By requesting or accepting services from VYUH, the Client agrees to the following terms and conditions of services (“Terms and Conditions”).
“VYUH” means VYUH Logistics Pvt. Ltd., and its subsidiaries and affiliates.
“Client” means any Person/Company for whom, for whose benefit, or at whose request, VYUH directly or indirectly renders services, including all of the Person’s / Company’s agents, contractors, and/or other representatives, including shippers, importers, exporters, notify parties, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, holders and assignees of Transport Documents, Storage Documents or other commercial documents, and other similar parties. Client shall give copies of these Terms and Conditions to all such Persons/Companies.
“Governmental Unit” means any applicable nation, state, province, district, county, municipality, public corporation, or any court, tribunal, department, subdivision, agency or instrumentality of any of the foregoing.
“Laws” means each present and future law, statute, code, rule, regulation, ordinance, rule of law, principle of law, order, decree, judgment, guidance, or the equivalent enacted, ratified, adopted, promulgated, or issued by an applicable Governmental Unit, and all international conventions ratified by the India or otherwise mandatorily applicable under the laws of the India.
“Person” includes an individual, trust, estate, partnership, association, business or non-profit organization, Governmental Unit, or other legal entity.
Terms such as “liability”, “obligation”, and “responsibility” include every duty to pay money, deliver value, provide services, performance act, or refrain from performing an act.
The term “third party” includes each of the following, by whomever chosen or compensated: carrier, truckman, cartman, lighterman, forwarder, ocean transportation intermediary, ocean freight forwarder, non-vessel operating carrier, customs broker, agent, warehouseman, and each other Person/company to whom goods are entrusted for transportation, carriage, cartage, drayage, handling, delivery, storage, distribution, clearance, entry, or other service or activity.
Terms such as “includes” and “including” are not limiting. All references to documents include documents in paper or electronic form. The captions are for convenience only and are not part of these Terms and Conditions. These Terms and Conditions shall be construed without regard to any presumption or rule requiring that they be construed against the Person causing all or part of them to be drafted. If these Terms and Conditions conflict with the terms of a Transport Document or Storage Document issued by VYUH, the Transport Document or Storage Document shall prevail. If any part of these Terms and Conditions is held invalid or unenforceable in a jurisdiction by a final, non-appealable judgment, the judgment does not affect the validity or enforceability of any other part of these Terms and Conditions in that jurisdiction or of any part of these Terms and Conditions in another jurisdiction.
“Transport Document” means a bill of lading, waybill, forwarder’s cargo receipt, contract of carriage, or other document issued by VYUH evidencing the receipt of goods for carriage.
“Storage Document” means a warehouse receipt, storage agreement, or other document evidencing the receipt of goods for storage, distribution or other handling.
2. VYUH’s Role
VYUH acts as the direct agent of Client in all cases, except to the extent VYUH agrees to acts as a carrier.
3. Choosing Routes or Agents
Unless VYUH otherwise agrees, VYUH has complete freedom in choosing the means, routes, and procedures to be followed in handling, transporting, loading, unloading, storing, clearing, entering, delivering, distributing, or otherwise dealing with the goods, and in choosing the third parties to perform these services.
All such third parties shall be considered as the agents of Client. Advice by VYUH to Client that a particular Person has been selected to render services shall not be construed to mean that such Person will render such services.
4. Quotations Not Binding
Quotations by VYUH are for informational purposes only and are subject to change without notice. No quotation binds VYUH unless VYUH agrees to handle or transport the goods at specific rates and payment terms.
5. Client’s Duties
(a) Client must do the following:
(1) provide and disclose all documents and information required to handle, transport, load, unload, store, clear, enter, deliver, distribute, and otherwise deal with goods (including commercial invoices in proper form and number, other documents necessary or useful in the preparation of the customs entry, and such further information to enable VYUH to perform services, including the dutiable value, weights, measures, number of pieces, packages, cartons or containers, condition of the goods, classification, country of origin, genuineness of the goods and any mark or symbol associated with them, Client’s right to export, import and/or distribute the goods, and the admissibility of the goods, pursuant to Law, all in the languages of and as may be required by the Laws of the country of origin or of destination); (2) immediately advise VYUH of any errors, discrepancies, incorrect statements, or omissions in any document or other information; (3) review all documents, declarations, security filings, and other submissions prepared or filed with any Governmental Unit or any other Person; and (4) maintain all records required under the prescribed country’s rules & regulations, or other applicable Law, unless otherwise agreed.
(c) Client represents, warrants and covenants the accuracy, sufficiency, and completeness of all documents and information furnished to VYUH by or for Client. VYUH has no duty to inquire into the accuracy, sufficiency, or completeness of any documents or information and in no instance shall be charged with information that Client fails to give in writing. VYUH may rely on all documents and information furnished to VYUH. If Client fails to perform any obligation, VYUH may use its judgment in connection with the goods, with principal responsibility still lying with the Client.
