Terms of Service
1. Our standard terms and conditions of carriage for shipments
[1] When ordering DealerSend’s services you, as “Shipper”, are agreeing, on your behalf and on behalf of the receiver of the Shipment (“Receiver”) and anyone else with an interest in the Shipment that these Terms and Conditions shall apply.
[2] “Shipment” means all documents or parcels that travel under one waybill andwhich Shipper hands over to DealerSend, and which may be transported and delivered by any means of transport selected by DealerSend, whether by air, road or any other means of transport. Each such shipment is transported under limited liability pursuant to these general terms and conditions. A “waybill” shall include any Shipment identifier or document produced by DealerSend or Shipper automated systems such as a label, barcode, waybill or consignment note as well as any electronic version thereof. If Shipper requires greater protection, then insurance may be arranged at an additional cost.
2. Scope
[1] These general terms and conditions (“GTC”) shall apply to all agreements between DealerSend and the Shipper or DealerSend and the Receiver regarding the transport and delivery of Shipments and any possible ancillary related services, unless otherwise agreed in writing by DealerSend.
[2] As a part of the E-Commerce Related Services, DealerSend may provide links to websites operated by third parties. DealerSend is not responsible for the collection or processing of personal data or the operation or contents of such third party sites. Users should check the terms of use and privacy policies of such websites prior to use.
[3] The Shipper or the Receiver agrees to be bound by the GTC at the time of account opening. Any revisions to the GTC will be posted at www.dealer-send.com or may be obtained from DealerSend directly upon request. The Shipper’s or the Receiver's continued use of DealerSend’s services including but not limited to transport and delivery of Shipments, any or all services or of any DealerSend website shall constitute the Shipper’s agreement to the revised version of the GTC, and the Shipper also agrees to abide by the terms of use and privacy policy posted at www.dealer-send.com.
[4] The Shipper’s or the Receiver's general terms and conditions shall not apply and are herewith explicitly excluded, even if DealerSend has accepted the Shipment without any express objection. Any terms and conditions which amend or modify these GTC shall be agreed in writing between the Parties (“Shipper” and “DealerSend” or “Receiver” and “DealerSend”).
3. Agreements and Services
[1] Contracts regarding transport and delivery of Shipments are concluded between the Shipper and DealerSend or the Receiver and DealerSend, as long as in written form, in online form or by way of hand-over of the Shipment and acceptance of the same for transport and delivery in accordance with these GTC.
[2] DealerSend accepts Shipments that comply with the GTC for transport and delivery from the Shipper at the sites of DealerSend, or picks up such Shipments at agreed sites of the Shipper, or have them picked up by another service providers, in order to deliver such Shipments to agreed sites of the Receiver directly or have them delivered by another service providers.
[3] The Shipper shall label the Shipment correctly and provide all necessary details to enable DealerSend to perform the services including transport and delivery, settling of damages claims and/or return of the Shipment, as the case may be.
[4] DealerSend will accept special instructions from the Shipper or the Receiver for Shipments only if these instructions are notified in the agreed form or in a separate agreement between the Parties. DealerSend is not obliged to comply with any special instructions if these are issued only after the Shipment has been handed over for transport and delivery.
[5] The Shipper or the Receiver agrees to all routing and diversion, including the possibility that the Shipment will be transported via intermediate stops, at the sole and absolute discretion of DealerSend.
4. Shipments
[1] DealerSend shall not undertake the transport and delivery of any Shipment which contains Prohibited Goods (as defined below). Prohibited Goods include, but are not limited to the items listed below, and as may be updated from time to time by service providers (the latest updated list is available at the official websites of DealerSend):
1) Shipments the content, external form, transportation or storage of which violates a statutory prohibition or a prohibition by a public authority, in particular – but without limitation – regulations regarding export, import or customs law of the countries of origin, destination or transit, or goods for which special equipment (e.g. for temperature-controlled goods), safety precautions or authorizations are required;
2) Shipments or items the transportation of which is prohibited or is subject to special restrictions under UPUC (“Universal Postal Convention and the supplementary documents as applicable in the latest version”), International Air Transport Association (“IATA”) or International Civil Aviation Organisation (“ICAO”) rules;
3) Shipments the transportation and/or storage of which is subject to hazardous goods regulations, including but not limited to goods that are not completely free from restrictions under current IATA and ICAO hazardous goods regulations;
4) Shipments the content of which violates intellectual property rights, including forged, counterfeit or unlicensed copies of products (brand and trademark piracy);
5) Shipments the content or external characteristics of which may cause death or injury to or infection of persons or damage to property;
6) Shipments containing forgeries, unlicensed copies of products, counterfeits, live animals or plants, human or animal remains, narcotics or intoxicants, perishable goods, or goods requiring special handling (e.g., temperature or humidity control);
7) Shipments containing Controlled Items and/or does not comply with applicable Trade Laws;
8) Shipments containing goods subject to excise duties or special regulatory procedures or authorization for transport;
9) Sender, any holding company, Consignee or any third party, directly or indirectly involved in the shipment or transaction or contracted by Sender is listed on any applicable sanctions lists as a Denied Party;
10) Shipments containing goods classified as hazardous material, dangerous goods, prohibited or restricted articles by the ADR (European Agreement concerning the International Carriage of Dangerous Goods by Road) for Shipments carried by road, IATA (International Air Transport Association) and ICAO (International Civil Aviation Organization) for Shipments carried by air, or other relevant organization;
11) Shipments have inadequate or defective packaging;
12) Shipments containing cash or other methods of payment, precious metals, works of art, jewelry, watches, precious stones or other valuables or securities (unless otherwise agreed by DealerSend in its sole and absolute discretion);
13) Unfranked or insufficiently franked Shipments and Shipments transported or delivered with the intention of fraudulently obtaining the transport service without paying for it;
14) Shipments that contain weapons, especially firearms, or parts thereof, imitation weapons or ammunition; and
15) Shipments which contain obscene or pornographic articles.
