declines to recommence the provision of the Services, the Supplier will notify the Customer and the Customer must, at its own expense, remove any Goods or Equipment from the Supplier’s premises within 30 days of the date of said notice failing which the Supplier may so remove them at the expense and risk of the Customer.
3.8 The Customer acknowledges and agrees that the Supplier has absolute discretion in the allocation of berths, rail terminal capacity, quay plant, machinery, labour and storage space.
3.9 The acceptance by the Supplier of Goods for shipment or carriage by rail does not imply any warranty that such Goods will be shipped or carried by rail. The acceptance or refusal of Goods for shipment or carriage by rail is the responsibility of the Customer and not the Supplier.
3.10 A Ship shall be deemed to have entered the Port Premises when it berths at the Port. A Ship shall be deemed to have left the Port Premises when its mooring lines are removed from the Port’s berth
3.11 Goods or Equipment shall be deemed to have been delivered to the Port Premises in the following circumstances:
- 3.11.1 in the case of Goods or Equipment delivered by Ships, once the Goods or Equipment have left the Ship’s tackle or have left the Ship having been lifted from the Ship by the Supplier’s tackle;
- 3.11.2 in the case of Goods or Equipment delivered by means other than Ships, once the Goods or Equipment enter the Port Premises.
3.12 Goods or Equipment shall be deemed to have been delivered to the Customer:
- 3.12.1 in the case of Goods or Equipment to be delivered to a Ship, once the Goods or Equipment have been lifted by the Ship’s tackle from the Port or once the Supplier’s tackle has placed the Goods or Equipment on to the Ship and come clear of the Goods or Equipment;
- 3.12.2 in the case of Goods or Equipment to be delivered to a road or rail conveyance, once the Goods and Equipment have been placed upon the road or rail conveyance.
3.13 [Without prejudice to the Terms and Conditions herein, the Supplier reserves the right but is under no obligation to open containers, inspect Goods or Equipment or refuse to handle, move or otherwise deal with Goods or Equipment which in the Supplier’s opinion appear to be or may become dangerous or hazardous to life, the environment or other property.]
4. Solas Amendment and Container VGMs
4.1 [The Customer’s attention is drawn to the SOLAS Convention, the amendment to Chapter VI, regulation 2 of the SOLAS Convention (requiring the mandatory provision of the VGM) and the Guidelines regarding the VGM of a container carrying cargo and any other guidelines issued by any competent authority (the “Guidelines”).
4.2 The Customer’s attention is also drawn to the Supplier’s VGM Procedures to comply with the SOLAS Convention and the Guidelines, details of which can be found at [website address]. The Supplier ‘s VGM Procedures may be amended from time to time and the Customer is obliged to keep itself appraised of such amendments by reviewing the website.
4.3 The Customer warrants that it shall comply with the Supplier’s VGM Procedures and shall either supply to the Supplier and to any other relevant party a VGM or instruct the Supplier to provide a VGM in accordance with the Supplier’s VGM Procedures.
4.4 If, and to the extent that, the Customer fails to comply with the Supplier’s VGM Procedures:
- 4.4.1 the Supplier may, in its absolute discretion, but shall not be obliged to, arrange for a VGM to be provided and the Customer shall be responsible for any costs or charges arising in relation to the provision of such VGM;
- 4.4.2 the Supplier may withhold the Goods and any container from shipment and arrange the storage of such Goods and container at the sole expense and risk of the Customer;
- 4.4.3 the Customer shall pay any charges which the Supplier may raise in relation to the relevant Goods or container; and
- 4.4.4 the Customer shall indemnify the Supplier and hold the Supplier harmless from and against all and any claims, costs, demands or losses of whatever nature which the Supplier may incur or suffer by reason of any such failure.
4.5 The Supplier may in its absolute discretion, but shall not be obliged to, check the VGM of any container. If the Supplier considers that the VGM provided by the Customer is incorrect, the Supplier may amend the VGM provided by the Customer. The Supplier shall be entitled to charge for the checking of the VGM in accordance with its rates as published on its website whether or not the VGM provided by the Customer is accurate
4.6 The Customer agrees that the Supplier may disclose the VGM to any party which may require disclosure of the VGM for any reason including, without limitation, the Maritime and Coastguard Agency and any carrier or service provider interested in or concerned with the carriage or handling of the Goods or container.
4.7 The Customer warrants that it is the ‘shipper’ of the Goods or container for the purposes of the SOLAS Convention or that it is authorised by such shipper to instruct the Supplier to perform the Services in accordance with the Supplier’s VGM Procedures.