(d) Client represents, warrants and covenants that it is and will remain in compliance with all applicable Laws, including anti-corruption Laws and that the information the Client provides to VYUH in connection with Client’s compliance with all such applicable Laws is true and complete. Client shall also comply with all applicable Laws of any country or other jurisdiction to, from, through, over or in which any goods may be carried, including all applicable Laws relating to the marking, packing, carriage, storage, clearance or delivery of the goods. Client represents, warrants and covenants that the export jurisdiction and classification of all goods is correct and that it shall immediately notify VYUH in writing of any changes to such information. Client further represents, warrants and covenants that all goods are properly marked, addressed, and packaged to withstand ocean transport, air transport, and ground transport. VYUH is not liable to Client for loss, damage, expense or delay due to the Client’s failure to comply with these Terms and Conditions. Client shall indemnify and hold VYUH harmless against any and all claims, losses, or damages arising from the conduct of Client or any of its officers, directors, employees, agents, owners or other Persons working for or with Client under these Terms and Conditions that constitutes a violation of the Client’s obligations, representations, warranties and covenants contained herein.
(e) Unless otherwise agreed, Client shall pay all duties and other Customs charges by clearing house.
(f) Unless otherwise agreed, VYUH has no obligation to take any pre- or post-Customs release action, including obtaining binding rulings, advising of liquidations, filing of petitions and/or protests, etc.
(g) Where VYUH prepares and/or issues a Transport Document or Storage Document, VYUH has no obligation to specify thereon the number of pieces, packages and/or cartons, etc., or the condition of the goods.
Unless VYUH otherwise agrees, VYUH has no obligation to procure insurance. The primary responsibility to procure relevant applicable insurance(s) lies with Client. In case of any claims arise due to non-availability of any Insurance, VYUH shall be shall not be responsible in anyway whatsoever. If VYUH agrees to procure insurance, VYUH has the right to select the insurance companies and underwriters. The insured shall have recourse against the insurer only and not against VYUH. Client is responsible for all insurance premiums and for VYUH’s charges, in case the insurance(s) are arranged by VYUH on Client’s request.
7. Limitation of Liability for Loss, Damage, Expense or Delay
(a) VYUH has no obligations other than those set forth in these Terms and Conditions or in any Transport Document or Storage Document issued by VYUH. Except as specifically set forth in these Terms and Conditions, VYUH makes no express or implied warranties in connection with its services.
(b) In the absence of proven negligence or other fault by VYUH while the goods are in the physical custody of VYUH, VYUH has no liability whatsoever for any loss, damage, expense or delay.
(c) Subject to the further limitations of liability in sub-paragraphs (d) and (e),
VYUH’ liability for any loss, damage, expense or delay resulting from the proven negligence or other fault of VYUH is limited as follows:
(1) if the claim arises from VYUH’ Customs brokerage services, the lesser of Rs. 5,000 (INR Five Thousand Only) per entry or the amount of brokerage fees paid to VYUH for the entry; (2) if the claim relates to transportation services covered by a Transport Document or storage, distribution or handling services covered by a Storage Document issued by VYUH, the monetary limits on VYUH’ liability provided for in the Transport Document or Storage Document; or (3) if clauses (1) and (2) do not apply, the lesser of Rs. 5,000 (INR Five Thousand Only) per shipment or the commercial invoice value of the shipment. However, the applicable amount of any partial loss, damage, expense or delay shall be adjusted pro-rata.
(d) Client acknowledges that VYUH and third parties to whom goods are entrusted limit their liability for loss, damage, expense, or delay. Client may obtain an increase in the liability of VYUH above the limits set forth in subparagraph (c) if VYUH agrees to the request before it renders any services and the agreement sets forth the limit of VYUH’ liability and the additional compensation received or paid for the added liability. Otherwise, any valuation that Client places on the goods shall be considered for export or customs purposes only.
(e) As a further limitation on VYUH’s Liability, Client agrees that the maximum aggregate of VYUH’s Liability to client for any charges, claims, damages, liabilities, judgments, costs, expenses, payments or losses of any kind during any calendar year that are not already limited by other provisions of this Paragraph 7, whether or not the same arise out of or relate to services performed by VYUH, shall be no more than the lesser of the following: (i) Rs. 15,000 (INR Fifteen Thousand Only); (ii) actual, direct damages; OR (iii) the aggregate service charges paid by client to VYUH during the same period.
