ACE Lojistik Hizmetleri A.S (ACE) a logistics and warehousing company registered in Turkey since 1992, with its head office at Muallimkoy Cad. No:34 41400 Gebze/Kocaeli Turkey. ACE has own entities as ACE Warehousing and Logistics Co. Ltd in Koahsiung, Taiwan and ACE Warehousing and Logistics (Shanghai) Ltd. In Shanghai, PRC.
These terms and conditions of service constitute a legally binding contract between the ACE and ACE’s all subsidiaries and the customer and may be revised or updated by ACE at any time without notice. The terms will apply to all dealings between you and us. The current version of these terms and conditions is being published on our website at any time.
1. APPLICABILITY OF THE WAREHOUSING CONDITIONS
1.1. Part I of the Warehousing Conditions (the “Warehousing Conditions”) applies to and is deemed to be incorporated into the Agreement when such Agreement is ACE or a Subsidiaries and its Customers (the “Customer”).
1.2. Notwithstanding anything set forth herein or in any law to the contrary, and to the extent permitted by law, the Warehousing Conditions take precedence over any law.
1.3. The Warehousing Conditions, together with the Agreement, govern all transactions or business undertaken between the applicable ACE entity and the Customer.
1.4. Part II of the Warehousing Conditions will apply to and be deemed to be incorporated into the agreement between ACE and the LME Warrant Holder; provided that the LME Warrant will state that the Warehousing Conditions are applicable. Neither the Customer nor the LME Warrant Holder can refer to or rely on any enactment, legislation, rules or regulation whatsoever in so far as they are inconsistent with the Warehousing Conditions.
2. DEFINITIONS AND INTERPRETATION
2.1. In the Warehousing Conditions, the following words and expressions will have the meanings respectively assigned to them:-
“Agreement”
means any agreement, whether written or oral, by which ACE offers and the Customer accepts the provision of the Services, and will include a written contract and/or correspondence by fax and/or email between ACE and the Customer.
“Business Day”
means a day other than a public holiday when commercial banks are open for commercial business (a) in the location of the warehouse specified in a Warehouse Receipt, Warehouse Warrant or LME Warrant or (b) if no such document has been issued, in Turkey.
“Charges”
means the fees payable to ACE by the Customer for the provision of the Services.
“Customer”
means a Person with whom ACE has agreed to provide Services, or for whom ACE holds the Goods in custody, for which no LME Warrant, Warehouse Warrant or Warehouse Receipt is in circulation and also includes a Person to whom ACE has issued or with whom ACE has agreed to issue a Warehouse Receipt, Warehouse Warrant, LME Warrant, delivery order and/or release instructions for similar purposes in respect of such Goods and/or the endorsee pursuant to a valid endorsement of a Warehouse Warrant.
“Goods”
means the goods to which the Warehouse Receipt, Warehouse Warrant or the LME Warrant (as the case may be) refers.
“ACE”
means ACE Lojistik Hizmetleri A.S or its Subsidiaries;
“Last LME warrant holder known to ACE”/ “Last known LME warrant holder”
will mean a person to whom the LME Warrant has been issued or such person who at the most recent date makes a written request to ACE to be regarded as the LME warrant holder provided, that ACE will be entitled, but not obliged, to regard any other person as such if it has reason to assume that such other person is the last LME warrant holder.
“LME Warrant”
means a transferable numbered, stamped and signed receipt, described in its heading as a London Metal Exchange warrant and on which it is certified that the holder is entitled to receive a specific quantity of goods of a specific kind and which is and will be construed to be a document of title.
“LME Warrant Holder”
means a person who makes himself known as the holder of a LME Warrant to
ACE by producing the LME Warrant.
“Person”
includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), or government or governmental entity or organisation.
“Services”
means all services relating to the receipt, storage and release of the Goods and arrangement related thereto that are provided or to be provided by ACE including the provision of advice or information whatsoever.
“Subsidiary”
means an entity providing Services which is controlled directly or indirectly by the stated entity. For this purposes, “control” of any entity or person means ownership of a majority of the shares of the entity.
“Taxes”
means all taxes, duties, levies and other similar charges (and any related interest and penalties) howsoever, designated or imposed relating to the Goods or the Services.
“Warehouse Receipt”
means a non-negotiable, non-transferable warehouse receipt issued or to be issued by ACE to the Customer upon receipt of the Goods, and which is not and will not be construed to be a document of title.
“Warehouse Warrant”
means a numbered, signed document issued or to be issued by ACE to a Customer confirming receipt and right to delivery of Goods and described in its heading as a Warehouse Warrant, which is only capable of transfer to a third party party in accordance with the terms and conditions therein and these Warehousing Conditions.
“Working Hours”
means 0830hrs to 1730hrs or other applicable local time advised by ACE on a Business Day.
2.2. Unless the context otherwise requires:
2.2.1. words in the singular include the plural and vice versa;
2.2.2. a reference to one gender includes any other gender;
2.2.3. headings are for reference only;
2.2.4. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
2.2.5. a reference to writing or written includes fax and e-mail.
2.3. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.4. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.5. The Schedules form part of these Warehousing Conditions and shall have effect as if set out in full in the body of these Warehousing Conditions. Any reference to these Warehousing Conditions includes the Schedules.
2.6. ACE may amend, vary or supplement the Warehousing Conditions at any time by giving notice thereof to the Customer. Any such amendment, variation or supplement shall take effect as from the date specified in the notice or in the absence of a specified date, as from the date of such notice.
1. INCORPORATION OF THE PART I OF THE WAREHOUSING CONDITIONS
1.1. Part I of the Warehousing Conditions applies to the Agreement and is deemed to be incorporated in and form part of the Agreement. The Customer is deemed to have received Part I of the Warehousing Conditions provided ACE has sent or delivered Part I of the Warehousing Conditions to the Customer or that the Conditions have been drawn to the attention of or made reference to and/or otherwise made available to the Customer, including by internet access, regardless of whether the Customer expressly acknowledges receipt of Part I of the Warehousing Conditions.
1.2. Any other terms and conditions or forms used by the Customer will not be applicable to or be deemed incorporated into the Agreement unless the terms and conditions or forms have been expressly accepted in writing by ACE.
1.3. Any variation to Part I of the Warehousing Conditions (including any special terms and conditions agreed between the parties) will be inapplicable unless agreed to in writing by ACE. Part I of the Warehousing Conditions expressly limits the Customer to acceptance of the Warehousing Conditions. Any additional or different terms or conditions, whether in a proposal, purchase order, acknowledgement, acceptance or otherwise, are rejected and will not apply unless expressly assented to in writing by an authorized representative of ACE, notwithstanding any contrary language proposed by Customer that any act or failure to act by ACE, constitutes acceptance of such different or additional terms or conditions.
1.4. If any legislation is compulsorily applicable to any business or Services undertaken by ACE, Part I of the Warehousing Conditions will, as regards such business or Services, be read as subject to such legislation. Notwithstanding the above, nothing in Part I of the Warehousing Conditions will be construed as a surrender by ACE of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of Part I of the Warehousing Conditions will to any extent be repugnant to such legislation, such part of Part I of the Warehousing Conditions will as regards such business or Services be void to that extent but no further.
2. OWNER OF GOODS, TITLE AND CLAIMS TO GOODS
2.1. The Customer expressly warrants:
2.1.1. they are the owners of the Goods to which the Agreement relates. All rights of ownership and title over the Goods will be established and verified by the Customer and it is acknowledged and understood that ACE has no responsibility or liability with respect to any conflicting claims arising out of a dispute contesting rights of ownership or title to the Goods.
2.1.2. it is authorized to accept and accepts Part I of the Warehousing Conditions not only for themselves but also as agents for and on behalf of all other Persons who are or may thereafter become interested in the Goods.
2.1.3. It is not contracting or dealing as a consumer when entering into an Agreement.
Warehouse Receipt
2.2. Transfer of title to the Goods or part thereof by the Customer to a third party in respect of which a Warehouse Receipt has been issued will not be recognized by ACE unless all moneys owing by the Customer to ACE and all claims which ACE may have against the Customer will have been paid and/or settled. Any transfer of title to the Goods or part thereof will be binding on ACE only if: (a) ACE has confirmed in writing to the third party to whom transfer of title is being made; and (b) a new agreement has been made between ACE and such third party, and (c) the original Warehouse Receipt has been delivered back to ACE by the Customer for cancellation, at which point, the Agreement with the original Customer in respect of the Goods or part thereof which is transferred will be deemed to be terminated.
