SERVICES AND FACILITIES
by Bharat Mumbai Container Terminals Private Limited ("BMCT")
of the following expressions and their grammatical variations used in the
Contract shall have the following meaning unless the context of the Contract
1.1.1.”Advance Payment Account”
means an account opened with BMCT by the Customer prior to the provision of
Services and/or Facilities by BMCT.
1.1.2.“Applicable Laws” means, as to any
person, all applicable constitutions, treaties, laws, statutes, codes,
ordinances, orders, decrees, rules and regulations binding upon such person or
to which such a person is subject including any requirement imposed by the
International Maritime Organization.
1.1.3.“Application" means the application
for the Services/Facilities, made by or for the Customer to BMCT in writing or
by any other mode required or accepted by BMCT and granted by BMCT.
1.1.4.“BMCT” means the party designated and/or
defined as such in the Application, its successors and permitted assigns.
1.1.5.“BMCT Scale of Rates” means the document
titled as such and listing charges payable to BMCT from time to time for the
use of the Services/Facilities, the current edition of which is available on https://bmctpl.com/Terms-of-Use/ (and which the Customer hereby acknowledges as having read and
agreed to) and any amendments thereto which shall be uploaded on https://bmctpl.com/Terms-of-Use/ which
shall also be binding on the Customer.
1.1.6.“BMCT Terminal” means all or any part of
any land, place, structure or building in which the Services/Facilities shall
be provided by BMCT irrespective of whether or not such land, place, structure,
or building shall be owned, operated, managed or controlled by BMCT, including
any berth, jetty or wharf.
1.1.7.“Claim” means any loss, damage, cost,
expense and/or liability incurred due to any circumstances, including but not
limited to the following:
any loss, destruction or
damage of any property (including the property of the person suffering such
loss, damage, cost or expense);
any damage to the
the death or injury of any
any economic or
consequential loss or loss of profits suffered by any person and any demand or
legal proceedings made or instituted in respect of such loss, damage, cost or
expense (including solicitor and client costs); and/or
compliance with Applicable
Laws and/or obligations,
shall include any Claims in respect of any of the above matters.
1.1.8. “Code” means The Code, the code of
conduct setting out PSA Group’s business principles and that offers guidance on
what is expected of PSA employees in dealing with critical issues, the latest
version which may be found at: https://www.globalpsa.com/wp-content/uploads/PSA_Code_Handbook.pdf
1.1.9.“Conditions” means these General
Conditions and “Condition” means each one of them.
1.1.10. “Container” means a receptacle 6.1
metres or more in length equipped with corner castings to facilitate handling
by mechanical equipment.
1.1.11. “Contract” means the contract
constituted by the Application including the Conditions and any other document
expressly agreed between the Parties as forming part of such contract.
1.1.12.“Contract Period” means the period of
the Contract from the commencement date until the expiry date both stipulated
in the Application or in the absence of such stipulation:
until the complete
performance of the Contract; or
until the termination of
the Contract in accordance with the provisions of the Contract,
whichever shall be earlier.
Sum” means all or any sums payable by or for the Customer to BMCT under the
Contract or at law in accordance (where applicable) with the rate stipulated in
the Contract or in the absence of such stipulation, in accordance with the rate
stipulated in the BMCT Scale of Rates, and shall include without limitation any
and all interest due on the same.
means the party, other than BMCT, to the Application, and includes the
successors and permitted assigns of such party.
1.1.15. “Customer's Representative” means any
one or more persons authorised by the Customer and approved by BMCT under
1.1.16.“Dangerous Goods” means cargo falling
into any of the classes of dangerous goods set out in the International
Maritime Dangerous Goods Code and/or under applicable law and any empty
receptacles previously used for the carriage of such goods unless already
1.1.17. “Delivery/Shipment Note” means the document issued by BMCT in respect of the Goods pursuant
to Condition 8.4.1(c) or its duplicate
issued by BMCT pursuant to Condition 8.4.3.
