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Customs Clearance Services Terms and Conditions

Updated 18/06/2021

1. DEFINITIONS

The following terms apply to the customs clearance services (“Service Terms“) which apply to any bookings made by the Customer for customs clearance services (the “Customs Clearance Services”).

Business Days” means a day (except Saturdays, Sundays and public holidays) on which commercial banks are open for business in Singapore.

Company” means Swire Shipping Pte. Ltd., its subsidiaries, related companies, agents, or representatives.

Customs Duties” means any duties or taxes levied on imported goods under any applicable laws or regulations relating to imports and duties, excluding any penalties, interest, or fines imposed under any of the aforesaid laws or regulations.

Disbursements” means Customs Duties, taxes, freight charges, storage charges, penalties, interests, and fines, and any other payments, including payments for goods on cash on delivery (“COD”) shipments.

Documentation” means all information received directly or indirectly from the Merchant, whether in paper or electronic form.

Goods” means the whole or any part of the cargo received from the Merchant and includes the packing and any equipment or Container not supplied by or on behalf of the Company.

Tariffs” means the Company’s tariffs applicable in the relevant jurisdiction in which the Customs Clearance Services will be provided. Copies of the relevant Tariffs are obtainable from the Company or its agents upon request.

Merchant” means the person for which the Company is rendering the Customs Clearance Services, as well as its agents or representatives, includes, without limitation, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees.

Services” means the services set out in Section 4 hereof.

2. APPLICATION OF TERMS

The Service Terms shall apply to any booking for Customs Clearance Services.

Where the company provides services to the Merchant for the carriage of goods and issues a bill of lading or waybill, whether in electronic or paper format, the terms and conditions of the bill of lading or waybill, which can be found at https://info.swireshipping.com/termsandconditions/, shall be deemed incorporated into the Service Terms. By booking the Customs Clearance Services, the Merchant acknowledges, confirms and accept to be bound by the bill of lading terms incorporated herein.

The definitions set out in the bills of lading or waybill shall be adopted and shall have the same meaning where used in the Service Terms, unless otherwise defined herein. In case of conflict between the Service Terms and the bills of lading or waybill, the Service Terms shall prevail.

Regardless of the Company providing services for the carriage of goods, the Merchant expressly accepts that it will be responsible for all of the liabilities of the shipper, whether disclosed or not.

3. APPOINMENT AS CUSTOMER AGENT

The Merchant hereby appoints the Company to act as the Merchant’s agent for the purpose of performing duties in connection with the Customs Clearance Services.

By booking the Customs Clearance Services, the Merchant agrees that it will be deemed a Merchant and the Merchant consequently accepts that it is responsible for all the obligations and liabilities of the shipper/consignee in relation to customs clearance at the load and/or discharge port, whether the Merchant is aware of these or not.

Any changes to the nominated shipper or any other party subsequent to the booking of the Customs Clearance Services is subject to the Company’s approval, which is at the Company’s sole discretion.

In nominating a shipper or other party in relation to the booking of Customs Clearance Services, the Merchant warrants that it has authority to legally bind the nominated shipper or other party relating to the booking of Customs Clearance Services and, should that not be the case, the Merchant will be fully liable and shall indemnify the Company for any and all losses, damages or costs suffered, directly or indirectly, as a consequence of the absence of such authority.

The Company may update, revise and/or amend these Service Terms at any time with or without prior notice to the Merchant.

The Company is expressly permitted to appoint sub-agents when and as required.

4. SERVICES

The Company, in its capacity as the Merchant’s agent, will provide the following Customs Clearance Services to the Merchant, when requested so by the Merchant:

  1. Preparing or assisting Merchant in preparing Documents for Merchant’s import and/or export declarations.
  2. Reviewing Documents prepared by the Merchant to ensure their compliance with local Customs.
  3. Filing of the Documents for customs clearance of the Goods and subject to clause 11 below, making any necessary changes to the Documents, including preparation and filing of any required corrections.
  4. Services relating to tariff classification and valuation of the Goods to minimize Customs Duties payable in accordance with applicable laws and regulations, as well as submitting binding ruling requests or protests, as necessary.
  5. Any other services necessary and incidental to the provision of the foregoing Services.
5. RATES AND DISBURSEMENTS

Any quotation reference number or quotation of rates or other charges provided by the Company in response to a booking request by the Merchant, are for information purposes only and are subject to change without notice.

A quotation shall only become binding on the Company once the Company has issued a booking confirmation (the “Booking Confirmation”), at which point the rates or other charges provided in the Booking Confirmation are final and binding and not subject to change.

The rates quoted and/or set out in the Booking Confirmation are calculated based on the rates, charges, surcharges, fees, adjustment factors (including local ones), rules, exceptions, exclusions and exchange rates at the time the Booking Confirmation is issued.