4.8 The Supplier’s charges for its VGM Procedures are set out on the Supplier’s website at the link in clause 4.2 above and the Customer agrees to pay such charges.]
5. Customer’s Warranties
5.1 Each Customer which avails itself of any Services provided by the Supplier in respect of any Goods, Equipment or Ship warrants to the Supplier that it has the authority of all Owners having any title to or interest in Goods, Equipment or Ship to accept these Terms and Conditions on their behalf as well as on its own behalf as principal and has specifically notified these Terms and Conditions to such persons.
5.2 All such Owners, including finance companies, lessors and others having or claiming to have title to or an interest in Goods, Equipment or Ship are advised that unless the Supplier is notified in writing of their title or interest in any particular Goods, Equipment or Ship prior to the commencement of any relationship between the Supplier and the Customer, these Terms and Conditions are deemed to have been accepted with the authority of such persons. Such persons’ rights over and in respect of the Goods, Equipment or Ship are subordinated to the rights of the Supplier hereunder.
5.3 The Customer warrants that it will procure that the rights, exceptions, defences and limits available to the Customer as regards third parties, either by statute or by contractual terms, are extended to the Supplier in so far as lawfully possible in relation to those third parties.
5.4 The Customer warrants that its employees (and those of any agents or contractors it may engage including without limitation hauliers) are properly trained and competent (which for this purpose, includes the ability competently to read and speak English to carry out the tasks at any time assigned to them including in relation to the giving of any instructions to the Supplier or the inputting of any information into any electronic service or system operated or managed by or on behalf of the Supplier whether such instruction or input of information is given in writing, orally, electronically or by any other means). The Customer further and separately warrants that such persons have the full authority to give such instructions or input such information.
5.5 The Customer warrants that it has obtained or will obtain and maintain at its own expense, all necessary licences and authorisations and has complied or will comply with all Applicable Laws relating to the carriage, handling, storage and movement of the Goods and or Equipment.
5.6 The Customer warrants that it will at all times comply with any lawful instructions of the Harbour Master.
5.7 The Customer warrants that it will share with the relevant Manager any notification it receives from or sends to the Harbour Master simultaneously when it receives such notification. The relevant Manager and the Supplier will not be liable to act upon such notification or to pass any information to the Harbour Master on behalf of the Customer.
5.8 The Customer warrants (unless otherwise specified in writing to the Manager) that any Goods, Equipment or Ship which it delivers, directs to or causes to be upon the Port Premises:
- 5.8.1 are not dangerous or hazardous to health, property or the environment or poisonous, flammable or liable to become so in the form in which they are delivered and/or in which they are to remain while on the Port Premises;
- 5.8.2 are not toxic or liable to give off any injurious emission, including dust, gas, fumes, liquid or radiation;
- 5.8.3 are not infested, verminous, rotten or subject to fungal attack and not liable to become so while on the Port Premises;
- 5.8.4 are not over-heated or under-heated or liable to become so while on the Port Premises;
- 5.8.5 will not contaminate or cause danger, injury, pollution or damage to any person or any other Goods, Equipment or Ship or the Port Premises or the environment adjacent thereto or more generally;
- 5.8.6 do not require for their safekeeping any special protection (other than as may be agreed in writing between the Supplier and the Customer) arising from vulnerability to heat, cold, natural or artificial light, moisture, salt, pilferage, vandalism or proximity to other goods or from their flammability but will remain safe if left standing in the open on the Port Premises or (where agreed in writing with the Supplier) in covered accommodation;
- 5.8.7 contain no unauthorised controlled drugs, contraband, pornographic or other illegal matter;
- 5.8.8 are properly and sufficiently packed, marked, documented and labelled, in accordance with all Applicable Laws for all shipping, cargo handling, despatch, customs and like purposes; and
- 5.8.9 are fit for their intended purpose and are in a fit and proper condition to be handled or otherwise dealt with by the Supplier, its equipment and its employees, agents and contractors.
5.9 The Customer warrants that it will immediately inform and keep informed the Manager of any occurrence or incident which might affect the safe and efficient operation of the Port Premises or other persons at the Port Premises or result in adverse environmental impact.
5.10 The Customer must take, at its own cost, such reasonable steps with respect to that itself, or its Goods, Equipment or Ship to prevent, minimise, control or eliminate any danger, inconvenience or adverse environmental impact as may be required by the Supplier.