2.3. The Warehouse Receipt is not and will not be construed to be a document of title. Subject to Clause 2.4 below, ACE will not recognize any other party as a party entitled to the Goods by reason only of any transfer and/or endorsement of or on a Warehouse Receipt relating to such Goods.
2.4. The Customer may not transfer, assign or otherwise dispose of the Warehouse Receipt or any right or obligation in connection therewith without the prior written consent of ACE.
2.5. ACE will not proceed with any partial, full or final release of Goods under any Warehouse Receipt unless and until the original Warehouse Receipt is delivered to ACE.
Warehouse Warrant
2.6. Transfer of title to the Goods or part thereof by the Customer to a third party in respect of which a Warehouse Warrant has been issued, will not be recognized by ACE unless all moneys owing by the Customer to ACE and all claims which ACE may have against the Customer will have been paid and/or settled. Any transfer of title to the Goods or part thereof (an “endorsement”) will be binding on ACE only if it has been done in accordance with these Warehousing Conditions and the terms and conditions of the Warehouse Warrant (including the Additional Conditions therein). In particular, and without limitation, (i) each Authorized Holder (as defined in the Warehouse Warrant) may only endorse it once; and (ii) the maximum number of endorsements permitted shall be as stated in the Warehouse Warrant. If further endorsements are required in excess of the maximum permitted as stated in the Warehouse Warrant, the Warehouse Warrant must be sent to ACE for reissuance.
2.7. ACE will not recognize any transfer and/or endorsement of or on a Warehouse Warrant relating to such Goods except for the maximum permitted endorsements specified in the Warehouse Warrant. Upon such endorsement, the endorser and the endorsee shall promptly notify ACE of the endorsement. Such notification shall include (i) the date of the endorsement, (ii) the warrant number and (iii) the name and contact details of the endorsee. An endorsement shall only be effective as between endorser and endorsee upon receipt of such notification by ACE.
2.8. Save as provided in clauses 2.6 and 2.7, the Customer may not transfer, assign or otherwise dispose of the Warehouse Warrant or any right or obligation in connection therewith.
2.9. ACE will not proceed with any partial, full or final release of Goods under any Warehouse Warrant unless and until the original Warehouse Warrant is delivered to ACE.
3. INSTRUCTIONS, TENDERS, ETC.
3.1. All agreements, tenders, instructions relating to the Services or the Goods will be recorded in writing. Verbal or telephonic communications will be binding on ACE only if such communication is immediately followed by a written confirmation from ACE. Only ACE may plead the absence of a written confirmation if a dispute arises.
3.2. All tendering of the Goods and instructions regarding storage, custody and handling of the Goods and arrangement related thereto must be accompanied by an accurate statement including the description, content, measurement, nature, quality, properties, quantity, origin, serial numbers, marks, value, number of packages and gross weight of the Goods and all other particulars and such other terms, which if ACE had been aware of, ACE would not or might not have entered into the Agreement or would or might have entered into the Agreement on different terms and conditions. The Customer will separately state the weight of any package which exceeds 3000 kilo grammes. ACE shall be entitled to increase its Charges should incorrect, inaccurate or misleading information be provided by the Customer in respect of the Goods.
4. METHODS AND PROCEDURE
4.1. Notwithstanding express written instructions from the Customer, ACE will be entitled at its sole and absolute discretion to decide on the means and procedure to be followed in the handling, storing and custody of the Goods. ACE will be at liberty to depart from the Customer’s instructions if, in the opinion of ACE, it is at any stage necessary or desirable or in the Customer’s interest to do so.
5. SUB-CONTRACTING
5.1. ACE will be entitled to sub-contract its obligations to perform the Services, in whole or in part, on such terms and conditions as ACE deems appropriate, in its sole discretion.
5.2. Where the storage or other Services in respect of the Goods will be sub-contracted to third parties by ACE, ACE reserves the right to appoint such sub-contractor to provide the service on behalf of ACE, and the Customer will bear all risk relating thereto.
6. ACCURACY OF DESCRIPTION OF THE GOODS AND QUALITY OF THE GOODS
6.1. The Customer warrants and is bound by, the accuracy of all descriptions, particulars and/or information furnished to ACE in respect of the Goods. The Customer will be liable to and shall indemnify ACE and/or any third parties for any injury, loss or damage whatsoever arising from the incorrect and/or misleading and/or incomplete packaging, description, particulars, indication or information in respect of the Goods including inaccuracies or omissions in the leading marks, numbers, quantity, weight, gauge, measurement, properties, contents, nature, origin, quality or value of the Goods as well as for any damage arising from defects in the Goods and/or packing, which have not been notified to ACE before the parties enter into an Agreement.
The description and/or specification and/or particulars of the Goods and/or in respect of the packages as stated on the face of any Warehouse Receipt or Warehouse Warrant, delivery order and/or release instructions will be treated as the description, specifications and/or particulars provided by the Customer. ACE does not, by the issuance of a Warehouse Receipt, Warehouse Warrant or any other document, agree that such description, specification and/or particulars are correct or accurate, or admit the existence, good order and condition of the Goods described therein, or of the contents of any package or other shipping unit, subject to the explicit provisions of any applicable statute. ACE will be entitled to rely on such particulars as to the contents, measurements, nature, quality, weight, number, serial numbers, marks, value in respect of the Goods being unknown to it, even if the Goods should have been counted, weighed or measured in the presence of any of ACE's agents or servants and even if such agents or servants could have known the contents, weight, measurement, nature, quality or other particulars of the Goods.
6.2. ACE will not be considered to be and will not act as an expert in relation to the nature or quality of the Goods and will not be required or be obliged to provide any notification to any party whatsoever in relation to the state, nature or quality of the Goods.
7. WEIGHING / MEASURING OF THE GOODS
7.1. ACE will not be obliged to weigh or measure the Goods in storage if no instructions to carry out weighing or measurement of the Goods are given to, and accepted by, ACE, as evidenced in writing or by performance. Notwithstanding the foregoing, ACE will be at liberty to effect weighing and/or measurement of the Goods in order to ascertain whether the weight and/or measurement of the Goods comply with the specifications of the Goods received from the Customer. In the event that the weight and/or measurement of the Goods determined by ACE differ from those specified by the Customer, the cost of carrying out the weighing and/or measurement of the Goods by ACE will be borne by the Customer.
7.2. Without prejudice to the provisions of Clause 18 (“Liability for Loss of or Damage to the Goods”), ACE will be liable for any direct loss and/or damage to the Goods which may arise from the weighing and/or measurements of the Goods but only if such weighing or measurements have been carried out by ACE on the Customer’s instructions.
7.3. Packages may be opened for examination of the contents thereof at the Customer’s request, but ACE will at all times be entitled, but not obliged, to do so if it suspects that the contents have been wrongly described by the Customer. Should the examination reveal that the contents differ from those described, the cost of the examination will be borne by the Customer.
8. DELIVERY OF THE GOODS TO ACE
8.1. Delivery to and receipt by ACE of the Goods will be effected by the Customer handing over the Goods to ACE and ACE taking over the Goods at the place of storage. If the Customer instructs ACE to take delivery of Goods but the Goods fail to arrive for any reason whatsoever, the Customer undertakes to pay ACE on an indemnity basis for all costs and expenses incurred by ACE in taking any steps in accordance with the Customer’s instructions.
8.2. Unless otherwise stated, the Customer warrants that the Goods will be in good condition, and if packed, be properly packed when delivered to ACE. If the Goods appear to be in a damaged or defective condition upon delivery to ACE, ACE will be entitled but not obliged to take such steps as may be necessary to protect the Customer’s interest against the carrier or any other party at the Customer’s sole risk and expense. The Customer will not be entitled to question the manner in which ACE has carried out such steps as aforesaid to protect the Customer’s interest. ACE will promptly notify the Customer of any action taken, but failure to notify the Customer will not give the Customer any right of claim against ACE.
9. COMMENCEMENT OF SERVICES AND SPEED OF CARRYING OUT THE SERVICES
9.1. Unless otherwise agreed upon or unless prevented by special circumstances, ACE will commence executing accepted orders for storage or delivery of the Goods, if possible, not later than the Business Day following the Business Day on which it has accepted the order or on which it has received the necessary documents (including but not limited to bills of lading, delivery orders, official documents), whichever is later. If the necessary orders are accepted and/or the necessary documents are received after 1500 hours local time on a Business Day, the next Business Day will count as the day of acceptance of such orders and/or receipt of such documents.