1.1.18.“Facilities” means all or any part of the facilities described as such in the
Application or any facilities provided by BMCT, whether for use in themselves or for use in connection with the
provision of the Services.
1.1.19. “Force Majeure” means any of the following events:
any act of God, act of war,
rebellion, riot or civil commotion, insurrection, looting, blockade or embargo,
act of public enemy, strike, action to work to rule, occupation, lock-out,
theft, acts of terrorism or cyber-terrorism, sabotage, compliance with any
regulation, measure, direction, order or request of any competent authority
(whether in or outside of India) or person purporting to act therefor,
mobilisation, requisitioning, quarantine measure, epidemic, obstruction of
access, prohibition or restriction of import, export or transit, attachment or
arrest of any property used for the performance of the Contract, abnormally
high prices, failure of or stagnation in the supply of power, fuel, transport
or equipment affecting the availability of materials or labour necessary for
the performance of the Contract to a degree not existing at the time of
commencement of the Contract Period, or any other similar circumstances (but
shall not include lack of financial capacity or inability to make payments for
any fire, smoke, explosion,
water used to extinguish fires, atomic nuclear reaction, haze, flood, storm,
peril of the sea, breaking adrift of any vessel from BMCT Terminal, damage by
aircraft or vessel, obstruction to shipping or roads that provide access to or
egress from BMCT Terminal or interruption of use of the Services/Facilities due
to any cause whatsoever;
any defect, inherent vice
or natural property of the Goods, change in quality of the Goods through leakage,
loss of weight, deterioration, decay, damage by vermin, damage caused by other
goods, any defect whether or not latent of the Facilities or defective
packaging, containers or means of transport used in respect of the Goods, delay
in the delivery of the Goods to or from BMCT Terminal on the part of any person
other than BMCT, its servants or agents, failure in or delayed arrival of
packing materials, containers or means of transport used in respect of the
Goods or a third party's interference with the Services/Facilities; and/or
any other circumstances the
occurrence or extent of which BMCT could not reasonably have controlled,
foreseen, avoided, prevented or forestalled, including, without limitation, a
third party’s interference with BMCT’s computer systems, hacking, cyber-attack,
computer viruses, the stability or availability of the Internet or a portion
thereof or a network or device failure external to BMCT’s data centre.
means all or any part of any property of any kind whatsoever brought into any
part of BMCT by the Customer or for the Customer for the purposes of the
Contract including any Container.
1.1.21. “Goods Handling” means all or any of the following Services and Facilities provided
by BMCT which are the subject of the Application:
shifting Goods between any
Vessel and any part of BMCT Terminal;
shifting Goods from place
to place within any part of BMCT Terminal;
shifting Containers from
place to place within any Vessel;
shifting Containers from
any part of BMCT Terminal to another part of BMCT Terminal;
loading or unloading
Dangerous Goods in containerised or breakbulk form;
stowage planning of any
storing Goods in any part
of BMCT Terminal;
storing Goods classified by
BMCT as Valuable Articles;
delivery of any Container;
test of any Container.
means BMCT or the Customer.
Services” means all or any of the following
services and facilities provided by BMCT which are the subject of the
connecting or disconnecting
any refrigerated Container to or from power plugs in any reefer yard forming
part of BMCT Terminal;
supplying electricity to
any refrigerated Container and monitoring the temperature within the Container;
repairing the reefer
machinery of any refrigerated Container; and
test of any refrigerated Container.
1.1.24. “Related Corporation” of a party means:
the ultimate parent of such
any entity that is a
subsidiary, whether directly or indirectly, of the ultimate parent of such
a subsidiary of such party,
whether directly or indirectly.