5.11 Except for the use of marine band and radar radio frequencies, the Customer must not and warrants that it will not, without the prior written consent of the Supplier:
5.11.1 use any devices which transmit radio signals or attempt to block radio signals (including without limitation GPS) whilst on the Port Premises;
5.11.2 interfere with any systems, communication links and equipment or computer hardware and software whilst on the Port Premises; or
5.11.3 use or attempt to use any devices or software to gain unauthorised access to data and information held in the Community System.
5.12 In respect of any Ship of which the Customer is the Owner, the Customer warrants and undertakes to ensure that the Ship is operated in compliance with all Applicable Laws and international standards in relation to safety, stability, seaworthiness, fitness for purpose and security, including any regulations introduced pursuant to the ISPS Code.
6. Hazardous Goods and Waste
6.1 No waste material or Goods of a dangerous, hazardous or poisonous nature will be handled by the Supplier except by prior agreement with the Supplier and the Harbour Master and then only in accordance with the conditions prescribed by the Supplier, the Harbour Master and all Applicable Laws. The Supplier’s policy for handling such material can be provided upon request. Without prejudice to the above, the handling of Goods requiring fumigation must be in accordance with the Supplier’s Safe Code of Practice for Fumigation (also available upon request).
6.2 The Customer warrants that any waste material or Goods of a dangerous, hazardous or poisonous nature or any Equipment containing such material or Goods are properly marked with any warning as to the hazardous nature of any contents and the precautions to be taken in handling the same (in the event of the escape of anything injurious therefrom) as may be necessary to ensure the safety and health of all persons likely to handle or come into contact with the same.
7. Excluded Materials
7.1 The Customer warrants that it shall not bring Explosive Materials into the Port other than with the prior written consent of the Supplier.
7.2 The Customer acknowledges that Explosive Materials are handled at the Port by the MoD. The Customer will at all times comply with any restrictions imposed regarding entry into or activities carried on in any Exclusion Zones. The Customer will at all times immediately comply with any instructions given by the Supplier, the MoD or any other lawful authority in relation to safety arising out of the presence of Explosive Materials in or around the Port.
8. Disposal of Empty Cases, Packaging, etc.
8.1 After shipment or other removal of Goods from the Port Premises any package, case, pallet, or other similar thing which conveys or supports cargo, remaining empty or substantially empty and unused shall be removed by the Customer within 28 days of such shipment or other removal of the Goods or their becoming empty or substantially empty (as the case may be). If the Customer fails to remove these items within that period or such further period as the Supplier may in Writing agree to allow, the Supplier may for their sole benefit dispose of them (whether by sale, gift, destruction or otherwise) and shall not be liable, answerable or accountable to the Customer or any person interested in such items for so doing or for the proceeds of any such disposal.
9. Hours of Work
9.1 The Supplier shall not be bound to do any work outside the normal hours Monday to Friday, or on National Public Holidays, unless otherwise agreed in Writing by the Supplier, and shall be entitled to make additional charge for any work agreed and carried out outside such hours at the Customer’s request.
10. Documentation, Formalities, and Seals
10.1 All documentation submissions including delivery orders, sub-orders, shipping notes/advices, consignment notes, documents of title, goods handling instructions and orders for any Services must be submitted to the Community System (where the facility for submission is generally available) not less than 24 hours (or such shorter time as may be agreed in writing by the Supplier) before the Services are required to be performed. Any order given orally must be confirmed by or on behalf of the Customer via the Community System (where the facility for submission is generally available) or, in writing within 24 hours (where the facility for submission is not generally available).
10.2 All other notifications or communications must be made in accordance with clause 22. No communication may be made to or will be accepted by the Supplier in the form of a facsimile transmission.
10.3 The Supplier is not liable for any failure, disruption or other malfunction of the Community System.
10.4 The Customer is entirely responsible for compliance with formalities and procedures prescribed by any statutory, Government or local Government departments including, without limitation, HM Revenue & Customs, the UK Border Agency, the Home Office (including the UK Border Force), the relevant Port Health Authority and the Department for Environment Food and Rural Affairs. The Supplier is not liable for any acts or omissions of any of the foregoing bodies or any losses, claims or delays resulting from those acts or omissions including, without limitation, in respect of damaged Goods and Goods not satisfactorily re-vanned by the Supplier.
10.5 Unless agreed otherwise in writing, the Supplier is not responsible for checking seals or seal numbers and is not required to carry out any seal check or to note seal numbers on any document at any time whatsoever. Where seal numbers are noted for whatever reason by the Supplier then no representation is made by the Supplier as to the accuracy of the number noted or to the condition of the seal.