The Company will invoice the Merchant in the local currency where the Customs Clearance Services will be provided. If the Merchant wishes for the invoice to be in a currency other than the local currency and/or the rate, fee or other charges included in the Booking Confirmation are in a currency other than the local currency, then the Merchant agrees and acknowledges that the amount invoiced may vary due to currency fluctuations.

6. AMENDMENT TO BOOKING

If the Customer requests an amendment to the booking of the Customs Clearance Services after a Booking Confirmation has been issued, such requests have to be made in writing and are subject to:

  1. the Company’s approval, which in the Company’s sole discretion can be withheld, in which case the Merchant’s booking becomes null and void;
  2. a rate review using the latest rates available at the time of processing the request; and
  3. an additional charge for the amendment to the booking (the “Amendment Fee”), as set out in the Tariffs.
7. CANCELLATIONS

If the Merchant wishes to cancel the booking of the Customs Clearance Services after the Booking Confirmation has been issued, then a written cancellation notice must be issued by the Merchant to the Company within one working day after the Booking Confirmation was issued.

The Merchant will also be liable to pay a late cancellation fee (“Cancellation Fee”), as set out in the Tariffs.

If the Merchant cancels the booking of the Customs Clearance Services prior to the Booking Confirmation having been issued, the Merchant is not liable to pay the Cancellation Fee.

8. COMPANY ENTITLED TO DECLINE CUSTOMS CLEARANCE SERVICES

1.1    The Company reserves the right to decline any booking notwithstanding the issuance of a Booking Confirmation or other documents and/or having taken receipt of the Goods, if the Company has reason to believe or reason to suspect that by carrying out the Customs Clearance Services on behalf of the Merchant the Company may risk being in breach of any laws, rules, regulations or other restrictions under the laws of any jurisdiction.

1.2    If under clause 1.1 the Company declines to provide Customs Clearance Services, the Merchant will be liable (i) to arrange for the Goods to be collected; and (ii) to pay for any and all charges, sur-charges, costs and expenses. The Merchant will also indemnify the Company for any and all losses, damages or costs suffered, directly or indirectly, as a consequence of the Company declining to provide Customs Clearance Services under clause 1.1.

9. INVOICING AND PAYMENT

After completion of the Customs Clearance Services the Company will issue its invoice for all fees and disbursements pertaining to the Customs Clearance Services rendered to and on behalf of the Merchant.

Payment of the full invoices amount shall be payable within five (5) business days of the date of the invoice. Any late payments will be subject to a late payment interest rate at 3% per annum.

All payments shall be made in accordance with the details set out in the invoice and shall be made by electronic transfer to the bank account details indicated in the invoice. Payment will be deemed to have been made once the funds have been credited to the Company’s bank account.

10. MERCHANT’S DUTIES AND RESPONSIBILITIES

The Merchant shall provide the Company in a timely manner with accurate and complete information, Documents and Goods reasonably necessary for the Company to provide the Customs Clearance Services.

In preparing and submitting any documents whatsoever for the purpose of the Customs Clearance Services the Company relies on the accuracy of all Documentation, whether in written or electronic format, and all information furnished by the Merchant.

If the Company has to prepare any documents, the Merchant shall review these and within the deadline given by the Company, notify the Company of any inaccuracies, errors, or omissions found by the Merchant therein.

If the Merchant fails to notify the Company of any inaccuracies, errors, or omissions in these documents:

  1. then the Company shall not be liable for any delays in the customs clearance;
  2. the Merchant will be liable for any and all associated costs, damages, charges or fines; and
  3. the Merchant shall indemnify the Company for any and all losses, damages, costs, fines, lawsuits or legal fees, as a consequence thereof.

The Merchant undertakes that all Goods:

  1. comply with the applicable laws and regulations;
  2. are properly prepared, packed, labelled and/or marked, and that the description is accurate and complete; and
  3. that all information relating to any dangerous character of the Goods is properly provided as may be required by the laws and regulations of the country of export and the country of destination of the Goods.

The Merchant shall use reasonable care to ensure the accuracy of all information and Documents provided to the Company and shall indemnify and hold the Company harmless from any claims or liability or losses suffered by reason of Merchant’s failure to disclose information, or any incorrect, incomplete, or false statement by the Merchant upon which the Company relied.

11. COMPANY’S DUTIES AND RESPONSIBILITIES

The Company shall take reasonable degree of care and skill in providing the Customs Clearance Services.

When dealing with customs for and on behalf of the Merchant the Company acts in the capacity as agent only, with the Merchant as principal.

The Company is entitled to engage carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and other third parties, as required, to handle any part or the entire Customs Clearance Services, all of whom shall be considered as agents of the Merchant, and the Goods may be entrusted to such agents subject to all conditions and limitations of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts or tariffs issued by such carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others.

12. LIMITATIONS OF LIABILITY

The Company shall not be liable for any claims, liabilities, losses, damages, costs, delays, attorney fees and/or expenses whatsoever which arise under or in connection with the Customs Clearance Services, including their termination, unless such matter arise as a result of Company’s gross negligence or wilful misconduct.