[2] The Shipper or the Receiver warrants that the Shipment does not contain any Prohibited Goods and has been correctly packaged and is appropriately protected. Notwithstanding any other rights of DealerSend, the Shipper or the Receiver shall indemnify DealerSend from any liability for third-party claims resulting from the transportation or delivery of Prohibited Goods or other inadmissible or unlawful goods. The contractual liability of DealerSend for its own conduct and that of its agents or subcontractors remains unaffected.
[3] The Shipper or the Receiver undertakes to indemnify DealerSend promptly upon first demand against any loss or damages arising out of any alleged third-party claims and any other loss or damage that DealerSend incurs as a result of the transportation or delivery of the Prohibited Goods. The indemnity by the Shipper or the Receiver shall also cover the expenses incurred by DealerSend in connection with the provision of information, confiscation by the customs authorities or border seizure which are required by law or have been ordered by a court or a government authority.
[4] If a Shipment contains Prohibited Goods or the Shipment – because of its nature (size, format, weight, contents, etc.) or for other reasons – does not comply with Section 4(2) above or with the other provisions of these GTC, DealerSend shall be entitled to:
1) Refuse acceptance of the Shipment;
2) If the Shipment has already been handed over, abandon it, dispose of it, hand it over to the relevant authorities, return it or store it until its collection and to invoice the Shipper or the Receiver for any additional costs incurred as a result of taking any of the aforementioned measures; or
3) Transport the Shipment without notifying the Shipper or the Receiver and, if necessary and/or required by law, to choose a different route (e.g. by road and sea instead of by air freight as planned) and to invoice the Shipper or the Receiver for any additional costs incurred as a result,
[5] DealerSend is not obliged to check whether a Shipment contains Prohibited Goods. However, DealerSend shall be entitled to open a Shipment and to inspect the contents if it suspects that the Shipment contains Prohibited Goods. In addition to the foregoing, DealerSend has the right to open and inspect a Shipment without notice for security or customs or other valid reasons. Further, DealerSend carries out regular checks in accordance with the applicable statutory aviation security regulations and if goods which may not be transported by air are found, or if there is reason to suspect that these goods ought not to be transported by air, DealerSend shall be entitled to transport the goods by land or sea, notwithstanding its other rights under Section 4(4).
5. Customs Clearance and Customs Regulations
[1] The Shipper or the Receiver is obliged to comply with the applicable import and export regulations and the customs regulations of the country of origin, destination and transit. The Shipper shall complete the necessary accompanying documents (customs declaration, export licenses etc.) truthfully and completely, and shall hand these over with the Shipment.
[2] DealerSend does not assume any liability for the content of the Shipment and the accompanying documents, even if these are prepared by or on behalf of DealerSend upon the Shipper’s request or the Receiver's request. The Shipper or the Receiver remains solely responsible for all risks and consequences of importing and exporting goods. This shall apply independently of the grounds on which the dispatch is restricted or prohibited, either by applicable statutory provisions or is restricted or excluded under these GTC or other contractual provisions. Sections 2(3) and 4(3) remain unaffected.
[3] The Shipper or the Receiver shall indemnify DealerSend from third-party claims arising from or in connection with violations against the provisions specified in this Section 5.
6. Deliveries and Undeliverables
[1] The Shipments shall be delivered to the Receiver's address specified by the Shipper, though not necessarily personally to a Receiver named in person. Shipments to addresses with central delivery departments shall be delivered to these departments.
[2] If necessary for the return of undeliverable Shipments, the Shipper or the Receiver agrees that a corresponding return label as per DealerSend’s requirements shall be attached to such Shipment. The Shipper or the Receiver shall use best efforts to assist DealerSend in returning such Shipment and particularly to furnish all necessary customs documents and all other documents and information which may be required for the return.
[3] If the Receiver refuses to accept a Shipment or refuses to make payment, DealerSend shall be entitled to release, sell, destroy or otherwise dispose of such Shipment without incurring any liability to the Shipper, Receiver or any other third party, provided that DealerSend has made reasonable efforts to return such Shipment at the expense of the Shipper or the Receiver or if applicable law prohibits or prevents the return of such Shipment to the Shipper.
[4] Unless special instructions are issued in accordance with Section 3(4), if an undeliverable Shipment is returned in accordance with Sections 6(2) and 6(3), DealerSend reserves the right to determine the timeframe for, the manner (i.e. whether individually or on a consolidated basis) and the mode of transport for such returned Shipment.
7. Shipment Charges
[1] The Shipper or the Receiver shall pay to DealerSend the agreed charges for the agreed services.