11. Import and Export Formalities
11.1 Authorisation for the removal of imported Goods and Equipment will not be granted by the Supplier unless such Goods and Equipment are correctly released and cleared with no statutory authority holds applied via the Community System, or local holds that may be applied via equipment control systems operated by or on behalf of the Supplier. Goods and Equipment which fall outside the scope of the Community System are subject to acceptance of other documentation as prescribed from time to time by the Manager so that the Goods and Equipment may be released to nominated persons.
11.2 All Goods and Equipment brought to the Port Premises for shipment will only be accepted in to the Port Premises if correctly entered by or on behalf of the Customer on the Community System and arriving at the Port Premises within the receiving period agreed by the Manager.
11.3 The Customer must ensure that any hazardous Goods are pre-entered as such on the Community System and must include the IMDG class and UN number. Such hazardous Goods must be labelled by or on behalf of the Customer in accordance with all Applicable Laws and accompanied by a duly authorised dangerous goods note.
11.4 Goods which fall outside the scope of the Community System must be accompanied by a standard shipping note, unit load note, dangerous goods note, vehicle condition report or temperature control document, as agreed with the Manager. Such note or report must be provided not later than:
- 11.4.1 the arrival of trucks/lorries conveying such Goods and/or Equipment at the Port Premises, in respect of Goods and/or Equipment brought to the Port Premises by road; or
- 11.4.2 the arrival of rail wagons conveying such Goods and/or Equipment at the Port Premises, in respect of Goods and/or Equipment brought to the Port Premises by rail, and in the case of Goods and/or Equipment brought to the Port Premises by rail must be the subject of prior notification to the Manager to allow any necessary train path, wayleave or other arrangements to be made with Network Rail or any other operator of rail services.
11.5 Subject to alternative arrangements being agreed in writing with the Supplier, a standard shipping note, unit load note, dangerous goods note, vehicle condition report, temperature control document or other document accompanying the Goods or Equipment must specify marks and number of packages, description of Goods, gross weight, any weight imbalances, cubic measurement, name of the Ship, port to which the Goods or Equipment are to be shipped, any special carriage or storage requirements of the Goods and the name and address of the Customer or Customer’s agent to whom Charges are to be rendered.
11.6 The Customer is responsible for all import duties, export duties, fines, charges and imposts relating to the Goods. The Customer indemnifies the Supplier against any claims made against the Supplier by HM Revenue & Customs or any other Government or regulatory agency and any other costs, charges and expenses in respect of any Goods under bond.
12. Goods, Equipment and Liens
12.1 The Supplier will, at its sole discretion, have the following powers in respect of Goods and Equipment on the Port Premises:
- 12.1.1 to relocate within the Port Premises such Goods and Equipment (except where Goods and Equipment is on part of the Port Premises which is leased to the Owner of the Goods and Equipment);
- 12.1.2 in the case of a hazard or other emergency to relocate and if necessary dispose of such Goods and Equipment; and
- 12.1.3 to remove, store, dispose of or sell Goods and Equipment abandoned, neglected or left unattended, whether wilfully or by default, on reasonable notice to the Owner (the length of such notice to be determined by the Supplier on a case by case basis and such notice will only be given where it is reasonably practicable to determine who is the Owner of the Goods and Equipment). The Supplier may charge for the reasonable costs incurred in respect of the removal, storage and disposal of such Goods or Equipment.
12.2 The Supplier will have a general, as well as a particular lien on all Goods, Equipment and documents relating to Goods and Equipment in its possession custody or control for all and any sums due to the Supplier at any time from the Owner or any other person interested in the Goods or Equipment whether in relation to the same Goods and Equipment or otherwise. In default of payment of any such sums the Supplier will be entitled to sell or dispose of such Goods or Equipment or documents as agent for and at the expense of the Owner and apply the proceeds in or towards the payment of such sums upon 14 days’ written notice to the Owner.
12.3 In the event that any Goods or Equipment held pursuant to the lien under clause 12.2 are perishable and in the view of the Manager it is impracticable to give the notice required by clause 12.2 because the Goods or Equipment will, or may, deteriorate in value during the delay occasioned by the giving of the notice, the Supplier may sell the Goods and Equipment without giving the said notice, but will as soon as practicable inform the person to whom the notice would have been given of the action being taken.
12.4 Upon accounting to the Owner for any balance remaining after payment of any sum due to the Supplier or its agents (including all costs) pursuant to clauses 12.2 and 12.3 the Supplier will be discharged of any liability whatsoever in respect of the Goods, Equipment or documents.