9.2. ACE will determine the rate of speed at which orders for storage or delivery of Goods will be executed. ACE will note the instructions of the Customer in this respect, but will not be liable for any expenses, loss or damage incurred or suffered for and on behalf of or by the Customer should the rate of speed at which the order is executed be slower than that required or requested by the Customer. Time is not of the essence in performance of the Services by ACE.
10. TIMES FOR DELIVERY AND COLLECTIONS OF THE GOODS
10.1. Goods will be delivered to and collected from the place of storage during Working Hours and ACE will not be obliged to provide or perform any Services outside Working Hours. If the Customer requires any Services to be executed outside Working Hours, ACE will be at liberty to decide whether to do so or not. The Customer will bear any extra charges which may be incurred as may be notified by ACE for any Services provided outside of Working Hours.
10.2. In the event that the Customer instructs ACE that Goods for storage in a certain quantity will be delivered to ACE at a certain time, or that Goods for re-delivery in a certain quantity will be collected at a certain time and ACE arranges for labor and equipment to carry out such instructions of the Customer, the Customer will reimburse ACE for any and all costs and expenses incurred by ACE if the Customer fails to deliver or collect the Goods or any part thereof or fails to deliver or collect the Goods or part thereof at the time stipulated by the Customer.
11. PLACE OF STORAGE OF THE GOODS
11.1. Unless otherwise agreed upon in writing by ACE, ACE will be at liberty to decide where the Goods are stored. ACE will at any time be entitled to transfer the Goods to another storage place. The cost of any transfer and the risk of such transfer will be borne by ACE, unless the transfer has been effected by ACE in its sole discretion in the interest of protecting the Goods, or by reason of circumstances beyond ACE’s control in which case, such transfer will be effected at the sole and absolute discretion of ACE and at the sole risk and expenses of the Customer. ACE will notify the Customer of any transfer of the Goods to any other storage place, but failure to notify the Customer will not give the latter any right of claim against ACE.
12. ADMITTANCE TO PLACE OF STORAGE AND ISSUANCE OF DOCUMENTS
12.1. Upon reasonable prior notice, ACE will be obliged to admit the Customer and/or any Persons authorized by the Customer to the place of storage of the Goods, subject to the compliance by the Customer or by such Person(s) authorized by the Customer with all formalities prescribed by the relevant authorities.
12.2. The following conditions will be applicable to Persons granted admittance to the place of storage by ACE.
12.2.1. All Persons visiting the place of storage including the personnel of vessels and vehicles reporting to the warehouse, will observe and fully comply with ACE’s regulations and procedures;
12.2.2. Admittance will be granted only during Working Hours and with the attendance of ACE’s employees;
12.2.3. All expenses incurred in relation to visit will be paid to ACE by the Customer;
12.2.4. The Customer will be liable for any damage caused directly or indirectly by any Persons who are granted admittance to the place of storage including but not limited to any damage caused to the place of storage, the Goods and/or other goods stored at the place of storage.
12.3. Upon receipt of the Goods by ACE, ACE shall issue either a Warehouse Receipt or Warehouse Warrant to the Customer.
12.4. A Customer shall be entitled to request the issuance of a Warehouse Warrant in respect of Goods at any time whilst the Goods are in the custody of ACE. ACE shall be entitled, in its sole discretion, to refuse to issue a Warehouse Warrant and, in any event, shall not be obliged to issue a Warehouse Warrant until the Customer presents the applicable original Warehouse Receipt for nullification.
12.5. A Customer shall have the right to transfer the Warehouse Warrant to a Person by endorsement on the original Warehouse Warrant as provided in clauses 2.6 and 2.7. Any attempt to endorse the Warehouse Warrant beyond the permitted number of endorsements shall render it null and void.
Upon endorsement and subject to (a) ACE receiving prompt notice in writing of the endorsement as required by clause 2.7, (b) ACE being satisfied as to the authenticity and validity of the Warehouse Warrant and the endorsement, and (c) ACE’s right of lien, the endorsee shall have the right to delivery of the Goods covered by the Warehouse Warrant by presentation of the original Warehouse Warrant. Notwithstanding the above, the endorser remains liable for any discrepancy between the Goods and the description of the Goods appearing on the Warehouse Warrant.
12.6. A Warehouse Warrant shall be valid for a period of 3 years only from the date of issue. On the expiry of such period, the Customer (or endorsee) may request the replacement of the expired Warehouse Warrant. ACE shall be entitled in its sole discretion to issue a new Warehouse Warrant or a Warehouse Receipt in respect of the Goods but may refuse to issue a new Warehouse Warrant or Warehouse Receipt unless all monies due and owing to ACE have been paid in full.
13. SERVICES
13.1. ACE will carry out such Services in respect of the Goods as may be required by the Customer, that are accepted by ACE, as evidenced in writing or by performance, including sampling, handling, servicing, packing, re-packing, bundling, re-bundling, piling, re-piling, lotting, weighing, as well as re-delivery of the Goods at the agreed Charges and arranging of the aforementioned as agreed, based on Part I of the Warehousing Conditions. Any other work which ACE does not wish to undertake may, after the prior approval of ACE, be executed by or on behalf of the Customer, subject to any conditions which may be laid down by ACE, under the supervision of ACE and Customer will pay any and all costs and expenses incurred by ACE. ACE will not be liable for any loss, damage or expenses incurred or suffered by the Customer in carrying out such work.
13.2. Notwithstanding any other provisions of Part I of the Warehousing Conditions, ACE will be entitled, without providing any reasons whatsoever, to refuse to accept any instructions which may be given by the Customer in relation to the provision of the Services.
14. REMOVAL OF THE GOODS BY THE CUSTOMER
14.1. Upon payment of all sums whatsoever owing to ACE, presentation of the applicable original Warehouse Receipt or Warehouse Warrant and subject to the provisions of Part I of the Warehousing Conditions, the Customer may at any time remove the Goods from the custody of ACE. The Charges, including warehouse rent plus any increases therein and any other applicable costs, and, if the Goods have been insured through ACE, the insurance premium and cost plus any increases therein will always be charged on the basis of a full month (that is, a part of a month will count as a full month).
14.2. Notwithstanding the aforesaid, ACE will have the right, at any time, to require the removal of the Goods received for storage prior to the expiration of the storage period as agreed, without having to provide the Customer any period of notice, if in the discretion of ACE there is an urgent reason to do so. An urgent reason will, inter alia, be deemed to exist if:
14.2.1. The Customer fails to comply with one or more provisions of Part I of the Warehousing Conditions;
14.2.2. It appears due to the presence of the Goods, loss and/or damage to other goods, to the storage place or to equipment or harm or injury to Person(s) is to be feared;
14.2.3. If the Goods are perishable or liable to inherent changes which in ACE’s opinion would result in a decrease in value of the Goods and the Customer has failed to provide instructions for the prevention of such events.
14.3. The Customer will remain liable for payment of the Charges, including warehouse rent plus any increases therein up to and including the date of the removal of the Goods.
15. SALE OR DISPOSAL OF THE GOODS
15.1. Without prejudice to the provisions of Clause 14 “Removal of the Goods by the Customer” of Part I of the Warehousing Conditions, ACE will be entitled to sell the Goods:
15.1.1. If the Customer fails to remove the Goods given to ACE for storage when requested by ACE to do so;
15.1.2. If the Customer fails to pay any amount owed by it to ACE, without prejudice to ACE’s right to satisfy its lien.
15.2. ACE will be entitled to sell or dispose of all non-perishable Goods upon giving 14 days’ notice in writing to the Customer. The aforesaid 14 days’ notice in writing will not apply in respect of perishable Goods and ACE will be entitled to exercise such rights of sale at any time at ACE’s sole and absolute discretion. The sale will be effected by auction or private contract or otherwise at the sole and absolute discretion of ACE.
15.3. All expenses connected with the sale and any other amounts owed by the Customer to ACE will be recoverable from the proceeds of sale of the Goods.