[2] All prices indicated are net prices and are exclusive of any taxes, customs duties and fees. Such taxes, customs duties and fees shall be invoiced to and payable or reimbursable by Shipper or Receiver.
[3] All invoices shall be due and payable by the Shipper or the Receiver, without deduction or set-off, within the credit period granted by DealerSend.
[4] In case of non-payment by the Shipper or the Receiver of any outstanding amount, DealerSend shall be entitled to suspend any or all of the services, charge interest on all overdue amounts from the due date until payment and/or exercise such other right or remedy in respect of such outstanding amount.
[5] In the event that the Shipper’s or Receiver's original choice of service and/or product is no longer applicable or available for any reason, DealerSend reserves the right to select the next best available or appropriate service and/or product in respect of the Shipper’s or the Receiver's Shipment and the charges for the service and/or product actually performed shall constitute the charges for the said Shipment.
[6] DealerSend reserves the right to charge based on the higher of actual or volumetric weight per piece and any Shipment may be reweighed and re-measured by DealerSend to confirm this calculation. This is referred to as “chargeable weight” and may be billed on a separate invoice.
[7] In the event there is any query on an invoice, then only the disputed item on the invoice shall be held from payment and all other amounts owing and not disputed are to be paid on the due date. Queries on invoices must be reported to DealerSend within five (5) days of invoice date. DealerSend prefers to put in place direct debit facilities to receive payments on the due date. If any sum is not paid by the due date, for reasons other than a good faith dispute, DealerSend shall, without prejudice to any other right or remedy, be entitled to require the payment in advance for any Shipments, suspend the provision of any or all of the Services, exercise a general and particular lien on all Shipments in DealerSend’s possession with a right to sell and/or dispose of the same, and/or charge interest without further notice at 2% per month calculated and accrued daily to the balance outstanding and overdue (whether before or after judgment). The Shipper or the Receiver agrees to reimburse DealerSend all reasonable costs (such as external collection agency, legal fees and other related expenses) incurred by DealerSend in connection with recovering amounts owing from the Shipper or the Receiver.
8. Liability
[1] DealerSend’s liability for any and all services is strictly limited to only direct loss and damage to a Shipment which is caused by the fulfillment handled by DealerSend and to the limits of liability set out in this Section 8. All other types of loss or damage are excluded (including but not limited to lost profits, income, interest, future business), whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to DealerSend’s attention before or after acceptance of the Shipment.
[2] All claims must be submitted in writing to DealerSend within the timeframes set out below, failing which DealerSend shall have no liability whatsoever:
For Express Shipments, customer to submit after 7 calendar days and no later than 14 calendar days from the date of dispatch. Claims submitted after 14 calendar days will not be processed.
For Postal Shipments, customer to submit after 14 calendar days and no later than 1 month from the date of dispatch. Claims submitted after 1 month will not be processed.
Claims are limited to one claim per Shipment, settlement of which will be full and final settlement for all loss or damage in connection therewith. All claims are determined by service providers and DealerSend has no liability on it at all. All of the original shipping cartons, packing and contents must be made available for DealerSend’s inspection and retained until the claim is concluded. DealerSend is not obliged to act on any claim until all service charges have been paid.
[3] DealerSend’s liability in respect of any one Shipment shall be limited to (i) the Shipment’s declared value, (ii) 5 US Dollar per shipment, (iii) actual production cost or (iv) any other limit in the relevant tariff guide (or its equivalence) agreed between the Parties, whichever is the lowest. If any of the aforesaid limitation amounts are in a currency other than the currency in which the invoices are normally presented, such amounts shall be converted at DealerSend’s then-prevailing Network Exchange Rate (NER) to the currency in which the invoices are normally presented.
[4] If Shipper or the Receiver regards the limits set out in Section 8(3) as insufficient, it must make its own insurance arrangements.
9. Sanctions
[1] The Shipper or the Receiver warrants that neither the receipt, transportation nor the delivery of its Shipments will expose DealerSend or its employees, servants, agents, subcontractors, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, international governmental organization or other relevant authority (collectively "Sanctions") by reason of the content of the Shipments, any insurance of the Shipments taken out by the Shipper, the Receiver or any other person with an interest in the Shipments, the destination of the Shipments, the intended consignee of the Shipments or the purchaser or end user of the content of the Shipments.
[2] The Shipper or the Receiver warrants in particular, that:
1) Shipments shall not include any goods which appear on any applicable list of prohibited goods as shall be determined from time to time by the United States, the United Nations, the European Union, the country of origin, country of destination and any transit countries;
2) Delivery of its Shipment to the intended consignee will not, in and of itself, contravene any of the prohibitions set forth from time to time by the United States, the United Nations, the European Union, the country of origin, country of destination and any transit countries; and
3) Delivery of this Shipment to the intended consignee will not, in and of itself, result in any funds or economic resources being made available directly or indirectly to or for the benefit of any person entity or body which is listed or designated in any Sanctions or legislation covering Denied Parties as set forth from time to time by the United States, the United Nations, the European Union, the country of origin, country of destination and any transit countries.
[3] The Shipper or the Receiver agrees to provide DealerSend immediately on request with full information about the nature of its Shipment and their intended use, as well as the identities of all parties which have any legal, financial or commercial interest in the Shipment.