12.5 Where there is a sale of Goods or Equipment pursuant to clauses 12.1.3, 12.2 or 12.3 such sale is to be on the basis of the best offer immediately available, which may or may not amount to as much as the Owner (or any other person interested in the Goods or Equipment) may believe the Goods or Equipment to be worth in any specialist market place.
12.6 In relation to any Goods or Equipment:
- 12.6.1 whose gross weight is incorrectly stated;
- 12.6.2 whose gross weight exceeds the maximum gross weight appropriate for any handling equipment used (whether or not the Supplier knows at the time of such handling that the gross weight exceeds the appropriate gross weight for such handling equipment); or
- 12.6.3 whose weight distribution does not facilitate the safe onward transportation of such Goods or Equipment, whether by rail, road or otherwise the Supplier reserves the right not to handle such Goods or Equipment, but, in the event that the Supplier does handle such Goods or Equipment such handling by the Supplier will be at the sole risk of the Owner(s) of the Equipment or Goods.
12.7 In the circumstances described in clause 12.6, subject to clause 13.4, the Supplier will be exempt from all liability whatsoever for deficiency, loss, damage, delay, taint or misdelivery of or to the Goods or to the Equipment or for delay arising out of, caused or contributed to by the handling by the Supplier of the Goods or the Equipment.
12.8 The Customer must notify and must procure that any Owner other than the Customer notifies the Manager as soon as the Customer becomes aware of any overloading or uneven loading or any failure of a load bearing part of any lifting appliance or of the Equipment.
12.9 The Customer is responsible for insuring its Goods or Equipment against any loss, theft or damage which they may sustain within the Port Premises.
12.10 The Supplier has the right to open any Equipment to access any Goods contained in that Equipment.
13. Supplier Liability
Negligence or wilful act or omission only
13.1 The Supplier is exempt from all liability whatsoever for deficiency, loss, damage, taint, delay, or misdelivery of or to Goods or Equipment or damage or delay to a Ship, however or whenever caused except upon proof by the Customer (otherwise than by evidence only of such deficiency, loss, damage, delay, or misdelivery) that the deficiency, loss, damage, delay or misdelivery was caused by the negligent or unlawful act or omission of the Supplier.
Force majeure etc.
13.2 Subject to clause 13.4, the Supplier has no liability whatsoever (whether for negligence or otherwise) for deficiency, loss, damage, taint, or misdelivery or delay to a Ship or Equipment or Goods or any deficiency therein if the same arises out of or is caused by any of the following:
- 13.2.1 force majeure including, storm, tempest, lightning, snow, ice, drought or flood;
- 13.2.2 fire (including steps taken for the extinguishment thereof), explosion or smoke;
- 13.2.3 strikes, combinations, lock-outs, go-slows, blockades, or other industrial action (whether lawful or not) by any person or anything done in the course of furtherance of a trade dispute;
- 13.2.4 improper, insufficient, indistinct or erroneous marking or addressing of Goods or Equipment;
- 13.2.5 improper or insufficient packaging of Goods or Equipment;
- 13.2.6 any inherent defect, flaw or quality of the Goods or Equipment;
- 13.2.7 any act of the Supplier, its employees, agents or contractors reasonably necessary for the safety or preservation of persons, the Port Premises, a Ship and/or any Goods and Equipment;
- 13.2.8 theft or wilful damage unless proved by the Customer to have been committed by the Supplier;
- 13.2.9 vermin, insects, fungal attack, rot or corrosion;
- 13.2.10 heat or cold;
- 13.2.11 any act directly or indirectly occasioned by happening through or in consequence of war, threat of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military or usurped power, terrorism or acts of terrorism;
- 13.2.12 any act of any person or persons acting on behalf of any organisation with activities directed towards the overthrow by force of any de jure or de facto government;
- 13.2.13 civil disobedience at or in the vicinity of the Port Premises;
- 13.2.14 shortage of berthing space, labour, plant deficiency, fuel or power or any form of storage accommodation;
- 13.2.15 insufficient depth of water at any berth or the approaches thereto or the unsafe condition of any berth;
- 13.2.16 late receipt of HM Revenue & Customs entries or deliveries or landing orders, disputes in respect of documents, or declarations made for entry purposes by or on behalf of any person, delay in passing HM Revenue & Customs entries or obtaining clearance of the Goods, or omission of information from or an incorrect statement in any order to the Supplier relating to the Goods or Equipment;
- 13.2.17 the total or partial failure of the Community System or any other electronic services or systems offered at any time by or on behalf of the Supplier including the total or partial failure of any communication links with those services or systems;
- 13.2.18 human error on the part of the Supplier, its employees, agents or contractors in inputting any information into any electronic service or system operated or managed by the Supplier or its contractors;
- 13.2.19 compliance with the instructions or order of HM Revenue & Excise or any other regulatory or statutory body or court of law, in any jurisdiction; or
- 13.2.20 any other cause or event which the Supplier is unable to avoid and the consequences of which the Supplier is unable to prevent by the exercise of reasonable care
Financial and consequential losses etc.
