These Terms of Value Protect apply to the transportation of goods covered by Value Protect:-
”Carriage” means the entire or any part of the carriage, loading, unloading, handling, and any and all other services related to the Goods provided by the Carrier.
”Contract of Carriage” means any contract of carriage between the Carrier and the Merchant, evidenced by a Transport Document for the carriage of goods, whether or not such Transport Document has been physically issued, provided that the Goods have been accepted for carriage and the Shipper has the right to demand a Transport Document.
“Applicable Event” means any cause of a loss that occurs within an Applicable Period and for which the Carrier is liable under these Value Protect Terms.
“Applicable Period” means the time period during which the Carrier is responsible for the Value Protect Goods, as stipulated in the Contract of Carriage.
“Merchant” includes the Holder, Shipper, Consignee, and Receiver of the Goods, as well as anybody who owns or has the right to possess the Goods or this bill of lading, and anyone acting on their behalf.
“Customer” means the party purchasing Value Protect, any person or company that meets the ‘Merchant' criteria, or any party who fully subrogates the rights of the aforementioned parties.
“Transport Document” means a Fluxe Logistics sea waybill or bill of lading.
“Value Protect” means a value-added service that a customer may purchase in conjunction with entering into a Carriage Contract.
“Value Protect Goods” means the goods for which the Customer has purchased Value Protect.
2.1 Prior to the Carrier accepting the Custody of the Goods at the Port of Loading, the Customer must apply for Value Protect.
2.2 Value Protect will apply to the Goods once the Carrier has accepted the cargo, provided that the Customer has applied for Value Protect prior to such cargo acceptance.
2.3 Value Protect will continue to apply to Value Protect Goods only while they are under the Carrier's responsibility as stipulated in the Contract of Carriage.
2.4 Value Protect and these Value Protect Terms coexist with, and rationally amend, vary, and supplement, the applicable terms of the Contract of Carriage, which shall remain in full force and effect in all other respects.
3.1 Where these terms apply to a Contract of Carriage, the following clause must be incorporated into the carriage terms, regardless of any terms printed on the reverse of a bill of lading or otherwise incorporated or referenced:
3.1A. In relation to any claims under the Contract of Carriage, the Carrier hereby waives the right to rely on the provisions of Article IV Rules 2(a), (b), (c), (h), (l), and (o) of the Hague Rules, and subject to clause 3.1B below, the Carrier's liability shall extend to cover loss or damage arising or resulting from the matters specified in such sub-rules of Article IV rule 2.
3.1B. Regardless of section 3.1A above, the Carrier shall not be liable for any loss or damage occurring or resulting from [or contributed to by] the Merchant's conduct or omission.
3.2 Subject to these Value Protect Terms and notwithstanding any provision to the contrary in or applicable to the Contract of Carriage, any compensation payable to the Customer for claims arising from an Applicable Event shall be limited to the lower of the commercial value of the Goods covered by Value Protect, as set out in the commercial invoice for the Goods, or the commercial value of the Goods covered by Value Protect, as set out in the commercial invoice for the Goods.
3.3 The Carrier will settle any claim for contribution or security in respect of salvage and/or General Average contributions due from the Customer in respect of all or part of the Value Protect Goods if an Applicable Event results in General Average and/or salvage liabilities.
3.4 The following are the compensation limits for each Value Protect tier:
3.4.1. Value Protect Starter coverage up to 15,000 USD
3.4.2. Value Protect Base coverage up to 30,000 USD
3.4.3. Value Protect Plus coverage up to 60,000 USD
3.4.4. Value Protect Extended coverage up to 120,000 USD
3.4.5. Value Protect Cool Standard coverage up to 12,000 USD
3.4.6. Value Protect Cool Advanced coverage up to 36,000 USD
3.4.7. Value Protect Special Standard coverage up to 180,000 USD
3.4.8. Value Protect Special Advanced coverage up to 240,000 USD
4.1 Value Protect applies to shipments accepted for carriage by the Carrier and falling within the Carrier's cargo acceptance policy. Only Goods carried as special cargo in open top or flat rack containers are subject to the Value Protect tiers outlined in 3.4.7 and 3.4.8. Despite this, and regardless of how the Goods are defined in the Transport Document, the following commodities are exempted from the Value Protect terms:
4.1.1 seafood and fish, Chilled avocadoes, berries, bananas, pineapples, papayas, non-citrus fruits (except apples, pears and grapes);
4.1.2 Frozen fish and seafood; or
4.1.3 Goods transported at ultra-low temperatures of negative 60 degrees Celsius or lower, also known as the'super freezer segment'.