[4] DealerSend is entitled to inspect Shipments and, in particular, is entitled to access any data or information contained in any electronic storage medium and DealerSend shall not be responsible for any delay or damage caused as a result of that inspection provided that DealerSend shall take reasonable care in inspecting the Shipment. Where data or information is protected by a password, details of that password shall be provided to DealerSend by the Shipper or the Receiver on request.
[5] The Shipper or the Receiver shall indemnify DealerSend against all loss, damage, fines and expenses whatsoever, including but not limited to exposure of DealerSend, its employees, servants, agents, subcontractors, insurers or re-insurers to any Sanctions arising or resulting from any non-declaration or illegal, inaccurate and/or inadequate declaration in respect of the Shipment by the Shipper, the Receiver or from any other cause in connection with the Shipment for which DealerSend is not responsible.
[6] If it appears, in the reasonable judgment of DealerSend that Shipments (or any activities required in respect of the Shipments by DealerSend or any other person) may expose DealerSend or their employees, servants, agents, subcontractors, insurers or reinsurers to any breach of Sanctions or risk of breach of Sanctions, then:
1) DealerSend may refuse to carry Shipments or alternatively DealerSend may without notice to the Shipper or the Receiver (but as his agent only) take any measure(s) and/or incur any additional expense to carry or to continue the Shipment thereof, and/or abandon the Shipment and/or store the Shipment ashore or afloat, under cover or in the open, at any place, which abandonment or storage shall be deemed to constitute due performance by DealerSend of all of its obligations in respect of that Shipment;
2) The Shipper or the Receiver shall indemnify DealerSend against any additional expense so incurred;
3) The Shipper or the Receiver shall indemnify DealerSend against any and all claims whatsoever brought by any third party in respect of the Shipments; and
4) DealerSend may, without notice to the Shipper or the Receiver, provide any state, country, international governmental organization or other relevant authority with full information about the Shipments, including the identities of all parties which have any legal, financial or commercial interest in the Shipments.
10. Limitation of Liability regarding Delay of Delivery
[1] DealerSend will make every reasonable effort to deliver the Shipment according to their regular delivery schedules, but these schedules are not binding and do not form part of the contract. DealerSend is not liable for any damages or loss caused by delay.
[2] Except to the extent of negligent acts or omissions by DealerSend, Shipper agrees to indemnify and hold harmless DealerSend and its subsidiaries, and their respective directors, officers, employees, and agents from and against all actions, causes of action, liabilities, claims, suits, judgments, liens, awards, losses, and damages, suffered by reason of Shippers’s failure to comply with the GTC.
11. Force Majeure
DealerSend is not liable for any loss or damage arising out of circumstances beyond DealerSend’s control. These include but are not limited to electrical or magnetic damage to, or erasure of, electronic or photographic images, data or recordings; any defect or characteristic related to the nature of the Shipment, even if known to DealerSend; any act or omission by a person not employed or contracted by DealerSend, e.g. Shipper, Receiver, third party, customs or other government official; “Force Majeure” - e.g. earthquake, cyclone, hurricane, storm, flood, fog, radiation contamination, pandemic, war, plane crash or embargo, riot or civil commotion, any information security-related threats including cyber-attacks [“cyber-attacks” shall include – without limitation – (distributed) denial-ofservice attacks or, any form of computer code whether known or unknown, including “electronic possession”, “logic bombs” “viruses”, ”ransomware”, “Trojan horses”, “worms”, “spyware”, “malware”, “drop dead device” and “adware”, which could, in any way, disable, disrupt, harm, impede or modify the performance or functionality of all or any part of any system, program, equipment, network or data], industrial action or disputes.
12. Warranties of shipper or warranties of Receiver
The Shipper or the Receiver shall indemnify DealerSend from liability for loss or damage resulting from Shipper’s or Receiver's failure to comply with the following warranties and representations:
1) All documents and information provided by the Shipper, the Receiver or its representatives are complete and accurate;
2) The Shipment is acceptable for transport under Section 4 above;
3) The Shipment was prepared in secure premises by reliable persons and was protected against unauthorized interference during preparation, storage and any transportation to DealerSend;
4) The Shipment is correctly labeled, addressed and packaged so as to ensure safe transportation with ordinary care in handling;
5) The Shipper or the Receiver has complied with all applicable customs, import, export, data protection laws and regulations, sanctions, embargoes and other laws and regulations; and
6) The Shipper has obtained all necessary consents to provide DealerSend with personal data including Receiver’s data as may be required for transport, customs clearance and delivery.
13. Indemnification
[1] Notwithstanding any other rights of DealerSend, the Shipper shall indemnify DealerSend from any liability for third-party claims resulting from the unintended transportation or delivery of Shipments not comply with Section 4. The contractual liability of DealerSend for its own conduct and that of its agents or subcontractors remains unaffected.
[2] The Shipper undertakes to indemnify DealerSend promptly upon first demand against any loss or damages arising out of any alleged third-party claims and any other loss or damage that DealerSend incurs as a result of an unintended transportation or delivery of Shipments not comply with Section 4 due to misconduct by the Shipper. The indemnity by the Shipper shall also cover the expenses incurred by DealerSend in connection with the provision of information, confiscation by the customs authorities or border seizure which are required by law or have been ordered by a court or a government authority.