13.3 The Supplier is under no liability whatsoever (whether for negligence or otherwise) for any loss of income, loss of profits or loss of contracts, hire costs, survey costs, legal expenses, de-vanning or re-vanning costs, packing costs or for any indirect or consequential loss or damage of any kind, in each case howsoever arising and whether caused by tort (including negligence), breach of statutory duty, contract or otherwise.
Death and personal injury
13.4 Nothing in these Terms and Conditions excludes or in any way limits the Supplier’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.
13.5 Subject to clause 13.4, the total liability of the Supplier for any loss, damage, claim, cost or expense in respect of any one event or occurrence will in no case be more than £1,000,000 and will be the lowest of the following as applicable:
- 13.5.1 Ship:
- (a) the value of that part or parts of the Ship to which the claim relates at the time of the damage or loss; or
- (b) the reasonable cost of repairs (as agreed between surveyors appointed by the Supplier and the Owner).
- 13.5.2 Equipment:
- (a) the reasonable cost of repairs;
- (b) the value of the Equipment to which the claim relates at the time of the damage or loss; or
- (c) the sum of: (i) £2,000 per dry van/general purpose container; (ii) £5,000 per refrigerated container; or (iii) £3,000 per any other unit of Equipment.
- 13.5.3 Goods:
- (a) in the case of loss or damage to Goods arising out of the performance of the/a contract of carriage, the defences and limits available to the carrier under the said contract of carriage;
- (b) the value of the Goods affected to which the claim relates; and if any claims in respect of a part consignment, then the value only of the part consignment as a proportion of the whole consignment (to be calculated by weight in the absence of specific values for the damaged part);
- (c) the reasonable cost of repairs; or
- (d) in any other case the lesser of:
- (i) the sum of £1,300 per tonne (or pro rata for any part of a tonne); or
- (ii) the sum of £52,000 per container unless the nature and value of the Goods had been declared to the Supplier and the Supplier has agreed a higher limit of liability with the Customer (as evidenced in writing) prior to such Goods arriving at the Port Premises.
13.6 Subject to clause 13.4, the Customer may not bring any claim against the Supplier in respect of any single incident below the de minimis limit of £1,000.
13.7 Notwithstanding clause 13.5, the Supplier has the right, in any circumstance, to elect to rely on (in the alternative) any relevant statutory provision providing for limitation and/or exclusion of liability including, but not restricted to, the provisions of the Merchant Shipping Act 1985.
13.8 It is a condition precedent to the liability of the Supplier that the Supplier is notified by email addressed to the Manager at [email@example.com] with the Harbour Master copied followed up with a copy of the email sent by post to the Supplier of any damage alleged to have been caused to a Ship and to permit inspection thereof prior to sailing.
13.9 Any claim made against the Supplier shall be made within the following periods:
- 13.9.1 in the event of damage or partial loss to any Goods, Equipment or Ship, within 7 days of such Goods, Equipment or Ship leaving the Port Premises;
- 13.9.2 in the event of total loss to any Goods, Equipment or Ship within 7 days of the date upon which the Customer ought reasonably to have discovered the loss; and
- 13.9.3 in all other cases, within 14 days of leaving the Port Premises.
13.10 Failure to make a claim within the above periods shall cause the claim to be absolutely barred unless the Customer can demonstrate that it was not possible to make the claim within the above periods but that the claim was made in writing to the Supplier as soon as reasonably practicable.
13.11 Notwithstanding the provisions of clause 13.8 and subject to clause 13.4, the Supplier will, in any event, be discharged of all liability whatsoever howsoever arising unless proceedings are brought within 12 months from the date of the event or occurrence alleged to have given rise to a cause of action against the Supplier.
13.12 These Terms and Conditions and in particular the limitations on liability are intended to inure for the benefit of both the Supplier and its employees, agents and contractors to which end the Supplier contracts on these Terms and Conditions on its own behalf and as agent for and trustee for the benefit of its employees, agents and contractors. The Customer agrees that the exclusions and limitations on the Supplier’s liability benefits the Supplier’s contractors, employees and agents and anyone else who may be vicariously liable for act or omissions of such a person.
