Terms and Conditions
The Customer's attention is particularly drawn to the provisions of clause 11 (Limitation of liability) and clause 13.7 (Time Bar)
1 Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Carrier: any carrier of goods that the Supplier may utilise to provide the Service.
Conditions: these terms and conditions as amended from time to time in accordance with clause 2.2.
Contract: the contract between the Supplier and the Customer for arranging the carriage of Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Service from the Supplier.
Dangerous Goods: goods the carriage of which poses an unreasonable risk to health safety and property and without prejudice to that generality which may be prohibited by ADR, IATA, IRU and IMDG Code.
Delivery: the arrival and tender of the Goods at the Delivery Location.
Delivery ETA: the ETA of Delivery.
Delivery Location: as defined in the Specification.
Delivery Location Amendment: means where the Customer requests that the Delivery Location be amended after the Commencement Date.
Designated Person: means a person who has been so designated by Sanctions.
Force Majeure Event: has the meaning given to it in clause 12.
Goods: the goods (or any part of them) set out in the Specification.
Guaranteed Time and Delivery Date: the date stated in the Specification.
Landing ETA: means the ETA of the Goods at the final airport in the country of destination and after release of the Goods from customs formalities.
Order: the Customer's written acceptance of the Supplier’s quotation as set out in the Specification. Any such order is deemed to be an offer to purchase the Service from the Supplier.
Prescribed Country: means a country state or territory which is subject to Sanctions.
Prohibited Goods: those goods whose shipment would be a breach of clause 4.1(g).
Receipt Location: as stated in the Specification.
Sanctions: means any restrictive measure imposed by the United Nations, the European Union, the United States of America, the United Kingdom or by virtue of any other international obligation.
Service: arranging the carriage of Goods between the Receipt Location and the Delivery Location.
Specification: the description or specification of the relevant Service.
Supplier: Hot Time Critical Israel Ltd registered in Israel with company number 516737624.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
2 Application
2.1 These Conditions apply to all and any activities of the Supplier in the course of business whether gratuitous or not.
2.2 Any variation of these Conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed to in writing by a director or member of the senior management of the Supplier.
3 Basis of Contract
3.1 The Order constitutes an offer by the Customer to purchase the Service in accordance with these Conditions.
3.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate by way of any purchase order or other document, or which are implied by law, trade custom, practice or course of dealing. Any conditions which differ from these Conditions will not be valid, even if the Supplier supplies a Service without reservation.
3.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of [30] minutes from the time of its issue.
3.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3.6 Should the Customer cancel the Order after the Commencement Date, the Customer will pay the Supplier all expenses for which the Supplier has been unable to secure a refund and will pay a cancellation fee of US $75.
4 Customer's obligations
4.1 The Customer shall:
(a) not proffer for carriage Dangerous Goods or Prohibited Goods;
(b) where Guaranteed Time and Delivery Date applies not proffer Goods which, in one parcel or package exceeds the maximum allowance or the size/dimensions of a single party permitted by any Carrier;
(c) provide full and accurate information about the Goods including but not limited to their value, content, weight, dimensions, volume and including any special guidelines relevant to Goods;
(d) properly label (clearly indicating the details of the sender and the details of the consignee including delivery address) and package the Goods;
(e) ensure that all accompanying documents are present and are complete and correct in every detail;
(f) be responsible for all matters relating to customs clearance of the Goods including the payment for all duties, taxes, deposits, levies and outlays relating to the Goods;
(g) comply with all applicable laws.
(h) ensure that the Goods are ready and available for collection at the Receipt Location at the agreed time and date for collection;
(i) ensure that the Goods are promptly accepted at the Delivery Location on Delivery.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default; and
(d) for the purpose of this clause 4.2, a reference to the Customer shall also include the consignee or any person who has become the owner of the Goods or any person who may have become interested in the Goods.
5 ETAs
5.1 The Supplier will provide a Landing ETA which is not guaranteed and may be subject to delay or change of airport caused by the carrier “bumping” the Goods to the next scheduled flight. As this often occurs at short notice, the Supplier is under no obligation to notify the Customer of this event but the Customer shall be responsible for any addition to the Price.
5.2 Delivery ETA
The Supplier will provide a delivery ETA in the Specification. Subject to clause 11.2.3(c) the Supplier is entitled to alter the Delivery ETA up to a maximum of 12 hours with no liability if the alteration is caused by a change in the Landing ETA. Should the delay exceed 12 hours the Supplier will, in its absolute discretion, provide either a discount or carriage for free for the replacement Contract.
6 Customer’s Indemnity
6.1 The Customer shall hold harmless and indemnify the Supplier for all liability loss damage costs expenses, and any fines duties or taxes levied by any relevant authority in relation to the Goods arising out of
(a) breach of the Customer Obligations contained in clause 4 above;
(b) any negligence of the Customer;
(c) any instructions of the Customer given to and acted upon by the Supplier; and
(d) any breach of Sanctions.