[3] DealerSend shall also be entitled to exercise the rights referred to in the paragraph above if it suspects the Shipments not comply with Section 4 and the Shipper fails to comply with DealerSend’s request to supply information.
[4] DealerSend is not obliged to run checks for Shipments not comply with Section 4. However, DealerSend shall be entitled to open a Shipment and to inspect the contents if it suspects that the Shipments not comply with Section 4. In addition to the foregoing, DealerSend has the right to open and inspect a Shipment without notice for security or customs or other valid reasons. Further, DealerSend carries out regular checks in accordance with the applicable statutory aviation security regulations and if goods which may not be transported by air are found, or if there is reason to suspect that these goods ought not to be transported by air, DealerSend shall be entitled to either transport the goods by land or sea, notwithstanding its other rights under Section 3(5), or return such goods to the Shipper at the latter’s expense.
14. Shipper’s Obligations
[1] The Shipper has full responsibility and following obligations:
1) to not request DealerSend to provide services that would cause, directly or indirectly, a violation of any applicable Trade Laws;
2) to prepare and adequately pack the Shipment to ensure safe transportation with ordinary care in handling through an automated system;
3) to (i) label the Shipment adequately, (ii) provide accurate and complete information for customs purposes (such as goods description, tariff classification, value), and (iii) mark the Shipment with a complete name, and true address of the actual Receiver and the Shipper;
4) Shipper retains the obligation for recordkeeping and submission of information and documents relating to Shipper’s Shipments, as required by relevant government authorities;
5) to obtain all necessary consents in relation to personal data provided to DealerSend including Receiver’s data as may be required for transport, customs clearance and delivery, such as email address and phone numbers;
6) to provide any information, and attach to the Shipment any document, as may be required to handle Shipper’s Shipments in compliance with applicable Trade Laws. All information provided by Shipper shall be true, complete and accurate. DealerSend shall have no obligation to check the accuracy and completeness of the documents. If any document is missing, the Shipper shall submit it forthwith upon request and at the latest within five (5) working days. Failing timely receipt, DealerSend may treat the Shipment as an Unacceptable Shipment pursuant to Section 4. If Shipper identifies errors or inaccuracies, Shipper shall promptly notify DealerSend of the error/ inaccuracy;
7) to (i) export classify the goods in the Shipment, (ii) ensure and warrant that the Shipment does not contain Controlled Items and (iii) notify DealerSend immediately in writing, when Shipper has knowledge or reasons to believe that the Shipment contains Controlled Items or does not comply with applicable Trade Laws;
8) to ensure and warrant that the final destination, any known end-user and end-use comply with applicable Trade Laws and that no Shipment will be sent to embargoed destinations or Denied Parties;
9) to ensure and warrant, that (i) Shipper, (ii) if applicable, Shipper’s beneficial owner or any holding company, (iii) Receiver, (iv) the Shipper’s affiliates or any third party contracted by Shipper (e.g. subcontractors), directly or indirectly in conjunction with the Shipment or transaction, is not a Denied Party;
10) Shipper agrees to provide DealerSend immediately upon request by DealerSend with full information about the nature of its Shipment and their intended use, as well as the identities of all parties which have any legal, financial or commercial interest in the Shipment; and
11) to sign a letter of indemnity or similar document upon request of and if deemed necessary by DealerSend for any Shipment. For any such Shipments, the terms of such letter of indemnity will apply and will govern in the case of conflict with these GTC.
15. DealerSend’s Obligations and Rights
[1] The Shipments shall be delivered to the Receiver's address specified by the Shipper, though not necessarily personally to a Receiver named in person. Shipments to addresses with central mail departments shall be delivered to these departments. DealerSend shall transport the Shipments and hand them over to the participating foreign companies for further transportation and delivery to the Receivers in accordance with the usual procedures for parcels in the specific country of destination. It shall be at the discretion of DealerSend to select the type, route, and means of transport or to provide all services by third party transport companies taking into consideration the Shipper’s interests.
[2] Upon application by the Shipper or the Receiver, DealerSend shall carry out an inquiry as to the whereabouts of parcels. Requests for inquiries can only be lodged within the time set out in Section 8(2).
[3] DealerSend shall prepare the relevant import/export documents on the basis of the information and documentation provided by the Shipper and follow any lawful instruction issued by any government authority with respect to the Shipment, including but not limited to detention, inspections or forfeiture.
[4] DealerSend does not assume any liability for the content of the Shipment and the accompanying documents, even if these are prepared by or on behalf of DealerSend upon the Shippers request. The Shipper remains solely responsible for all risks and consequences of importing and exporting goods. This shall apply independently of the grounds on which the dispatch is restricted or prohibited, either by applicable statutory provisions or is restricted or excluded under these GTC or other contractual provisions. Sections 2(3) and 13(2) remain unaffected.
[5] DealerSend does not provide any legal advice or Denied Party screening on behalf of the Shipper.
16. Final Provisions
[1] Any dispute arising under or in any way connected with these GTC shall be subject to the exclusive jurisdiction of the courts of, and governed by the law of, Hong Kong.
[2] The invalidity or unenforceability of any provision of these GTC shall not affect any other part of these GTC.
