Except where the parties have a separate service agreement with the terms and conditions of service, in which case the terms and conditions of the separate agreement shall prevail, the following terms and conditions shall apply to services provided by the following Operating Entities of Kuehne + Nagel (hereinafter KUEHNE+NAGEL) in Mexico:
Kuehne + Nagel, S.A. de C.V.
Kuehne + Nagel Forwarding, S.A. de C.V.
1° Object. KUEHNE+NAGEL undertakes to provide the Client the services of international transport of goods by sea, air and /or land, or related services for example, but not limited to customs clearance or added values (hereinafter "the Services"), with respect to the Client's Products (hereinafter, "the Products"). For its part, the Client undertakes to pay for the Services the rates specified in the respective quote.
2º Operational Assumptions. The Services are based on the assumptions and/or requirements of the Client, so the Client undertakes to provide KUEHNE+NAGEL with accurate, truthful and timely information. The Client should inform KUEHNE+NAGEL if the assumptions or estimates change.
3º Characteristics of the Products. The Client declares that the Products require normal, standard (non-specialized) care in the logistics industry. The Client acknowledges and accepts to have the prior express authorization of KUEHNE+NAGEL so that the Products can be transported, according to the guidelines of each line and / or the manuals that measure the degree of dangerousness / flammability of each Product, according to the IATA and / or FIATA Rules and other guidelines applicable to the case. It will not be understood as a breach by KUEHNE+NAGEL that these guidelines prohibit the transportation or handling of said Products. All Products shall be the property of the Client or its supplier and title shall not be transferred to KUEHNE+NAGEL, except in case of non-compliance with payment obligations.
4º Additional Services. The Client may request from KUEHNE+NAGEL additional, extraordinary or special works, other than the provision of the contracted Services, which will be quoted separately and agreed in writing between both Parties. KUEHNE+NAGEL reserves the right to refuse the provision of additional services or Services on products other than the Products.
5º General Rules to the Provision of Services. The Services are not qualified as "specialized", that is, of materials, waste, remnants and hazardous wastes, bulky or heavy objects or other substances or goods, for the transport, loading and storage of which the Client is aware and acknowledges that special permits are required from the competent governmental authorities; likewise, it is not a subcontracting of specialized services.
6º Payments. Payment terms should be as approved by KUEHNE+NAGEL. Any expenses, expenditures and/or extraordinary costs that KUEHNE+NAGEL must make during the provision of the Services derived from any breach by the Client, must be covered and/or reimbursed exclusively by the Client. The services that are carried out after the cancellation and / or that exceed the limit of the maximum amount invoiced as a line of credit granted will be handled Cash on Delivery (COD), that is, payment on delivery or counter-delivery. Therefore, certain shipments will be released only with prior payment of freight and expenses as applicable; invoices for expenses associated with the return of the container (such as delay and detention costs) must be paid within 15 (fifteen) days of the invoice date. These invoices will be integrated into the credit granted by KUEHNE + NAGEL. In case of non-payment, future services will only be released after payment of freight and expenses described herein as applicable; likewise, KUEHNE+NAGEL reserves the right not to continue with the provision of the service in case of non-payment.