13.13 The Supplier is entitled, in its absolute discretion, to reduce a claim for betterment.
13.14 The Customer is under a duty to mitigate its losses, including for example, to obtain salvage.
14. Customer Indemnity
14.1 The Customer is liable for and will indemnify and hold harmless the Supplier against any and all fines, claims (including claims for personal injury or death), actions, liabilities, losses, damages and expenses (including legal expenses) incurred, whether or directly or indirectly, by the Supplier, its employees, servant, agents or sub-contractors and howsoever caused, even if contributed to by the negligence of the Supplier, its employees, servant, agents or sub-contractors, which arise out of or in connection with:
- 14.1.1 the failure of the Customer to comply with any of these Terms and Conditions or the requirements of any Applicable Laws or the taking of any step which the Supplier considers to have been reasonably required to remedy the same or to comply with the requirements of any authority in any jurisdiction;
- 14.1.2 any act wherever carried out, omission or instruction, misrepresentation, negligence, fraud, wilful misconduct or breach of statutory duty of the Customer, any Owner or any other person interested in the Goods, Equipment or Ship; or
- 14.1.3 the nature, state, weight (including within the circumstances in clause 15.6), fitness for purpose, packaging, character, labelling or presentation of the Customer’s Goods or Equipment.
14.2 Any sums payable hereunder are chargeable to and payable by the Customer in addition to and subject to the same provisions as the Charges.
15.1 Unless otherwise agreed in writing all Charges must be paid:
- 15.1.1 for services provided in respect of the berthing of Ships, within 7 days of the invoice date;
- 15.1.2 for all other Charges, within 14 days of the invoice date.
15.2 The Customer must pay or must procure that any other person liable for the Supplier’s Charges (including where applicable, agents pays to the Supplier by bank transfer to an account specified by the Supplier, or as otherwise agreed in writing, all sums immediately when due without deduction, withholding, abatement, set-off, or any counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law, or due to overpayment by the Customer or an undisputed credit owed by the Supplier to the Customer.
15.3 Notwithstanding any agreement by the Supplier to collect charges from any person other than the Customer, the Customer remains liable to the Supplier for payment of all charges when due, unless and until payment is made in full.
15.4 All payments by the Customer in respect of the Services must be in UK pounds sterling.
15.5 Interest is payable upon all sums payable by the Customer which remain unpaid after the due date at a rate of 5% above the base rate of the Royal Bank of Scotland.
15.6 In the event that any payment is not made within the periods set out in clause 15.1, or such other period as has been agreed in writing, then the Supplier is entitled to immediately recover from the Customer or other person liable for the Supplier’s Charges all sums then due to or levied by the Supplier (including any accrued interest and other Charges properly levied in accordance with these Terms and Conditions) and all losses arising to the Supplier as a result of such non-payment. In addition the Supplier reserves the right to suspend or withdraw Services.
15.7 All sums payable under these Terms and Conditions are exclusive of value added tax and any other duty or tax, which is (if and to the extent applicable) payable by the Customer at the rate and in the manner from time to time prescribed by law.
15.8 If the Customer ceases to trade (either in whole, or as to any part or division involved in the performance of these Terms and Conditions), or becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed over the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or, where the Customer is an individual, the Customer becomes bankrupt or makes any composition or arrangement with its creditors, or anything analogous happens in any jurisdiction, then:
- 15.8.1 the Supplier is entitled to immediately recover from the Customer or any other person liable for the Supplier’s Charges (notwithstanding that the periods stated above or any period of credit extended to the Customer may not have expired) all sums then due to the Supplier (including any accrued interest and other Charges properly levied in accordance with these Terms and Conditions) and all losses arising to the Supplier as a result of such circumstances arising; and
- 15.8.2 the Supplier may, without prejudice to any other remedy or right available to it, delay, withhold or refuse to provide any Services.
15.9 Notwithstanding clause 15.6, if the Supplier reasonably considers that Charges levied or to be levied will not be paid within the periods stated in clause 15.1, the Supplier is entitled forthwith upon giving the Customer notice in writing, to withdraw any period of credit extended to the Customer or other person liable for the Supplier’s Charges and to require payment of all such charges forthwith upon receipt of the said notice or subsequent invoice.