[3] A person who is not a party to these GTC may not enforce any term of these GTC under any laws purporting to grant such rights which is hereby excluded to the extent permissible but this does not affect any right or remedy of a third party which exists or is available apart from such laws.
The Parties now agree that:
1.Services
[1] DealerSend provides international and domestic door-to-door express and postal transportation of documents and parcels (the "Services"). Customer agrees to purchase the Services from DealerSend and DealerSend agrees to provide the Services to Customer as indicated in the Rates Sheets and as further described in General Terms & Conditions.
“Customer” means the company signing this contract or any affiliate of it in which its ultimate parent company owns directly or indirectly more than 50% of the shares of such affiliate. “DealerSend” means Dealer Send Logistics Limited, and any other companies affiliated with DealerSend Group (including their subsidiaries, designated agents and subcontractors) which provide the Services hereunder.
[2] All Services shall be provided upon DealerSend Terms and Conditions of Carriage for international express, postal services and Hong Kong domestic in force from time to time [the current version of which is attached to this Agreement as These general terms and conditions (“GTC”)] (collectively “DealerSend Conditions”), which are deemed to be incorporated into this Agreement.
[3] Any loss or damage that occurs during the provision of Services or value-added services (where applicable) shall be deemed to have occurred during the transportation portion of the Services, and therefore is subject to DealerSend Conditions. Customer hereby expressly acknowledges and confirms that this Agreement shall be personal to Customer and the Services shall be provided by DealerSend for the sole and exclusive personal use of Customer.
[4] Customer hereby expressly warrants and undertakes that it shall not in any event or circumstances resell or offer for sale the Services to any third party. If DealerSend suspects that any resale or offer for sale of the Services by Customer to any third party has occurred or is likely to occur, DealerSend shall be entitled to suspend Customer’s account with DealerSend and the provision of any or all of the Services immediately. Any breach of or non-compliance with this Section 1(4) shall be deemed to be a material breach of this Agreement which is not capable of remedy and will entitle DealerSend to terminate this Agreement immediately.
2. Rates, Surcharges And Payment
[1] Rates
1) The rates are set out in the Rates Sheets (attached). Rates are exclusive of valueadded tax, sales taxes (or equivalent), customs duties, surcharges, fines or interest thereon, and other government taxes imposed with respect to the provision of the Services. Customer agrees to pay, indemnify and hold DealerSend harmless from and against all duties, taxes and other levies, together with penalties, fines or interest thereon, imposed by taxing or other authority with respect to the storage, transportation and customs declaration of the Shipments. A fee may be charged for advancing funds to pay duties and taxes on Customer’s behalf.
2) The annual general rate increase applicable to DealerSend's general customer base in Hong Kong will be applied to the rates.
3) Unless otherwise expressly specified, the rates are valid for Services during the hours of standard operation designated by DealerSend and shall exclude public holidays and weekends.
4) The rates are based on the shipment volumes or revenue qualifier provided by Customer to DealerSend prior to this Agreement. In the event of a shortfall on the projected volumes or on the committed revenue (for all or for a specific Service) or in the event of a substantial change in the volume, weight or destination mix, DealerSend shall have the right to adjust the relevant rates upon five (5) days' written notice. Notwithstanding the aforesaid, DealerSend may at any time during the term of this Agreement adjust the rates by providing not less than five (5) days’prior written notice to Customer.
5) In the event that the inflation rate of Hong Kong would exceed 5%, DealerSend shall be entitled to adjust the rates upon five (5) days’ prior notice.
6) DealerSend’s shipment charges are calculated according to the higher of actual or volumetric weight per piece and any piece may be re-weighed and re-measured by DealerSend to confirm this calculation. DealerSend calculates volumetric weight (in Kilograms) by dividing the shipment volume (in Cubic Centimeters) by 5000 (or Length in cm × Width in cm × Height in cm ÷ 5000) for Express Service & Postal Service (DG) and volumetric weight (in Kilograms) by dividing the shipment volume (in Cubic Centimeters) by 6000 (or Length in cm × Width in cm × Height in cm ÷ 6000) for Postal Service (Non-DG). DealerSend reserves the right to modify this formula upon written notice to Customer.
7) The rates are based on Customer’s commitment to use DealerSend’s e-Com shipping tools, such as DealerSend Shipping Portal and EDI (transmission of shipment data through electronic data interchange) (“eCom Tools”). Customer shall not require the manual processing, recording, labelling or invoicing of shipments without the prior written consent of DealerSend. Resource, manpower, travel and related costs to modify and test eCom Tools arising from Customer-initiated requirements or requests (i.e. Customer system modification and testing, change in Customer providers or payment houses) shall be chargeable to Customer on a cost recovery basis. Customer will be given access to DealerSend’s webbased eCom invoicing tool (such as MyBill) that permits Customer to view invoices. As part of DealerSend’s commitment to environment-friendly practices, DealerSend is eliminating the printing and dispatch of hard copy paper invoices with intent to reduce carbon footprint. To this effect, unless legally required under local laws and regulations, hard copy invoices will only be provided at the request of Customer upon payment of an additional processing fee.