16. DAMAGE OR DESTRUCTION OF THE GOODS
16.1. In the event of damage to the Goods while the Goods are in the custody of ACE, whether resulting from any of the causes set forth in Clause 18.1 hereof or other causes which are covered by insurance, regardless of whether the insurance was effected through ACE or not, if the assistance of ACE for assessment of the damage is desirable or necessary, such assistance will be rendered by ACE at its sole and absolute discretion and Customer will pay ACE any and all costs and expenses incurred by ACE together with such remuneration as is fixed by ACE for its assistance and services. ACE may make such assistance conditional upon payment of all amounts that are due to ACE by the Customer.
16.2. In the event that the Goods are destroyed while the Goods are in the custody of ACE whether resulting from any of the causes set forth in Clause 18.1 hereof or otherwise, the date of destruction of the Goods will count as the date of delivery to the Customer and the Charges, including warehouse rent plus any increases therein and any other applicable costs, charged in full months, together with insurance premium and cost (if the goods are insured through ACE), plus any increases therein, will be calculated up to and including the date of destruction and will be due and payable forthwith by the Customer.
17. HAZARDOUS AND OTHER GOODS
17.1. The Customer will notify ACE in writing before delivery to ACE of any Goods of an explosive, flammable, corrosive, noxious or dangerous nature or any Goods which may possibly cause damage or be detrimental to the warehouse or to other goods stored in the warehouse, or which are classified as dangerous or hazardous goods by any laws or regulations. The packages containing such Goods will be clearly and indelibly marked to show the hazardous nature of their contents and the Customer will indemnify ACE from and against any and all fines, penalties, expenses, loss or damages suffered or incurred by ACE by reason of the Customer’s failure to so declare and mark the nature of such Goods. The attention of the Customer is directed to the laws and regulations imposing criminal or civil penalties for failure to properly declare, mark and package such Goods. If such Goods are accepted under arrangement previously made in writing between the parties, they may nevertheless be destroyed or otherwise dealt with on account of risk to other goods, property, life or health.
17.2. Should any Customer nevertheless deliver any such Goods to ACE or cause ACE to handle or deal with any such Goods otherwise than under special arrangements previously made in writing, the Customer will be liable for all expenses, loss or damage whatsoever caused by or to or in connection with the Goods however arising and the Customer will indemnify ACE from and against all penalties, claims, damages, costs (including all legal costs on a full indemnity basis) and expenses whatsoever arising in connection therewith, and the Goods may be destroyed or otherwise dealt with at the Customer’s risk and expense at the sole discretion of ACE or any other Person in whose custody they may be at the relevant time if it is feared that failure to take such action might cause loss and/or damage to the Goods themselves, to other goods, to the warehouse or equipment or may cause harm or injury to any Person.
17.3. The expression “goods likely to cause damage” includes goods likely to harbor or encourage vermin or other pests. ACE will promptly notify the Customer of the measures taken, but failure to notify the Customer will not give the latter any right of claim against ACE. Without prejudice to the provisions of the preceding paragraph, the Customer will indemnify ACE from and against any claims of third parties on account of damage caused by the Customer’s Goods to goods of third parties.
17.4. 2 ACE will not be liable to Customer or any other Persons, or have any obligation to reimburse Customer or any other Persons, for any loss or damage to the Goods occurring at any time by reason or by means of fire unless such fire will have been caused by the gross negligence or willful misconduct of ACE.
18. LIABILITY FOR LOSS OF OR DAMAGE TO THE GOODS
18.1. ACE will not be liable for any loss, damage and/or deterioration of the Goods unless such loss, damage or deterioration is proven to have been caused by the gross negligence or willful misconduct of ACE, provided that ACE will not be liable for loss or damage or deterioration of the Goods, where, for example, such loss or damage or deterioration occurs in circumstances including:
18.1.1. Any damage and/or loss through theft or burglary;
18.1.2. Any loss, damage and/or deterioration of any Goods stored in the open, or which can only be stored in the open, or which ACE customarily stores in the open;
18.1.3. Any loss, damage and/or deterioration occurring while the Goods are in the custody of ACE or occurring before receipt by ACE of the Goods and due to the following causes, regardless of their origin:
18.1.3.1. the natural quality of the Goods, changes in quality or character, inherent vice, decay, drying out, powdering, heat, heating, melting, staining, sweating, fermenting, freezing, rusting, mildew, mould, dampness, dust, oil, dis-coloration, evaporation, smells or stains from or contact with other goods or fuel, putrefaction, water of any kind, rain or spray, effects of climate, drainage, leakage, wastage, loss of weight, breakage, splitting, bending, chaffing, shrinkage, hook holes, rats, mice, insects and other vermin, explosion of any of the Goods whether received with or without disclosure of its nature, insufficiency, soiling, injury to, distortion, pressing or bursting of packages, adherence or coverings, failure to protect the Goods or inaccuracy, obliteration or errors in or insufficiency or absence of marks, numbers, address or description of the Goods;
18.1.3.2. any loss, damage or deterioration of the Goods caused directly or indirectly by existing or threatened war, declared, or undeclared, hostilities, warlike operations, civil war or civil commotion, terrorism, revolution or the operations of international law, governmental decree, requisitioning, legislation or expropriation, confiscation orders, court orders, injunctions or third party claims, strikes, lockout, sabotage or power breakdown;
18.1.3.3. any damage, loss or deterioration of the Goods caused directly or indirectly by fire, smoke, explosion, water used for extinguishing fires, burst water piping, flood, tempest, earthquake or any other extraneous calamity or Acts of God.
18.1.4. Errors in any delivery orders, confirmations, receipts, warrants, Warehouse Receipts, Warehouse Warrants, LME Warrants or any other document;
18.1.5. Improper or inadequate packing or protection of the Goods’
18.1.6. All other causes which are beyond the control of ACE.
19. NO WARRANTY; NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
19.1. ACE makes no representation or warranty with respect to the goods or services.
19.2. Limitation of liability. Not-withstanding anything set forth herein, in any warehouse receipt, warehouse warrant or in any other document to the contrary, to the fullest extent permitted by law:
19.2.1. ACE shall not be liable to the customer or any other person for any consequential, indirect, exemplary, incidental, or special damage, cover damages or lost profits, diminution in value, or other damages whatsoever relating to or resulting from the transactions contemplated by the agreement and/or these warehousing conditions, regardless of whether the liability resulted from any general or particular requirement or need of which ACE knew or should have known and regardless of whether the claim in question is based on warranty, contract, negligence, strict liability, tort or otherwise. in the event that any term of the agreement or of these warehousing conditions is found unconscionable or unenforceable for any reason, or any exclusive remedy fails of its essential purpose, this provision of this waiver shall nevertheless continue in full force and effect.
19.2.2. In the event ACE is proven to be liable to customer for any amounts, in each case, regardless of whether the claim giving rise to such amount(s) is based on warranty, contract, negligence, strict liability, tort or otherwise, the maximum aggregate liability of ACE arising out of or relating to the agreement or these warehousing conditions or the transactions contemplated hereby shall not exceed the lesser of (a) the actual value of the damaged or lost goods (as evidenced by the relevant invoice(s) relating to the goods), (b) the aggregate charges paid under the agreement, or (c) USD 50.000.
20. INSURANCES
20.1. ACE will not be obliged to take out any insurance on the Goods for any risk whatsoever. In the event that the Customer requests the assistance of ACE to take out any insurance on the Goods for and on behalf of the Customer, ACE may, upon the written request by the Customer and at its sole and absolute discretion, take out insurances on the Goods against such risks as may be notified by the Customer. ACE will not incur any liability whatsoever to Customer or to any other Persons in the event it elects not to procure any such insurance. ACE will not be responsible as regards to the choice of the insurer and/or its ability to pay under the insurances, nor will ACE be liable for any inability to place insurances requested by the Customer by reason of an insurer’s requirement which ACE considers, in its sole opinion, to be unreasonable. All insurances on the Goods will be taken out at the Customer’s expense and risk and all insurances will be subject to the usual exceptions and conditions of the policies of the relevant insurance company or underwriter. By requesting ACE to effect insurance, the Customer authorises ACE to make all arrangements with the insurer at ACE’s sole discretion, including arrangements regarding the conditions of insurance and settlement of claims in respect of any damage. The insured value will be the value stated in writing by the Customer or ACE’s estimate of the current value of the Goods. The risks required to be covered will be clearly stated in writing by the Customer to ACE. A mere statement by the Customer of the value is not sufficient and ACE will not be obliged to take out any insurance on the Goods where it is not sufficiently informed of the risks to be covered.