4.2 The provisions of clause 3 above does not apply.
4.2.1 to any Goods mis-declared or incorrectly described in the Transport Document, regardless of the reason for the mis-declaration or incorrect description, and whether material or not; and/or
4.2.2 if the Carrier receives the Value Protect application after the Goods have been received for Carriage.
4.3 Value Protect does not apply for any shipments to or from Crimea, Cuba, North Korea, Syria, Sudan and/or Iran.
4.4. Except as otherwise provided in these Value Protect terms, the Carrier's defenses as set out in or applicable to the Contract of Carriage remain in full force and effect. In particular, but not exclusively, the defenses available to the Carrier under the Hague Rules that are not listed in clause 3.1 above.
4.5 In Taiwan, Value Protect is not available.
5.1 In the event of an Applicable Event occurring during the Applicable Period, the Customer or Merchant must notify the Carrier of their claim by notifying our customer service representative(s) and providing all supporting documentation, which includes, but is not limited to:
5.1.1. a duplicate of the transportation document
5.1.2. a duplicate of the commercial invoice
5.1.3. If the Goods have been delivered, colour photographs of the Goods must be provided
5.1.4. A statement of the facts and specifics of the loss or damage to the Goods; and
5.1.5. Any other document(s) required to assess liability and compensation as requested by the Carrier.
5.2. If the Customer has purchased the Value Protect Plus, Value Protect Extended, or Value Protect Cool Advanced tier, the Customer is under no obligation to instruct a third-party surveyor to assess the extent of damage to the Goods, but the Carrier may do so at its discretion if the Customer notifies the Carrier's representative(s) within 3 days of delivery of the Goods.
5.3. If a claim exceeds the amount of the Value Protect tier purchased for the Value Protect Goods claimed for, the Customer's eligibility for additional compensation will be determined solely by the Carrier's Terms of Carriage. To avoid doubt, if the Carrier's liability for the entire claim under the Terms of Carriage is less than the tier purchased, the Carrier will not be obligated to compensate the Customer for any amount above the Value Protect tier.
5.4. The Merchant and Customer must take all reasonable steps to mitigate any loss caused by an Applicable Event.
6.1. Payment of any claim under these Value Protect terms is subject to the following conditions:
6.1.1. all sums due to the Carrier from the Customer have been settled in full; or
6.1.2. there are no overdue amounts under that agreement in the case of a Customer with a valid credit agreement.
6.2. Regardless of clause 6.1 above, if the Carrier owes any sums to the Customer or has any overdue amounts under a credit agreement with the Customer, the Carrier shall be entitled to set-off any compensation owed to the Customer under these Value Protect terms or the contract of carriage against such sums or amounts.
7.1. To the exclusion of all other third parties, the Customer or any person or entity falling within the definition of Merchant and who has the right to claim under the Contract of Carriage shall have the benefit of these Value Protect terms.
7.2. Except as expressly specified in section 7.1 above, a person who is not a party to the Contract of Carriage has no rights to enforce any provision of these Value Protect terms under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
7.3. All prices and rates do not include VAT or any other indirect taxes that may be imposed and paid by the customer.
7.4. No agent or servant of the Carrier has the authority to waive or alter any of these Value Protect terms unless the waiver or variation is in writing and specifically ratified or authorised by the Carrier.
7.5. If any provision or part-provision of this agreement is or becomes invalid, illegal, or unenforceable, it will be deemed modified to the bare minimum required to make it valid, legal, and enforceable. If such a change is not possible, the relevant provision or part-provision is deemed to be deleted. Any change to or deletion of a provision or part-provision under this clause shall have no effect on the validity and enforceability of the remainder of this agreement.
8.1. Any dispute relating to this bill of lading for shipments to or from the United States will be governed by U.S. law, and the United States Federal Court for the Southern District of New York will have exclusive jurisdiction to hear all such matters. In all other situations, English law shall govern and be construed, and all issues arising hereunder shall be resolved by the English High Court of Justice in London, to the exclusion of the courts of another country. Alternatively, and at the Carrier's exclusive discretion, the Carrier may file suit against the Merchant in a competent court in the Merchant's place of business.