8) DealerSend reserves the right to impose exchange rate surcharge to recover costs associated with exchange rate fluctuation if the monthly exchange rate used by DealerSend fluctuates by more than 10% against the US Dollar from the exchange rate effective on the date of agreement or from the most recent exchange rate adjustment to Customer, then DealerSend will at least provide five (5) days’ advance written notice to Customer about the exchange rate surcharge percentage of its total billed amount. This exchange rate surcharge percentage will be applicable to all invoices issued thereafter until further notice.
9) Where rates are quoted in currency other than Hong Kong Dollars, the exchange rate from local major banks prevailing at the time of billing shall apply for invoicing purposes. In the event that the currency of a country for which the rates quoted devalues in excess of 5% within any 90 day period at local major bank exchange rates identified by DealerSend, DealerSend shall be entitled to immediately adjust the rates. Any such adjustment shall be commensurate with the rate of devaluation.
10) For services which permit high-value shipments, for security reasons, Customer shall inform DealerSend in advance of any Shipment with a value exceeding EUR500,000 for shipments insured through DealerSend and EUR1,000,000 for uninsured shipments. Information submitted to DealerSend by Customer related to this request shall not be deemed to be a special declaration of value or interest and shall not place upon DealerSend any special duty of care or affect DealerSend’s liability hereunder.
[2] Surcharges
1) Fuel Surcharge A fuel surcharge may be applied or the rates may be adjusted in accordance with the methodology described on the relevant websites. The level of the fuel surcharge is indicated in all invoices.
2) Governmental and Regulatory Increases Any additional governmental or regulatory organisation practices, surcharges, procedures or regulations which result in increased cost to DealerSend (e.g. IATA Security surcharges) will be passed on proportionately to Customer upon five (5) days’ written notice.
3) Emergency Situations DealerSend reserves the right to make emergency surcharges to recover costs associated with temporary emergency situations beyond DealerSend's control which could not be reasonably anticipated at the commencement of this Agreement. All such surcharges will be temporary and will apply to DealerSend's general customer base. Customer will receive five (5) days’ notice by the relevant websites of any emergency surcharge, describing the reasons for such surcharge.
4) Demand Surcharges One or more Demand Surcharges will apply to shipments during a period of high demand. A period of high demand is to be determined by DealerSend at its own discretion, but may include a time of high demand for shipping services or a period with high operational cost. Details regarding the application of Demand Surcharges are set forth at DealerSend Announcements and will be subject to change upon prior notice. Demand Surcharges apply cumulatively if a shipment and/or individual pieces meet more than one of the specified criteria. Demand Surcharges apply in addition to the rates and any other applicable charges.
[3] Invoicing and payment
1) Invoicing may be done electronically (by e-mail). Invoices may be issued weekly or monthly at the absolute discretion of DealerSend. All charges for Services will be billed in Hong Kong Dollar to Customer at its address indicated above or to such other entity or Customer location as may be agreed in writing by the parties from time to time. Invoice shall be payable within fourteen (14) days from the invoice date. Duties and taxes paid by DealerSend shall be reimbursed by Customer within seven (7) days from invoice date. All sums due under this Agreement shall be paid without set-off, deduction, restriction or condition.
2) In the event there is any query on an invoice, then only the disputed item on the invoice shall be held from payment and all other amounts owing and not disputed are to be paid on the due date. Queries on invoices must be reported to DealerSend within five (5) days of invoice date. DealerSend prefers to put in place direct debit facilities to receive payments on the due date. If any sum is not paid by the due date, for reasons other than a good faith dispute, DealerSend shall, without prejudice to any other right or remedy, be entitled to require the payment in advance for any Shipments, suspend the provision of any or all of the Services, exercise a general and particular lien on all Shipments in DealerSend’s possession with a right to sell and/or dispose of the same, and/or charge interest without further notice at 2% per month calculated and accrued daily to the balance outstanding and overdue (whether before or after judgment). Customer agrees to reimburse DealerSend all reasonable costs (such as external collection agency, legal fees and other related expenses) incurred by DealerSend in connection with recovering amounts owing from Customer.
3) Customer is responsible for the payment of rates, surcharges and duties owed for Services provided by DealerSend or incurred by DealerSend on behalf of Customer, receiver of the Shipment or any third party, including for Shipments carried under Customer’s Account number. Any entity which will use Customer’s account number(s) with DealerSend is deemed to enter into a transportation contract with DealerSend as agent for and on behalf of Customer. All Services to entities using Customer’s account number(s) with DealerSend will be provided under the provision of this Agreement (for the purposes hereof, Customer shall be deemed to be the Shipper in respect of any Shipment).
3. Duration And Termination
[1] This Agreement shall be in effect from the date DealerSend receives the signed contract and shall continue for an indefinite period of time until terminated in accordance with Section 3(2).
[2] Without prejudice to any accrued rights and remedies under this Agreement, either party shall be entitled to terminate this Agreement:
1）Immediately by written notice upon the insolvency or incapacity of the other party or upon the other party entering into any arrangement with its creditors or having a receiver or trustee appointed over any of its assets, or suffering any distress or execution to be levied on all or any substantial part of its property, assets and undertaking, or ceasing or threatening to cease carrying on business, or becoming unable to pay its debts as they fall due;
2）Immediately by written notice upon the other party committing a material breach of the terms of this Agreement which (i) is not capable of remedy, or (ii) if capable of remedy shall not have been remedied within five (5) days of the other party having received a written complaint specifying the nature of such breach;
3）At any time without cause upon advanced written notice period of five (5) days.