20.2. When acting as authorised agent by virtue of Clause 20.1 hereof, ACE will be entitled to collect the amount of any claims paid out by any insurer. ACE will be entitled to deduct any amounts that are due and payable by the Customer to ACE from any amounts received by the insurer before paying the balance to the Customer.
20.3. ACE will not be liable for any loss arising from the failure or refusal by any insurer to pay in full or in part any amounts under any insurance as a result of any circumstance for which ACE cannot be held liable regardless of the manner in which the insurance was effected by ACE and notwithstanding that ACE may have charged the Customer any arrangement fees in taking out such insurances on behalf and/or at the request of the Customer.
20.4. The Customer is obliged to take out and maintain adequate insurance covering damage that can be caused by the Goods. Upon request, the Customer shall make the insurance policy available to ACE for inspection and provide copies.
21. CHARGES, RATES AND PAYMENT TERMS
21.1. The Charges including warehouse rent plus increases therein, if any, and all other amounts due and owing to ACE by the Customer on any account whatsoever, including but not limited to insurance premium and cost plus increases therein if any (if the Goods have been insured through ACE), rent, disbursements, remunerations for storage and delivery, outlays and charges for work done or to be done, the cost of any clearance work or similar activities during or after a fire and all extraordinary expenses, extra wages whatsoever will be payable by the Customer immediately upon issuance by ACE of the invoice for such amounts. Notwithstanding the above, interest shall not accrue on the invoiced amount until 14 days after issuance of such invoice.
21.2. The Charges and all other applicable costs and all verbal or written agreements between ACE and the Customer regarding rates and remunerations for work will be based on the wages and charges imposed by the relevant authorities (where applicable) on the services rendered by ACE in force at the time the Agreement was concluded. In the event that there is an increase in the said wages and charges imposed by such authorities, the rates and remunerations which have been agreed upon will be adjusted accordingly and become effective immediately.
21.3. Unless otherwise expressly agreed upon, the agreed rates for storage will be based on the customary method of stacking the Goods. If at the Customer’s request, or owing to the condition of the Goods, the customary method is departed from, an increase in rates will be charged in proportion to the additional floor space occupied as compared with that for the normal stacking of the Goods.
21.4. All payments by the Customer will be made without any deduction, set-off, counterclaim or rebate whatsoever and will be deemed in the first place, to the extent permitted by law, to have been made on account of non-preferential debts, regardless of any instructions which may be given by the Customer to ACE at the time of payment.
21.5. In the event that the Customer fails to pay any amounts which are due and payable hereunder or immediately upon notification thereof by ACE, interest will be payable on such amounts at the rate of 3 month US Dollar LIBOR rate + 5% per annum or such other rate as may be agreed between ACE and the Customer.
21.6. In the event that ACE resorts to any legal proceedings or other means for the recovery of any amounts due and payable by the Customer hereunder (the “Indebtedness”), the Customer will, in addition to the Indebtedness and interest payable under Clause 21.5, be liable to ACE for a further amount equivalent to 10% of the Indebtedness on account of all management time and clerical expenses which may be incurred by ACE in resorting to such proceedings or other means.
21.7. ACE may at any time require payment of monies on account or pre-payment of their expenses or Charges and such expenses or Charges will be due and payable by the Customer forthwith. In the event that any sum is not paid when required, and without prejudice to any other rights ACE may have at law or under the Warehousing Conditions, ACE may refuse or suspend performance of the Services.
21.8. The Customer shall bear and pay all Taxes relating to the Goods or Services. If the Customer is required by applicable law to deduct or withhold any sum as or on account of Taxes, the amount payable by the Customer shall be increased by such amount as is necessary to ensure that ACE receives a net amount equal to that which it would have received in the absence of such deduction or withholding.
22. LIEN
22.1. All Goods received for storage by ACE will be held by it subject to a general lien and right of retention for money due to ACE whether in respect of the storage of such Goods or other goods or for other charges or costs payable by the Customer and/or the owner of the Goods, whether such lien and rights are afforded by law, Part I of the Warehousing Conditions or otherwise. If the general lien is not satisfied within fourteen (14) days from the day when the expenses become payable, the Goods may be sold by auction or otherwise at ACE’s sole discretion and at the expense of the Customer and the proceeds of sale will be applied to the satisfaction of the lien and expenses. Any balance of the proceeds from the sale of the Goods after the proceeds have been applied in or towards the satisfaction of such lien and expenses will be paid to the Customer. The lien and right of retention will also extend to any insurance claims collected on behalf of the Customer by ACE and as far as necessary, the right will be deemed to have been transferred to ACE for further security. Storage fees will be charged for the Goods detained under the lien.
22.2. The Customer agrees and acknowledges that the lien ranks in priority to any other right (security or otherwise) which it may give or have given to any other person in relation to the Goods.
23. TIME BAR
23.1. In no event will ACE be liable to the Customer or to any other Persons with respect to any loss, damage or decrease in quantity of the Goods or in general, on account of failure by ACE to comply with any of its obligations whatsoever or howsoever arising, unless (a) written notice thereof is given to ACE within two (2) months, and (b) suit is brought against ACE within twelve (12) months, from the date of the event or occurrence alleged to give rise to a cause of action against ACE. In relation to any loss, damage or decrease in quantity of the Goods in so far as ACE has not notified the Customer of such loss, damage or decrease in quantity, the said period of twelve (12) months will commence on the earlier of (i) the day after which ACE notifies the Customer of, or (ii) the Customer becoming aware of, such loss, damage or decrease in quantity.
24. GOVERNING LAW AND JURISDICTION
24.1. The Agreement will be governed by and will be construed in accordance with English law, unless otherwise provided in the Agreement or required compulsorily in applicable national law.
24.2. Unless otherwise provided in the Agreement, the Customer agrees that any claim, dispute or matter arising under or in connection with the Agreement or its enforceability, including, without limitation, any contractual claim, dispute or matter shall be discussed and resolved amicably between the parties, and if not resolved, the dispute shall be referred to and finally resolved by arbitration in London and the Customer irrevocably agrees to:
24.2.1. submit to the Arbitration Rules of the London Court of International Arbitration (“LCIA”) for the time being in force;
24.2.2. Consent to service of process by registered mail or in any other manner permitted by relevant law; and
24.2.3. Be bound by any award delivered by the arbitration in London where ACE may take proceedings in.
24.3. Without prejudice to the generality of Clause 24.2, in the event any applicable national law stipulate otherwise, causing the submission to Arbitration in London inapplicable or unenforceable, the Customer agrees that the legal action or proceedings will be brought in the competent court where ACE is domiciled.
25. INDEMNITY
25.1. customer covenants and agrees to indemnify, defend (with counsel acceptable to ace), save and hold harmless ace, its subsidiaries and affiliates, and their respective officers, directors, agents, employees, successors and assigns (collectively, the “indemnitees”), from and against any and all losses (as hereinafter defined) of whatsoever kind and nature, whether incurred by ace or alleged by others, in warranty, contract, negligence, strict liability, tort or otherwise, arising in whole or in part as a result of, or in connection with, any of the following: (i) any breach of any representation or warranty set forth in the agreement or part i of the warehousing conditions by customer, its directors, officers, employees, agents, subcontractors or parties on whose behalf customer is acting and entering into the agreement (collectively, the “customer parties”), (ii) negligence by any customer party, (iii) any defect of any kind in the goods, (iv) any act or omission of any customer party, (v) violation of any law by any customer party, (vi) an indemnitee following the instructions of any customer party or implementing such instructions, (vii) any servant, agent or subcontractor or any hauler, carrier, warehousemen, or other person or party whomsoever who may at any time be involved with the goods, (viii) any insufficiency of the packing of the goods, (ix) any and all claims by any person that its title to the goods are superior to that of the customer party, (x) arising under or pursuant to clause 7.1 above, (xi) inaccuracy of any descriptions, particulars and/or information concerning the goods that is furnished by a customer party or on its behalf, even if such inaccuracy is not due (whether in whole or in part) to any negligence or fault on the part of a customer, (xii) arising under or pursuant to clause 16.1 above, (xiii) failure by any customer party to pay any indebtedness, or (xiv) any injury to or death of persons or damage to property caused by or resulting from the goods and/or the action or inaction on the part of any customer party. as used herein “losses” means any and all liabilities, obligations, suits, claims, losses,
damages, judgments, awards, penalties, injuries, actions, costs, fees and expenses (including attorneys’ fees and disbursements and costs of investigation, litigation, alternative dispute resolution, settlement, judgment, interest and penalties).