7º Obligations of KUEHNE+NAGEL. Notwithstanding any provisions to the contrary contained in any other clause and/or annex and/or document, the Client expressly accepts and acknowledges that, in any case, the liability of KUEHNE+NAGEL shall be subject to the following: (i) KUEHNE+NAGEL shall be liable for breaches of its obligations, unless such breaches arise from causes not attributable to KUEHNE+NAGEL (such as acts of God, force majeure or breaches of the Client), nor of the fault or negligence of the Client's employees or workers, or of defects in the Products, and in accordance with the limits set forth in this clause; (ii) when KUEHNE+NAGEL carries out the process of filling the containers, KUEHNE+NAGEL is responsible for damages to the Products that are directly caused by KUEHNE+NAGEL, its employees, or suppliers, provided that such damages arise from the fault, intent or negligence of KUEHNE+NAGEL or its employees or suppliers. There shall also be no liability for this concept attributable to KUEHNE+NAGEL, if such violation has been carried out by mandate of any authority. In the event that the Client is responsible for both the filling of the containers and the affixing of the security seals, the responsibility of KUEHNE+NAGEL shall be limited to the containers and the inviolability of the seals. (iii) KUEHNE+NAGEL is responsible only for the Services and Products to the extent indicated to it by the applicable BL and in accordance with the limits set out in this clause; (iv) KUEHNE+NAGEL in no case shall be liable for perjuicios (loss of profits or losses of any nature arising from legal relations with any third party outside this Agreement), as well as for any indirect and/or consequential damages, nor for fines, penalties and/or extraordinary expenses to be incurred by the Client or that relates to the Products or Services; in such virtue, the Client accepts and acknowledges that he will not be able to demand from KUEHNE+NAGEL responsibility derived from the above; (v) KUEHNE+NAGEL shall not be liable for the theft of the Products and/or containers or packaging if there has been violence, whether physical or mental, unless it has been duly proven that said crime was committed by KUEHNE+NAGEL, its employees or suppliers; (vi) notwithstanding what is stated in any provision to the contrary contained in any other document, and / or clause, and / or annex, the liability of KUEHNE + NAGEL for the provision of the Services, damages and / or losses of the Products, the fulfillment or breach of its obligations, in any case, will be limited as follows:
For sea transport services, storage, customs clearance, cross dock and /or value-added services: The liability of KUEHNE + NAGEL, will be limited as stated in the FIATA Rules to the amount equivalent to 2 SDR / kg, with a maximum per event and per year of SDR 10,000.
For any service that involves land transport, the limits of the Law of Roads, Ports and Federal Motor Transport will apply as follows: the responsibility of KUEHNE +NAGEL, will be limited to the amount equivalent to 15 (fifteen) days of the general minimum wage in force, per ton or the proportional part that corresponds in the case of shipments of lower weight.
For the air transport service Montreal Convention (1999) limiting the maximum liability of the cargo consolidator and/or the airline to 17 SDR/kg.
In the event of any other loss and/or damage suffered by the Client, other than those mentioned above, the parties agree that the maximum amount of liability borne by KUEHNE+NAGEL shall be SDR 10,000 per year.
8º Obligations of the Client. (a) Pay to KUEHNE+NAGEL the agreed rates within the agreed period and in the absence of an agreement, in 30 days after the invoice date; (b) notify KUEHNE+NAGEL in writing of any anomaly appearing in connection with the Services; (c) have sole and exclusive authority with respect to the disposal of any of the Products that are damaged, expired or obsolete, or that can no longer be sold, and remove said Products from the facility or facilities operated by KUEHNE+NAGEL or third parties contracted by the latter; (d) hold harmless, pay the legal expenses as well as attorneys' fees of KUEHNE+NAGEL, and reimburse KUEHNE+NAGEL for any amount that KUEHNE+NAGEL should pay arising from any contingency arising from claims or claims of third parties; (e) fully comply with the obligations that the BL and/or incoterm apply to the case indicated to them; (f) the Client shall be liable for any damage or loss suffered by the goods of KUEHNE+NAGEL or its suppliers, for reasons attributable to the Client, including error, fault, malice or negligence, or for the inaccuracy or falsity of the information provided; or for not indicating, if any, the care or special measures that are applicable to the Products.
9º Claims. The Parties agree that any claim shall be notified in writing to KUEHNE+NAGEL, within15 (fifteen) calendar days from the date on which the claimed event occurred.
10º Insurance. Each of the Parties shall have and maintain in force insurance with sufficient coverage in accordance with the following: (a) KUEHNE+NAGEL: Insurance of civil liability against third parties and (b) The Client: (i) Insurance against all risks, which protects the Products; (ii) civil liability against third parties. In the event that the Client does not have the insurance indicated in subsection (b) KUEHNE+NAGEL may provide through its affiliates a separate quote, upon request of the Client, without implying that KUEHNE+NAGEL has any additional responsibility under this Agreement.