[3] In the event Section 3(2) shall apply to Customer, all amounts shall be immediately due and payable by Customer for the Services provided to it.
4. Confidentiality
[1] In connection with the formation and performance of this Agreement, the parties may share and disclose to each other certain non-public confidential information, the disclosure of which to third parties would be damaging, such as rates, business plans and processes, any data relating to Customer’s clients or employees, business, commercial and financial information and any information marked “Confidential” and/or “Proprietary” (“Confidential Information”).
[2] Both parties undertake (a) to use the Confidential Information only in the performance of this Agreement, (b) not to disclose it to any third party except in the performance of this Agreement, and (c) to treat the Confidential Information with the same degree of care with which it treats its own confidential information of like importance.
[3] The restriction in this Clause shall not apply to any Confidential Information:
1) Which is or comes into the public domain without breach of this Agreement;
2)Which, when disclosed, was already known to the recipient without restriction;
3)That the other party develops independently of any information and material that is disclosed to it under the provisions of this Agreement;
4)Which is subsequently disclosed to the recipient by a third party at liberty to disclose it; or
5)Which disclosure is required to be made by law or any competent authority, provided that where practicable and lawful, the party required to make such disclosure promptly notifies the other party.
[4] Neither party will make any announcement with respect to this Agreement without the prior consent of the other party, unless for the purposes of satisfying the requirement of a law, regulatory body or securities exchange to which other party is subject.
5. Governing Law And Venue
The governing law of the Agreement shall be the substantive law of Hong Kong and the courts of Hong Kong shall have exclusive jurisdiction.
6. Credit Limit
[1] A credit limit in such amount as determined by DealerSend at its absolute discretion may be allocated to Customer upon DealerSend’s review. DealerSend reserves the right to vary such credit limit at any time during the term of this Agreement without any reason or cause at its absolute discretion with or without prior notice to Customer.
[2] In the event the credit limit allocated to Customer is exceeded, Customer shall upon notice make payment of the amount over and above such credit limit within three (3) working days of such notice. Failure to make payment will result in Customer’s account being suspended, at which time all outstanding amounts will become immediately due and payable.
[3] DealerSend reserves the right not to accept shipments from Customer when the credit limit allocated to Customer is exceeded.
7. Customer’S Responsibilities
[1] Customer shall be solely responsible for obtaining all required licences, permits and other approvals prior to tendering its Shipments to DealerSend for carriage.
[2] Without affecting the generality of the “Shipper’s Representations, Warranties and Indemnities”section in DealerSend Conditions, Customer shall indemnify and hold DealerSend harmless from and against any and all claims, expenses, losses, damages or other liabilities (including but not limited to reasonable legal costs) arising out of or relating to (i) Customer’s failure to obtain required licences, permits or other approvals, (ii) loss, damage or injury caused to DealerSend or any third party personnel, equipment or premises as a result of the unusual or hazardous nature of any shipment, or Customer’s failure to comply with air cargo and/or aviation security requirements stipulated by all governmental or competent authorities (including but not limited to the Civil Aviation Department of the Government of Hong Kong), and (iii) any penalties, fines or other administrative charges or sanctions imposed on DealerSend by reason of Customer’s failure to completely and accurately comply with all IATA and other applicable regulations governing the transportation of dangerous goods.
8. Entire Agreement And Assignment
[1] This Agreement and its General Terms & Conditions constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes any other prior verbal or written agreement. This Agreement cannot be amended or modified except by a written instrument signed by the parties’ duly authorized signatories.
[2] Neither party shall assign this Agreement without the express prior written consent of the other party, provided that nothing herein will prevent DealerSend from assigning this Agreement to another company affiliated with DealerSend Group.
9. Third Parties’ Rights
[1] Except as expressly provided in Section 9(2), the parties to this Agreement do not intend that any term of this Agreement shall be enforceable by any person who is not a party to this Agreement.
[2] The parties agree and acknowledge that each of the companies affiliated with DealerSend Group (including their subsidiaries, designated agents and sub-contractors) which provides the Services under this Agreement will be entitled to enforce or enjoy the benefit of any term of this Agreement (including without limitation any indemnity, limitation or exclusion of liability) conferred directly upon it by virtue of the Contracts (Rights of Third Parties) Ordinance (Cap.623).
[3] Notwithstanding the fact that a person who is not a party to this Agreement will have the right to enforce any term of this Agreement under Section 9(2), the parties to this Agreement reserve the right to rescind or vary this Agreement or vary any term hereof without the consent of such person.
10. Security
Customer acknowledges that it is responsible for all activities conducted through its account, even if they are conducted by unauthorized persons. Customer accepts that in no event DealerSend, its affiliates or agents shall be liable for any incidental, indirect, exemplary, punitive and consequential damages, lost profits, or damages resulting from the misuse of or the use of Customer’s DealerSend account by unauthorized persons, whether based on warranty, contract, tort, delict, or any other legal theory, and whether or not DealerSend is advised of the possibility of such damages. Customer hereby indemnifies DealerSend to the fullest extent from and against any and all liabilities, costs, demands, causes of action, damages and expenses arising out of or in any way related to the use by unauthorized persons or misuse of Customer’s DealerSend account.