25.2. the indemnification provided for herein is without prejudice to any other rights or remedies any indemnitee may have under any law. matters covered by the foregoing indemnity include:
25.2.1. damages for personal injury, disease or death
25.2.2. damages for injury to personal or real property;
25.2.3. natural resource damages;
25.2.4. any and all costs or recalls of such goods or products, including by way of example, but not of limitation, costs incurred in transportation, labor, removal, installation, fines, penalties and attorneys’ fees, and
25.2.5. all expenses, costs and fees incurred by any indemnitee as a result of any claim for indemnification hereunder.
25.3. to the extent permitted by law, if any customer party enters any premises owned, leased or controlled by any indemnitee, such customer party hereby waives and agrees to indemnify, defend and hold the indemnitees harmless from, any and all losses that any such customer party may have or incur as a result of their presence on such premises, whether or not arising out of any act or omission (whether negligent or not) of any indemnitee.
25.4. this indemnity shall survive the expiration, termination, or cancellation of the agreement.
26. MISCELLANEOUS
26.1. Customer is duly authorized to enter into the Agreement and Part I of the Warehousing Conditions and to perform its obligations under the Agreement and Part I of the Warehousing Conditions and possesses all licenses, permits, consents and approvals required by law to conduct all business which it conducts with respect to the Goods.
26.2. No course of prior dealings and no usage of trade will be relevant to supplement or explain any terms used in the Agreement or in Part I of the Warehousing Conditions. The Agreement and Part I of the Warehousing Conditions will be binding upon Customer and its successors and permitted assigns.
26.3. If any provision of the Agreement or Part I of the Warehousing Conditions, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, invalid, void or unenforceable, the remainder of the Agreement and Part I of the Warehousing Conditions shall continue in full force and effect and the application of such provision to other Persons or circumstances shall be interpreted so as reasonably to effect the intent of Part I of the Warehousing Conditions.
26.4. Customer shall comply with all laws pertaining to the Goods.
26.5. ACE shall not be liable for any delay or non-performance resulting from circumstances or causes beyond its reasonable control (“force majeure”) including storm, fog, lightning, flood, tides, fire, explosion, weather, ice, other natural disasters and other things which ACE could not reasonably prevent. If a force majeure event occurs prevents, delays or hinders performance of Services by ACE, ACE shall give prompt notice of such force majeure event to the Customer. The Customer shall continue to be liable to ACE for all Charges and other expenses incurred by ACE during the period of the force majeure event.
26.6. The failure by ACE to insist, in any one or more instances, upon the performance of any of the terms or conditions of the Agreement or Part I of the Warehousing Conditions, or to exercise any right or remedy hereunder, shall not be construed as a waiver of the future performance of any such terms or conditions or the future exercise of such right or remedy.
26.7. The Warehousing Conditions will be deemed to be incorporated in and form part of the Agreement. All transactions between ACE and the Customer shall be governed by the Warehousing Conditions together with the Agreement. In the event of any conflict between the terms of the Agreement and the Warehousing Conditions, the terms of the Agreement shall prevail. In the event of anything not mentioned in the Agreement, the Forwarding and Warehousing Conditions shall govern.
26.8. Any notice to be given by ACE under the Warehousing Conditions shall be deemed delivered if addressed to the Customer at the last known contact details (address, fax or email) of the Customer whether or not the Customer acknowledges receipt. Evidence of being sent shall be deemed evidence of receipt immediately where sent by email or fax or within 48 hours if sent by post or courier.
26.9. By requesting that ACE perform the Services and/or by executing the booking confirmation and/or other documentation to which of the Warehousing Conditions are attached and/or in which the Warehousing Conditions are referred to, Customer covenants and agrees to be bound by the terms hereof and represents and warrants the truth and accuracy of the matters set forth herein to be represented and/or warranted by Customer.
27. TERMINATION
27.1. Notwithstanding anything herein to the contrary, ACE may at any time terminate the Agreement by written notice to the Customer, effective immediately if:
27.1.1. the Customer commits a material breach of any of the terms of these Warehousing Conditions (or a document issued pursuant hereto) and such breach (if capable of cure) is not cured within fifteen (15) days after the Customer being notified by ACE; or
27.1.2. the Customer is dissolved, becomes insolvent, is unable (or admits it is unable) to pay its debts as they fall due, enters into an arrangement with or for the benefit of its creditors, goes into liquidation or commits an act of bankruptcy under the laws of its relevant jurisdiction of incorporation, or if a receiver is appointed over any of its assets or anything occurs with analogous effect to the above.
27.2. In the event that the Customer terminates the Agreement unilaterally, ACE will be entitled to a reasonable compensation for the loss it suffers as a result of the termination of the Agreement.
27.3. Upon the occurrence of a termination of the Agreement, any Charges or expenses (whether present or future, contingent or otherwise) shall become immediately due and owing by the Customer to ACE.
1. APPLICABILITY OF PART II OF THE WAREHOUSING CONDITIONS
1.1 The provisions of this Part II will apply only to the legal relationship existing between ACE and the LME Warrant Holder. The moment the LME Warrant Holder for any reason whatsoever surrenders the LME Warrant to ACE, the provisions of this Part II will cease to apply, without prejudice to ACE’s rights to enforce any and all of its rights, to which it is entitled by the LME Warrant. From such time onwards, all the provisions of Part I hereof will be applicable.
2. RIGHT TO DELIVERY
2.1 The LME Warrant confers on the LME Warrant Holder a right to delivery by ACE of the Goods which ACE has received into custody and against which the LME Warrant has been issued. ACE will not be liable for any discrepancy between the Goods which have been taken into custody and the description thereof in the LME Warrant.
2.2 The right to delivery of the Goods will not exist as long as ACE will have a lien and/or a claim on the Goods as a result of the provisions of Part II of these Warehousing Conditions or as long as all customs and other formalities prescribed by the authorities as being required for delivery of the Goods have not been complied with.
3. VALIDITY OF THE LME WARRANT
3.1 The LME Warrant will be and remain valid until it is presented to ACE for cancellation.
4. PLACE OF STORAGE OF THE GOODS
4.1 Unless otherwise agreed upon by ACE, ACE will be at liberty to decide where the Goods are stored. ACE will at any time be entitled to transfer the Goods to another storage place. The cost of any transfer and the risk of such transfer will be borne by ACE, unless the transfer has been effected by ACE in its sole discretion in the interest of protecting the Goods, or by reason of circumstances beyond ACE’s control, in which case such transfer will be effected at the sole discretion of ACE but at the cost of the Customer. ACE will notify the LME Warrant Holder of any transfer of the Goods to any other storage place, but failure to notify the LME Warrant Holder will not give the latter any right of claim against ACE.
5. ADMITTANCE TO PLACE OF STORAGE
5.1 Upon reasonable prior notice, ACE will be obliged to admit the LME Warrant Holder and/or any Persons authorised by the LME Warrant Holder to the place of storage of the Goods to which the LME Warrant refers, subject to the compliance by the LME Warrant Holder or such Person(s) authorised by the LME Warrant Holder with all formalities prescribed by the relevant authorities.
5.2 Access to and information about the Goods to which the LME Warrant refers will be given only on production of the relevant LME Warrant. Notwithstanding the aforesaid, ACE will have the right to allow access to and to furnish information about the Goods stored with ACE to any other party should this be necessary in connection with the verification of LME Warrants by any relevant banking institution or authority.
5.3 The following conditions will be applicable to Persons granted admittance to the place of storage by: -
(i) all Persons visiting the place of storage including personnel of vessels and vehicles reporting to the warehouse will observe and fully comply with ACE’s regulations;
(ii) admittance will be granted only during Working Hours and with the attendance of ACE’s employees;
(iii) all expenses incurred in relation to the visit will be paid forthwith to ACE by the LME Warrant Holder;
(iv) the LME Warrant Holder will be liable for any damage caused directly or indirectly by any
Persons who are granted admittance to the place of storage including but not limited to any damage caused to the place of storage, the Goods and other goods stored at the place of storage.