(f) As a further limitation on VYUH’s Liability, Client agrees that VYUH shall in no event be liable for any indirect, incidental, consequential, punitive, statutory or special damages, including lost profits, income or opportunity, even if VYUH is on notice of the possibility of any such damages or for the acts or omissions of any other person and however arising, including for breach of contract, tort, negligence, willful or intentional acts or omissions.
(g) The limitations and exclusions in this Paragraph 7 apply even if they cause any remedy otherwise available to fail of its essential purpose and without regard to VYUH’s performance of failure or delay of performance.
(h) Goods may be entrusted to third parties subject to all conditions as to limitations of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions appearing in Transport Documents, Storage Documents, receipts, tariffs, or other documents issued by such Persons. VYUH has no additional liability for any loss, damage, expense, or delay caused by the acts or omissions of third parties.
8. Limitation of Actions
(a) With respect to any act or omission by VYUH, Client must present to VYUH at VYUH office (1) a preliminary notice of claim within seven (07) days after the loss or incident giving rise to the claim and (2) a formal written sworn proof of claim within thirty (30) days from the date of loss or incident giving rise to the claim. Failure to satisfy these requirements is a complete defense to any suit or action by Client, to the extent applicable Law does not mandatorily provide otherwise.
(b) As an additional requirement, any suit to recover on a claim against VYUH must be commenced within one (1) year after the date of delivery or release of the goods, the date when the goods should have been delivered or released, or the date when any other loss, damage, expense, or delay first arose.
Client shall indemnify VYUH and hold VYUH harmless from and against all charges, claims, damages, liabilities, judgments, costs, expenses, payments or losses of any kind (including for purchase price, freight, storage, demurrage, detention, duties, taxes, fines, penalties, incidental, indirect, consequential or exemplary damages, and VYUH’ litigation expenses and reasonable expenses, including attorneys’ fees) arising from or related to any one or more of the following:
(a) any breach of any representation, warranty, covenant, agreement, undertaking, consent, or waiver by Client;
(b) any failure of Client to pay or perform when due its obligations to VYUH or to any other Person (including any Governmental Unit, carrier, vendor, holder or assignee of any Transport Document, Storage Document, or other commercial document);
(c) Client’s violation of any Law or failure to disclose, correct, or complete any entry, export, security or other data or documents;
(d) any other claim by any such other Person, in each case, even if not due to any negligence or other fault of Client. If any action, claim, suit or proceeding is brought against VYUH, VYUH shall give notice in writing to the Client by mail to the address on file with VYUH. At Client’s expense VYUH may employ attorneys and other professionals of its own choice in connection with any indemnified matter. Client’s indemnity obligation in this paragraph shall not apply to the extent a court of competent jurisdiction enters a final, non-appealable judgment, specifically finding that the charge, claim, damage, liability, judgment, cost, expense, payment or loss was directly and approximately caused by VYUH’ gross negligence or willful misconduct.
10. General Lien on any Property
VYUH has a general lien on any and all property (and documents relating thereto) now or hereafter in VYUH’ possession, custody or control or en route as security for all existing and future indebtedness and obligations of Client to VYUH. This lien is in addition to any other rights and remedies VYUH may have under other agreements or applicable Law, and shall survive delivery or release of any property. VYUH has the right to withhold delivery or release of any property if Client is in breach of any indebtedness or obligation to VYUH, even if not related to such property. If any such indebtedness or obligation is unsatisfied, VYUH may, in addition to all other rights and remedies under other agreements and/or applicable Law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from the sale or other disposition, after deduction for all sums owed to VYUH, shall be transmitted to Client, and Client shall be liable for any deficiency.
11. Payment and Credit Terms
VYUH’ standard payment terms require receipt of cash before performance of services. VYUH may in its sole discretion extend credit to Client. The amount and terms of credit are subject to VYUH periodic review. VYUH may in its sole discretion increase, decrease, suspend or revoke credit at any time for any reason and without advance notice. Except to the extent VYUH otherwise agrees, VYUH has no obligation to make or incur any expense, guarantee or advance for any purpose.
12. Compensation of VYUH
The compensation of VYUH for its services and advances shall be included with and is in addition to the rates and charges of all third parties to handle, transport, load, unload, store, clear, enter, deliver, distribute or otherwise deal with the goods, and shall be exclusive of any brokerage, commissions, dividends or other revenue received by VYUH from insurers or other Persons. Client shall pay all costs, expenses and fees (including reasonable attorneys’ fees) incurred by VYUH in connection with (a) the enforcement of payment or performance of any indebtedness or obligation of Client (including by any action or participation in, or in connection with, a bankruptcy or insolvency proceeding, wherever pending) or (b) any dispute between VYUH and Client or any other Person/Company. All amounts owed to VYUH must be paid in the lawful currency specified in VYUH’s invoices in immediately available funds, without abatement, counterclaim, set-off, recoupment, and free and clear of, and without any deduction or withholding for, any taxes, duties, confiscation, detention, or other matters. If any amount is not paid when due, it shall accrue interest until paid at two percent (2.0 %) per month (24.0 % per annum).