7 Sanctions
7.1 The Customer warrants at the time of Order that:
(a) that it is not subject to Sanctions.
(b) that the provision of the Services will not be an export or import or movement of Goods which are subject to Sanctions.
(c) that the seller, supplier, buyer or consignee is not a Designated Person.
7.2 Notwithstanding anything to the contrary in these Conditions, the Supplier shall not be required to do anything which would amount to breach of Sanctions.
7.3 In the event that the Supplier on reasonable grounds believes or suspects that the Customer may be in breach of Sanctions, the Supplier shall be immediately entitled to cancel the Services and terminate the agreement contained in these Conditions without any further penalty or liability.
8 Data Protection
8.1 The following definitions apply in this clause 8:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
(c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
8.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
8.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
8.4 Without prejudice to the generality of clause 8.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
8.5 Without prejudice to the generality of clause 8.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
8.6 The Customer consents to the Supplier appointing a third party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement that incorporating terms which are substantially similar to those set out in this clause 8 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 8.6.
9 Charges and payment
9.1 The price for the Service:
(a) shall be the price set out in the Specification; and
(b) shall be exclusive of all costs and charges of packaging and insurance of the Goods, which shall be invoiced to the Customer.
9.2 The Supplier reserves the right to increase the price of the Service by giving notice to the Customer at any time before completing delivery of the Goods, to reflect any increase in the costs of the Services to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered to be carried or there has been a Delivery Location Amendment; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.3 The Customer shall pay each invoice submitted by the Supplier:
(a) [in advance];
(b) within [30] days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(c) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
9.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.5 will accrue each day at 8% a year above the Bank of England's base rate from time to time.
9.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.7 The Supplier (a) has a general lien on all Goods and documents relating to the Services in its possession custody or control for all sums due to it at any time to the Supplier from the Customer on any account whatsoever whether relating to Services supplied on behalf of the Supplier to the Customer; and (b) shall be entitled, on at least 21 day’s notice in writing to the Customer, to sell or dispose of or otherwise deal with such Goods or documents as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums; and shall, upon accounting to the Customer for any balance remaining after payment of any sum due to the Customer, and for the cost of sale and/or disposal and/or dealing, be discharged of any liability whatsoever in respect of the Goods or documents. For the avoidance of doubt, the costs of sale and/or disposal and/or dealing shall extend to any legal costs incurred, such costs to be paid for on indemnity basis.
10 Supplier’s Obligations
10.1 The Supplier shall:-
(a) be responsible for the Goods only between the place of Receipt Location and Delivery Location save where the Goods are in the custody or control of the relevant customs authority;
(b) in the provision of the Services exercise a reasonable degree of care and diligence; and
(c) to select the Carrier. For the avoidance of doubt any such Carrier shall be entitled to subcontract the carriage.
10.2 The Supplier is under no obligation to insure the Goods.
11 Limitation of liability
11.1 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Unless the Supplier is subject to the mandatory applications of the following conventions which contain limits of liability :-
11.2.1 The Montreal Convention of 1999 (air)
11.2.2 Convention Concerning International Carriage by Rail (COTIF), Appendix B dealing with uniform rules concerning the Contract for International Carriage of Goods by Rail (CIM) (rail)
11.2.3 Convention Relative au Contrat de Transport International de Marchandises par Route, Geneva 1956 (CMR) (road)
the liability of the Supplier shall be as follows:
(a) claims for loss or damage to Goods shall not exceed the lesser of the value of the Goods or a sum at the rate of 2 SDRs per kg or the gross weight of such Goods.
(b) if there is a failure to meet the Guaranteed Time and Delivery Date such claim shall not exceed a refund of the Supplier’s Charges.
(c) unless the Guaranteed Time and Delivery Date has been selected by the Customer and save where clause 5.2 applies, the Supplier have no liability for failure to meet agreed dates for either departure or arrival dates of the Goods.
11.3 This clause 11.3 sets out specific heads of excluded loss:
(a) Subject to clause 11.1 and 11.2 above clause 11.3(b) excludes specified types of loss.
(b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
This clause 11 shall survive termination of the Contract.
12 Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 72 hours written notice to the affected party.
13 General
13.1 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 13.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
13.2 Waiver.
(a) Except as set out in clause 3.5, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
13.4 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.5 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
13.6 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
13.7 Time Bar
13.7.1 Any claim by the Customer against the Supplier arising in respect of the service provided by the Supplier to the Customer shall be made in writing and notified to the Supplier within 30 days of the date upon which the Customer became, or reasonable to become aware, of any event or occurrence alleged to give rise to such a claim and any claim not so made and notified shall be deemed to be waived and absolutely time barred, except where the Customer can show that it was impossible for him to comply with this time limit and has made the claim as soon as is reasonably possible.
13.7.2 The Supplier shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Goods or the Services supplied unless court proceedings be commenced and written notice given to the Supplier within one year from the date either Delivery of Goods or the Delivery of Services as the case may be.