6. SERVICES
6.1 ACE will carry out such work in respect of the Goods to which the LME Warrant refers, as may be required by the LME Warrant Holder, that are accepted by ACE, as evidenced in writing or by performance, including sampling, handling, servicing, packing, re-packing, bundling, re-bundling piling, re-piling, lotting, weighing as well as delivery of the Goods at the agreed Charges and based on Part II of the Warehousing Conditions.
6.2 Work required by the LME Warrant Holder will only be executed by ACE after the LME Warrant has been lodged with ACE.
6.3 Any other work which ACE does not wish to undertake may, after the prior approval of ACE and after the LME Warrant has been lodged, be executed by or on behalf of the LME Warrant Holder, subject to any conditions laid down by ACE, under the supervision of ACE and against payment of the applicable charges. ACE will not be liable for any loss, damage or expenses incurred or suffered by the LME Warrant Holder in carrying out such work.
6.4 ACE will not be obliged to take any measures in respect of the Goods to which the LME Warrant refers, including but not limited to packing of the Goods, other than those which have been agreed to and which are considered to be customary for the Goods.
6.5 ACE will be obliged to take such other measures referred to in Clause 6.4 only if they have been agreed upon and at the sole risk and expense of the LME Warrant Holder.
6.6 ACE will be entitled, however, to take prompt action at the LME Warrant Holder’s sole risk and expense if it is feared that failure to take such action might lead to the loss and/or damage to the Goods themselves or to other goods, to the storage place or to equipment, or harm or injury to any person, such action to be taken at the sole and absolute discretion of ACE.
6.7 ACE will promptly, through the LME, notify the LME warrant holder of the action taken, but failure to give notification will not give the latter any right of claim against ACE.
6.8 Without prejudice to the provisions of the preceding paragraph, the LME Warrant Holder will indemnify ACE from and against any claims by third parties on account of damage caused to their goods by the Goods to which the LME Warrant refers including all court charges and legal costs (calculated on a full indemnity basis) in respect of all legal proceedings or intended proceedings pertaining there to.
7. DAMAGE OR DESTRUCTION OF THE GOODS
7.1 In the event of damage to the Goods to which the LME Warrant refers while the Goods are in the custody of ACE, whether resulting from any of the causes set forth in Clause 8.1 hereof or any other causes which are covered by insurance, if the assistance of ACE for assessment of such damage is desirable or necessary, such assistance will be rendered by ACE at its sole and absolute discretion against payment of such costs and expenses which may be involved and or such remuneration to be fixed by ACE for its assistance and services. ACE may make such assistance conditional upon payment of all amounts that are due to ACE by the LME Warrant Holder.
7.2 In the event that the Goods to which the LME Warrant refers are destroyed while the Goods are in the custody of ACE, whether resulting from any of the causes set forth in Clause 8.1 hereof or otherwise, the date of such destruction of the Goods will count as the date of delivery to the Last LME warrant holder and the warehouse rent plus any increases therein and any other applicable costs will be calculated up to and including this date for as many months as have elapsed and have not been recorded in the LME Warrant as already paid, any part of a month to count as a full month. ACE will notify, through the LME, the LME warrant holder of such destruction but without such LME warrant holder having any right of claim against ACE for any failure to give such notification. All warehouse rent plus any increases therein and any other applicable costs will be payable forthwith by the Last known LME warrant holder.
8. CHARGES AND PAYMENTS
8.1 All amounts due and owing to ACE by the LME Warrant Holder on any account whatsoever, including warehouse rent plus increases therein (if any), rent, disbursements, remunerations for storage and delivery, outlays and charges for work done or to be done, the cost of clearance work and the like during or after a fire, extraordinary expenses, extra wages will be due and payable by the LME Warrant Holder immediately upon issuance by ACE of the invoice in respect of such amounts. Notwithstanding the above, interest shall not accrue on the invoiced amount until 14 days after issuance of such invoice.
8.2 ACE will be entitled to demand, deduct or set off the following charges prior to full or part delivery of the Goods to which the LME Warrant gives title:
(i) the warehouse rent for so many months as the LME Warrant shows to have elapsed and which has not been recorded therein as having been paid prior to delivery of the Goods, calculated on the basis of the amount of rent per day stated to be payable in the LME Warrant, together with increase in rent (if any);
(ii) the remuneration for the delivery of the Goods at the applicable rate;
(iii) all disbursements made by ACE in respect of customs and/or any other formalities prescribed by the relevant authorities for the Goods mentioned in the LME Warrant on behalf of the LME Warrant holder requiring delivery of the Goods;
(iv) all expenses and costs incurred by ACE after the date of the issuance of the LME Warrant and/or all charges incurred by ACE:
(a) in order to preserve the Goods to which the LME Warrant refers;
(b) in order to eliminate any dangers caused by the Goods to which the LME Warrant refers, to the warehouse and/or to other goods stored therein, to equipment, to persons and/or to the Goods themselves;
(c) in relation to any measures taken in respect of the Goods to which the LME Warrant refers, and which are necessitated by circumstances beyond ACE’s control;
(v) all penalties, claims, damages, costs and expenses whatsoever arising in connection with the Goods to which the LME Warrant refers, including all court charges, stamp fees, legal costs (on a full indemnity basis) and disbursements incurred by ACE in respect of any legal proceedings or any intended legal proceedings effected by or against ACE in relation to such Goods
(vi) all other amounts due and owing to ACE as evidenced by the LME Warrant.
8.3 All payments will be made without any deduction, set-off, rebate or counterclaim whatsoever and will be deemed in the first place to have been made on account of non-preferential debts, regardless of any instructions which may be given by the LME Warrant Holder to ACE at the time of payment.
8.4 In the event that the LME Warrant Holder fails to pay any amounts which are due and payable hereunder or upon notification thereof to ACE, interest will be payable on such amounts at the rate of 3month US Dollar LIBOR rate + 5% per annum or such other rate as may be agreed between ACE and the Customer.
8.5 In the event that ACE resorts to any legal proceedings or other means for the recovery of any amounts due and payable by the LME Warrant Holder hereunder (the “Indebtedness”), the LME Warrant Holder will, in addition to the Indebtedness and interest payable under Clause 7.4 above, be liable to ACE for a further amount equivalent to 10% of the Indebtedness on account of all management time and clerical expenses which may be incurred by ACE in resorting to such proceedings or other means.
8.6 The LME Warrant Holder will bear all the court charges, stamp fees, legal costs (on a full indemnity basis) and disbursements incurred by ACE in respect of any legal proceedings or intended legal proceedings for recovery of any payments due and owing to ACE.
8.7 The Customer shall bear and pay all Taxes relating to the Goods or Services. If the Customer is required by applicable law to deduct or withhold any sum as or on account of Taxes, the amount payable by the Customer shall be increased by such amount as is necessary to ensure that ACE receives a net amount equal to that which it would have received in the absence of such deduction or withholding.
9. LIABILITY FOR LOSS OF OR DAMAGE TO THE GOODS
9.1 ACE will not be liable for any loss, damage and/or deterioration of the Goods unless such loss, damage and/or deterioration is proven to have been caused by the gross negligence or wilful misconduct of ACE, provided that ACE will not be liable for loss or damage or deterioration of the Goods, where, for example, such loss or damage or deterioration occurs in circumstances including:
(i) any damage and/or loss through theft or burglary;
(ii) any loss, damage and/or deterioration of any Goods stored in the open, or which can only be stored in the open, or which ACE customarily stores in the open;
(iii) any loss, damage and/or deterioration occurring while the Goods are in the custody of ACE or occurring before receipt by ACE of the Goods and due to the following causes, regardless of their origin:
the natural quality of the Goods, changes in the quality or character, inherent vice, decay, drying out, powdering, heat, heating, melting, staining, sweating, fermenting, freezing, rusting mildew, mould, dampness, dust, oil, discolouration, evaporation, smell or stains from contact with other goods or fuel, putrefaction, water of any kind, rain or spray, effects of climate, drainage, leakage, wastage, loss of weight, breakage, splitting, bending, chaffing, shrinkage, hook holes, rats, mice, insects and other vermin, explosion of any of the Goods whether received with or without disclosure of its nature, insufficiency, soiling, injury to, distortion, pressing or bursting of packages, adherence or coverings, failure to protect the Goods or inaccuracy, obliteration or errors in or insufficiency or absence of marks, numbers, address or description of the Goods;
(iv) any loss, damage and/or deterioration of the Goods caused directly or indirectly by existing or threatened war declared or undeclared, hostilities, warlike operations, civil war or civil commotion, revolution or the operations of international law, governmental decree, requisitioning, legislation or expropriation, confiscation orders, court orders, injunctions or third party claims, strikes, lockout, sabotage or power breakdown;
(v) loss, damage and/or deterioration of the Goods caused directly or indirectly by fire, smoke, explosion, water used for extinguishing fires, burst water piping, flood, tempest, earthquake or any other extraneous calamity or Acts of God.