The Company’s maximum liability to the Merchant for any and all matters arising under or in connection with the Customs Clearance Services and the Service Terms shall be limited to (i) 666.67 SDR per package or other shipping unit or (ii) 2 SDR per kilogram of the gross weight of the Goods lost or damaged, whichever is higher.

The Company shall not be liable whatsoever and howsoever arising for any consequential, indirect, incidental, or punitive damages even if it has been put on notice of the possibility of such damages arising under or in connection with the Customs Clearance Services.

If the Company physically handles any Goods, it does so subject to the limitation of liability set forth in the Service Terms and unless requested in writing by the Merchant, the Company shall be under no obligation to undertake any pre- or post-customs release action.

Any and all claims whatsoever and howsoever arising out of or in connection with the Customs Clearance Services and/or under these Service Terms shall be deemed time barred within one (1) year after the Customs Clearance Services have been, or should reasonably have been carried out.

13. FORCE MAJEURE

Force Majeure Eventmeans any circumstance not within a party’s reasonable control including, without limitation:

  1. acts of God, flood, drought, earthquake or other natural disaster;
  2. epidemic or pandemic, port or customs closure in part or in whole by any authority directly or indirectly in relation to epidemics or pandemics;
  3. port congestion which is reasonably anticipated to incur delay of 48 hours or more;
  4. trains or trucks used by the Company are cancelled, inland terminal/port and unloading of train/truck used by the Company are delayed, lack of labour to unload/load the train/truck used by the Company are, or any other events whatsoever beyond the reasonable control of the Company;
  5. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  6. compliance with any compulsorily applicable law or order or governmental directive;
  7. collapse of buildings, fire, explosion or accident;
  8. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); and
  9. nuclear, chemical or biological contamination or sonic boom; (“Force Majeure Event”).

The affected party shall:

  1. within 48 hours of the affected party becoming aware of the Force Majeure Event, notify the other party in writing of the ForceMajeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
  2. use all reasonable endeavours to mitigate the effect of the ForceMajeure Event on the performance of its obligations.

In the event of a Force Majeure Event, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

With the exception of payment provisions, the parties’ obligations under this Agreement shall be suspended without penalty or liability during the existence of a Force Majeure Event.

14. REPRESENTATIONS AND WARRANTIES

Each party represents and warrants to the other party that:

  1. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
  2. the execution of this Agreement by each of the individuals whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action on the part of such party; and
  3. this Agreement has been executed and delivered by such party and constitutes the legal, valid, and binding obligation of such party.
15. CONFIDENTIALITY CLAUSE

Any commercial sensitive information, including but not limited to rates, disclosed in any form whatsoever and whether or not such information is marked as confidential, by either party shall be kept strictly confidential and shall not (whether intentionally or otherwise) be sold, traded, published or otherwise disclosed to anyone in any manner whatsoever, including by means of photocopy or reproduction, without the disclosing party’s prior written consent.

Any confidential information disclosed, shall only be used for the purpose of the Customs Clearance Services and disclosure thereof to third parties is only permitted, if so, required by law.

Both parties acknowledge that the confidential information shall at all times remain the property of the disclosing party to the extent permitted by law.

16. ENTIRE AGREEMENT

These Service Terms comprise the full and complete agreement of the parties and supersedes and cancels all prior and contemporaneous communications, understandings and agreements between the parties, whether written or oral, expressed or implied with respect to such subject matter.  These Service Terms shall be binding upon and inure to benefit of the respective successors, heirs, representatives and permitted assigns of the parties.

17. VARIATIONS

No modification, amendment or variation of any kind to these Service Terms is valid unless it is in writing and signed by a duly authorised representative of each party.

18. MISCELLANEOUS

Any notice or other communication given to a party under or in connection with these Service Terms shall be in writing and sent to the Company. Any notice or communication shall be deemed to have been received:

  1. if sent by pre-paid first-class post the next working day delivery service, at 9.00 am on the second business day after posting; or
  2. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

In this clause 19.2 (b), business hours mean: 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the country where the Customs Clearance Services are being provided.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

19. WAIVER

A waiver by either party of any breach of any term or condition must be in writing and shall not be construed as a waiver of any subsequent breach of the same or any other term or condition.

No failure on the part of either party to exercise, and no course of dealing with respect thereto, and no delay in exercising, any right, power, or remedy under this Agreement will operate as a waiver thereof.

The rights and remedies set forth herein are not exclusive and are in addition to any other rights and remedies available.

20. SEVERANCE

If any provision or part-provision of this agreement 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 this agreement.

21. GOVERNING LAW; DISPUTE RESOLUTIONS

All disputes arising out of or relating to this Service Terms and or Customs Clearance Services shall be governed by and construed exclusively in accordance with the laws of Singapore.

Any disputes arising out of or in connection with these Service Terms, including any questions regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.