13. Sale of Perishable Goods
Perishable goods or live animals for which Client gives no instructions for disposition may be sold or otherwise disposed of without any notice to the Client, owner, or consignee, and payment or tender of the net proceeds of any sale after deduction of charges is equivalent to delivery of the goods. If for any reason a shipment is refused or remains unclaimed at any place or is returned, the Client must still pay VYUH for all charges and expenses in connection with the goods. Nothing obligates VYUH to forward, enter or clear the goods or arrange for their disposal.
14. Force Majeure
VYUH is not liable for loss, damage, expense, delay, or non-performance resulting in whole or in part from circumstances beyond the control of VYUH, including:
(i) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster;
(ii) war, hijacking, robbery, theft or terrorist activities;
(iii) incidents or deteriorations to means of transportation;
(v) civil commotions or riots;
(vi) defects, nature or inherent vice of the goods;
(vii) acts, breaches of contract, or omissions by Client or any other Person who may have an interest in the goods;
(viii) acts by any Governmental Unit, including denial or cancellation of any import, export or other necessary license; or
(ix) strikes, lockouts, slowdowns or other labor conflicts.
15. Data Confidentiality
Client represents, warrants and covenants that it complies with all applicable privacy and data protection Laws with respect to information (“Client Data”) about contacts or clients of Client or about other Persons that Client provides to VYUH to enable VYUH to perform services. With respect to Client Data, Client acts as a “data controller” or similar term under applicable Law. Client further represents, warrants and covenants that it has obtained the proper consent from all data subjects to the disclosure and transfer of Client Data to VYUH. In providing services to Client, VYUH may be required to share Client Data with Governmental Units and may process Client Data and thus act as a “data processor” or similar term under applicable Law with respect to such data and will process Client Data in accordance with lawful instructions from Client. VYUH may use Client Data as part of its Client account opening, general administration process (e.g., in order to carry out compliance, financial checks, invoicing, or debt recovery), and otherwise in performing services. The information may be transferred to or accessible from VYUH’ offices around the world.
16. Intellectual Property
VYUH’ intellectual property provided, demonstrated or used in connection with any services, including databases, software, web pages, programs, processes and procedures, reports, manuals, presentations, patents, trademarks, copyrights, trade secrets, service marks, know-how and any other similar rights or intangible assets recognized under applicable Law (all of the foregoing, including source codes and similar information, “Intellectual Property”),was developed and maintained at great expense, is of great value to VYUH, is confidential and proprietary, and shall remain the sole and exclusive property of VYUH at all times. Without VYUH’ prior written consent, Client shall neither directly nor indirectly attempt to or actually disclose, use, re-create, duplicate, decode, alter, change, disassemble, decompile, or reverse engineer any Intellectual Property. Client acknowledges and agrees that a violation of any of the foregoing shall cause irreparable harm to VYUH.
17. Governing Law; Consent to Jurisdiction and Venue
These Terms and Conditions shall be construed according to the Laws of Govt. of India, without regard to conflict of law principles. Client irrevocably consents to non-exclusive jurisdiction and venue for all proceedings related to disputes involving Client and VYUH in the high or state courts sitting in Mumbai, India. Client irrevocably consents to the commencement and transfer of all proceedings to such courts. Client also irrevocably consents to the commencement and to the transfer of venue in any action to any other venue in which VYUH is party to an action brought by itself or another Person. Client waives all defences based on inconvenience of forum in all actions commenced in or transferred to the venues agreed to above.
Notwithstanding any course of dealing, course of conduct, course of performance, or usage of trade, (a) whenever reference is made to the VYUH’s agreement, acceptance, approval or consent, even if not specifically so stated such agreement, acceptance, approval or consent is not effective unless in writing and signed by a duly authorized person of VYUH,
(b) neither failure nor delay by VYUH to exercise any right, remedy, power, or privilege operates as a waiver,
(c) no single or partial exercise of any right, remedy, power, or privilege by VYUH precludes any other or further exercise thereof or the exercise of that or any other right, remedy, power, or privilege,
(d) no amendment, modification, rescission, waiver or release of all or part of these Terms and Conditions, any Transport Document, or any Storage Document is effective without the VYUH’s specific prior written approval. VYUH may from time to time change these Terms and Conditions. The applicable Terms and Conditions can be found on VYUH’s website, WWW.VYUH.WORLD, are effective fifteen (15) days after such publication, and may differ from the pre-printed terms. In the event of a conflict between these Terms and Conditions and the updated version on VYUH’s website in effect on the date that VYUH commences services, the updated version controls.