11°. Noncompliance. The breach of any obligations in this Agreement by any Party shall entitle the other Party to notify in writing the breach, in order to remedy or correct it. The term to correct the breach will be 60 (sixty) days, except for the payment obligation. In the absence of any remedy, the Party concerned shall have the right to terminate this Contract without liability.
12º Confidentiality. Both Parties undertake to limit access to all information they receive from the other Party to those persons who need to have knowledge of it for the fulfillment of this Contract, warning them of the confidential nature of the information and the treatment that must be given to it. By virtue of the foregoing, any Confidential Information received from the other Party will be kept confidential and secret and, as a result, such information will not be used for benefit or for the benefit of any third party, except for the performance of obligations under this Agreement; likewise, all reasonable efforts will be used to prevent others from disclosing and delivering confidential information to persons not expressly authorized by the Parties. In case of contravention of the above, the sanctions provided for by law will be applicable. These obligations will survive for 2 (two) years after the termination of this Agreement.
13 º Labor Responsibilities. Each of the Parties to this Contract are companies with own, sufficient and necessary elements to respond to their obligations towards employees, staff and, in general, their workers, therefore, each of the contracting parties undertakes to respond exclusively to the obligations related to said employees, staff or workers. Therefore, each of the Parties shall at all times remain outside any existing employment relationship between the other Parties and their respective employees or workers.
14º Protection of Personal Data. In compliance with current regulations on the protection of personal data held by individuals, the Parties consent that the collection, transfer and processing of data granted on the occasion of the negotiation, signature and execution of this Contract, will be part of an authorized database, whose purpose will be the diverse handling of them in accordance with the object and content of this contract, and in accordance with what is regulated in terms of the applicable laws and regulations and in accordance with the current personal data protection notice.
15° Trade Control. Customer warrants that (a) Customer and its owners as well as all parties to Customer’s shipments and transactions, including their respective owners, and (b) Customer’s transactions for which KUEHNE+NAGEL provides the services, are not subject to any applicable US, EU or national customs, import, export, trade control or sanctions laws and regulations that would prohibit such services.
Customer shall supply KN, in writing, with all documents and information including, but not limited to, commodity classification numbers, customs valuations, country of origins, export control classification numbers and any required export, re-export, transit or import licenses permits, authorisations or exemptions (“Customer Data”) necessary for KN to provide the services in accordance with applicable laws and regulations.
Customer warrants that the Customer Data is complete and accurate. Customer shall immediately advise KUEHNE+NAGEL of any errors, discrepancies, incorrect statements or omissions in Customer Data filed by KN on Customer’s behalf with Customs and other authorities or third parties.
Customer acknowledges that KUEHNE+NAGEL is not the Exporter of Record, Importer of Record, Fiscal Representative, Ultimate Consignee or End-User and that KUEHNE+NAGEL is unable to sign government forms on behalf of such parties.
Customer shall indemnify and hold harmless KN and all KUEHNE+NAGEL affiliates from all claims, expenses, losses, penalties and damages, including reasonable attorneys’ fees, arising from or in connection with Customer’s failure to comply with obligations in this clause.
16° Termination. This Agreement may only be terminated by written notice at least 30 (thirty) calendar days prior to the effective date of termination and without prior judicial resolution, for any of the following reasons: (a) mutual agreement; (b) if, due to unforeseeable circumstances or force majeure, it is impossible for the Parties to comply with the object of the Contract; (c) any of the Parties breaches any obligation at its expense, subject to the provisions of this Agreement; (d) an administrative or judicial action is brought by or against any Party and/or its parent company and/or shareholders, for insolvency, liquidation, bankruptcy or similar case, within or outside Mexico.
17° Jurisdiction. With regard to the interpretation, compliance and / or execution of this Contract, as well as any dispute arising from it, the Parties submit to the applicable laws in Mexico in Federal matters and to the competent common courts of Mexico City, expressly waiving any other jurisdiction that may correspond to them by reason of their present or future domiciles or for any other reason.
[English version just for reference, Spanish Terms and Conditions will prevail].