(vi) errors in any delivery orders, confirmations, receipts, warrants, or any other document;
(vii) improper or inadequate packing or protection of the Goods’
(viii) all other causes which are beyond the control of ACE.
10. NO WARRANTY; NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
10.1 ACE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE GOODS OR SERVICES.
10.2 Limitation of Liability. NOTWITHSTANDING ANYTHING SET FORTH HEREIN, IN ANY LME WARRANT OR IN ANY OTHER DOCUMENT TO THE CONTRARY, TO THE EXTENT PERMITTED BY LAW:
(i) ACE SHALL NOT BE LIABLE TO THE LME WARRANT HOLDER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGE, COVER DAMAGES OR LOST PROFITS, DIMINUTION IN VALUE, OR OTHER DAMAGES WHATSOEVER RELATING TO OR RESULTING FROM THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT AND/OR PART II OF THESE WAREHOUSING CONDITIONS, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED OF WHICH ACE KNEW OR SHOULD HAVE KNOWN AND REGARDLESS OF WHETHER THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE. IN THE EVENT THAT ANY TERM OF THE AGREEMENT OR OF THE CONDITIONS OF PART II OF THE WAREHOUSING CONDITIONS IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF THIS WAIVER SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
(ii) IN THE EVENT ACE IS PROVEN TO BE LIABLE TO THE LME WARRANT HOLDER FOR ANY AMOUNTS, IN EACH CASE, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH AMOUNT(S) IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, THE MAXIMUM AGGREGATE LIABILITY OF ACE ARISING OUT OF OR RELATING TO THE AGREEMENT OR PART II OF THE WAREHOUSING CONDITIONS OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT EXCEED THE LESSER OF (a) THE ACTUAL VALUE OF THE DAMAGED OR LOST GOODS (AS EVIDENCED BY THE RELEVANT INVOICE(S) RELATING TO THE GOODS), (b) THE AGGREGATE CHARGES PAID UNDER THE AGREEMENT, or (c) USD50,000.
11. INSURANCES
11.1 The Goods will be insured by the LME Warrant Holder and ACE will not be under any duty or obligation whatsoever to take out any insurances in respect of the Goods or any part thereof.
12. MUTILATION, DESTRUCTION OR LOSS OF LME WARRANT
12.1 Erasures, deletions and amendments on or to the LME Warrant will render the LME Warrant invalid. If the details which are the subject of any erasures, deletions and/or amendments on the LME Warrant are capable of being erased, deleted or amended (as the case may be) under the relevant regulations, including but not limited to the SWORD Regulations and Operating Procedures, the LME Warrant holder may apply for a replacement LME Warrant and a replacement LME Warrant may be issued in accordance with the relevant regulations and upon the LME Warrant holder surrendering the LME Warrant with the erasures, deletions and/or amendments and making payment of the expenses involved. In ascertaining the nature and quantity of the Goods to be stated on the duplicate LME Warrant, ACE will rely on its own records as valid evidence thereof.
12.2 If a LME Warrant has been lost, stolen, damaged or has been destroyed, the party entitled to the LME Warrant may make an application to ACE for nullification of the lost, stolen, damaged or destroyed LME Warrant and for delivery of the Goods or for a replacement LME Warrant to be issued. A replacement LME Warrant may be issued upon the completion of the procedures set out in Clauses 12.3, 12.4 and 12.5 and/or such other relevant procedures as ACE may determine and (i) against delivery by the party applying for a replacement LME Warrant of an indemnity in favour of ACE and (ii) upon the said party making payment of the expenses involved. Such party will, if possible, mention in its application to ACE the cause of the loss, damage or destruction of the LME Warrant and the grounds on which the applicant bases his title to the Goods.
12.3 If enquiries made by ACE give no reason to doubt the truth of the grounds of the application, ACE may, at the expense of the applicant, publish such application by inserting two announcements at intervals of at least fourteen (14) days, each time in two (2) daily newspapers selected by ACE, inviting parties who believe they have a title to the Goods mentioned in the missing LME Warrant to oppose the delivery of the Goods or the issuance of a replacement LME Warrant to the applicant by means of a writ.
12.4 If within fourteen (14) days after the second announcement, no party opposes by means of a writ the said delivery of the Goods or issuance of a replacement LME Warrant, the missing LME Warrant may be nullified by ACE and delivery of the Goods or issuance of a replacement LME Warrant to the applicant may be effected. In ascertaining the nature and quantity of the Goods to be stated on the duplicate LME Warrant, ACE will rely on its own records as valid evidence thereof. The nullification of the missing LME Warrant will immediately thereafter be published in the above-mentioned newspapers. By such nullification, the original LME Warrant will have lost its value and all ACE’s obligations arising from the original LME Warrant will cease.
12.5 In the event that an opposing claim to the Goods by a third party is made, the application will not be granted until it will have been established by a final and conclusive judgment, decision or decree of the Court that the applicant is the party entitled to the Goods.
12.6 The party who acquires delivery of the Goods shown on the replacement LME Warrant will keep ACE indemnified from and against any and all claims which may be made against ACE as a result of the delivery of the Goods to such party. ACE will be entitled to require security to be given by such party in this respect prior to the delivery of the Goods to such party.
12.7 Any costs and expenses howsoever incurred by ACE in relation to the application including, but not limited to, publication of notices, court charges, stamp fees, legal costs (on a full indemnity basis) and disbursements incurred by ACE in respect of any legal proceedings or intended legal proceedings effected by or against ACE will be borne by the applicant. ACE may demand an advance of money before considering the application.
13. TIME BAR
13.1 ACE will be discharged from all liability in respect of any claims against ACE on account of loss, damage or decrease in quantity of the Goods to which the LME Warrant refers, or in general, on account of failure by ACE to comply with any of its obligations unless proceedings will have been commenced in respect of such claims within twelve (12) months of the occurrence of such loss, damage, decrease in quantity or failure by ACE to comply with its obligations.
13.2 In the event of any loss, damage or decrease in quantity of the Goods, the said period of twelve (12) months will commence on the day after delivery of the Goods takes place.
13.3 In the event of total loss of the Goods, such period of twelve (12) months will commence on the day after ACE has notified the Last known LME warrant holder of the loss or, if the Last known LME warrant holder no longer has the LME Warrant in its possession and should no subsequent holder come forward, the period of twelve (12) months will commence one (1) week after the announcement of the loss in two (2) daily newspapers at least one of which is being published in the place where ACE has its registered office.
14. ACE’S LIABILITY TO LME WARRANT HOLDERS
14.1 ACE has complied with all applicable regulations (including but not limited to clause 2.1 of the agreement between ACE and The London Metal Exchange Limited (the “LME Agreement”) in receiving the Goods and placing it on the LME Warrant.
14.2 ACE will comply with the requirements of the LME Agreement concerning the storage of the Goods.
14.3 ACE is not aware of any latent defects in the Goods.
15. TERMINATION
15.1 Notwithstanding anything herein to the contrary, ACE may at any time terminate the Agreement by written notice to the Customer, effective immediately if:
(i) the Customer commits a material breach of any of the terms of these Warehousing Conditions (or a document issued pursuant hereto) and such breach is not cured (if capable of cure) within fifteen (15) days after the Customer being notified by ACE; or
(ii) the Customer is dissolved, becomes insolvent, is unable (or admits it is unable) to pay its debts as they fall due, enters into an arrangement with or for the benefit of its creditors, goes into liquidation or commits an act of bankruptcy under the laws of its relevant jurisdiction of incorporation, or if a receiver is appointed over any of its assets or anything occurs with analogous effect to the above.
15.2 In the event that the Customer terminates the Agreement unilaterally, ACE will be entitled to a reasonable compensation for the loss it suffers as a result of the termination of the Agreement.
15.3 Upon the occurrence of a termination of the Agreement, any Charges or expenses (whether present or future, contingent or otherwise) shall become immediately due and owing by the Customer to ACE.