15.10 Any bona fide query to be raised by the Customer on any invoice issued by the Supplier must be made in writing within 14 days of the date of the invoice or the Customer will be deemed to have accepted the invoice. Disputed portions of invoices may be withheld until the dispute is resolved but undisputed amounts must be paid on the due date.
16. Payment for Services and Facilities
16.1 The use of Services provided by the Supplier is subject to payment of the Charges and the use of such a Service is deemed as acceptance of such Charges.
16.2 The Customer acknowledges that dues are payable to the Harbour Authority and that the Supplier is not responsible for collecting such dues on behalf of the Customer.
17. Data Protection
17.1 For the purposes of security, safety and crime prevention, CCTV cameras are used throughout the Port Premises and the information and images they produce are monitored and recorded. The scheme is controlled by the Supplier. For more information, contact: Head of Security, Solent Gateway Limited, Marchwood Port, Southampton SO40 4ZG.
17.2 By entering into the Port Premises, all persons consent to the recording, storage and use of images and data relating to them and their vehicles for the purpose of security, safety and crime prevention. Data and images may also be passed to the police, HM Revenue and Customs and similar third parties in connection with such purposes. Data and images will not be sold to any third parties.
18. Governing Law and Jurisdiction
18.1 The construction, validity and performance of these Terms and Conditions and any dispute or claim arising out of or in connection with these Terms and Conditions, their subject matter or formation (including non-contractual disputes or claims) is to be governed by and construed in accordance with English Law.
18.2 All claims or disputes arising out of or related to these Terms and Conditions (including non-contractual disputes or claims) must be submitted to the jurisdiction of the English courts, provided that the Supplier will have the right, as claimant, to initiate proceedings against the Customer either (a) in the jurisdiction of the courts of the country of the principal domicile of the Customer or (b) in the jurisdiction of the courts of the country in which any Ship or other asset (including a bank account) of the Customer is, or may, at the instigation of the Supplier be detained or frozen.
19.1 The failure of the Supplier to enforce or to exercise at any time or for any period of time any term of or any right pursuant to these Terms and Conditions does not constitute, and is not to be construed as, a waiver of such term or right and in no way affects the Supplier’s right later to enforce or to exercise it.
19.2 If any provision of these Terms and Conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, such term will, insofar as it is severable from the remaining terms, be deemed omitted from these Terms and Conditions and will in no way affect the legality, validity or enforceability of the remaining terms.
19.3 Subject to clauses 19.4 and 19.5, the Supplier and Customer agree that these Terms and Conditions may be relied upon and are enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 (“1999 Act”) by the Supplier’s agents and contractors against a Customer.
19.4 The third party rights referred to in clause 19.3 may only be enforced by the relevant third party with the consent of the Supplier and subject to and in accordance with the provisions of the 1999 Act and all other relevant terms of these Terms and Conditions.
19.5 Notwithstanding any other provision of these Terms and Conditions, the Supplier and Customer may rescind or vary any of these Terms and Conditions without the consent of any third party, and accordingly section 2(1) of the 1999 Act does not apply.
19.6 Except as provided in clause 19.3, a person who is not a party to these Terms and Conditions has no right under the 1999 Act to rely upon or enforce any of these Terms and Conditions.
19.7 Any Charges agreed with the Supplier are commercially confidential and the Customer may not disclose Charges to any third party without the prior written consent of the Supplier, except where disclosure is required by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, the Customer gives the Supplier as much notice of such disclosure as possible and, where notice of disclosure if not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the Supplier in relation to the content of such disclosure.
19.8 The Supplier may update or amend any of these Terms and Conditions from time to time. The Supplier and Customer is bound in respect of any particular visit, delivery or entry to the Port Premises or provision of a Service by the Terms and Conditions published and in force at the time and date on which that visit, delivery, entry or provision of Service is made.
20. Bribery and Corruption
20.1 The Customer represents and warrants that it and its agents, directors, employees, officers and sub-contractors will comply with all Applicable Laws relating to antibribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Regulations”) and will not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 and the Customer represents and warrants that it has and will maintain in place its own policies and procedures, including “adequate procedures” under the Bribery Act 2010, to ensure compliance with the Relevant Regulations.
21.1 Subject to any express provisions set out above, where any notice is required to be given or may be given under these Terms and Conditions, such notice must be given:
- 21.1.1 in respect of the Supplier, in Writing to the Manager:
The Manager, Marchwood Port, Southampton, Hampshire, SO40 4ZG.
- 21.1.2 in respect of the Customer to the registered office of the Customer or the branch or agency office of the Customer through which the Customer has dealt with the Supplier in respect of the provision of the Services.