1.1.25.“Services” means any service described as such in the Application and/or any
operation, work or services performed or provided by BMCT in connection with
Goods or a Vessel, including without limitation:
berthing or unberthing of
shifting or hauling of
repair of any Container;
survey or inspection of any
Goods and their contents to ascertain the nature and extent of any loss or
damage of the same;
ship supplies to any
supply of fresh water via
pipeline to any Vessel;
distribution of power
supply to any Vessel;
fumigation of any Goods;
supply of mechanical
equipment and manpower for the lifting and moving of any Goods;
weighing of Containers;
m. documentation processing; and
inspection and survey of
containers and vessels.
1.1.26. “Services/Facilities” means the Services and/or the Facilities, as
the case may be.
1.1.27. “Valuable Articles” means any article of extraordinary value.
1.1.28. “Vessel” means the vessel in respect of which any Service/Facilities
is provided or to be provided under the Contract.
the context so admits or requires, words denoting the singular include the
plural and vice versa, and words denoting any gender include all genders.
several documents or other modes of communication forming the Contract shall be
taken as mutually explanatory of one another and unless expressly provided
otherwise in the Contract:
in the event of any
contradiction or inconsistency between any Conditions and any other provision
of the Contract, such other provision of the Contract shall prevail; and
in the event of any other
contradiction or inconsistency between any provision of the Contract (except
the Conditions) and any other provision of the Contract (except the Conditions),
the provision with a later date shall prevail.
agreements and undertakings on the part of either Party which comprise more
than one person or entity shall be joint and several.
applications, orders, instructions, notices, requests, descriptions,
directions, declarations, permissions, consents and all other communication
under the Contract to be made or given to BMCT shall be made or given in
writing or in a mode acceptable by BMCT.
in the Contract to any statute includes a reference to such statute in force
from time to time and any rules, regulations, notifications or orders made
under such statute.
whole or any part of any provision of the Contract shall be or become illegal,
invalid or unenforceable for any reason whatsoever including by reason of any
statutory provision or by reason of any decision of any Court or any other body
or authority having jurisdiction over the Parties or the Contract, such whole
or part of such provision shall be deemed to be deleted from the Contract
provided that if any such deletion substantially affects or alters the
commercial basis of the Contract, the Parties shall negotiate in good faith to
amend the provisions of the Contract where necessary or desirable in the
headings of the provisions of the Contract are for reference and the convenience
of the Parties only and do not define, limit or enlarge the meaning,
interpretation or scope of the provisions.
trade term used, but not defined, in the Contract shall have (i) the meaning
ascribed to the same under Applicable Law (including conventions and treaties
having force of law) or (ii) in case no definition has been prescribed under Applicable
Law, the meaning generally implied to such term under prevalent business/ trade
2.8.BMCT RESERVES THE RIGHT TO REVIEW, REVISE, AMEND OR REPLACE
ALL OR ANY PART OF THESE CONDITIONS FROM TIME TO TIME WITHOUT NOTICE. THE
PREVAILING VERSION OF THESE CONDITIONS APPLICABLE FROM TIME TO TIME MAY BE
FOUND AT https://bmctpl.com/Terms-of-Use/.
shall provide and the Customer shall accept the Services/Facilities during the
Contract Period in consideration of the payment of the Contract Sum, all in
accordance with the terms and conditions of the Contract.
undertaking by BMCT under the Contract to do any act may be carried out by its
authorised employees, agents or contractors, and all protection from liability
afforded to BMCT by the Contract in respect of such acts or omissions shall
also be afforded to such persons to which end BMCT contracts on the Contract on
its own behalf and as agent for and trustee for the benefit of its employees
the other provisions of the Contract, BMCT may terminate the Contract forthwith
at any time without any Claim or charge by the Customer if BMCT deems it
necessary to do so for the protection of its legal, commercial, financial
position and/or has any urgent reason for doing so.
urgent reasons shall include but not be limited to:
if the Customer shall fail
to observe or perform any of its obligations under the Contract and shall not
remedy its failure within a reasonable time after BMCT has notified the
Customer of such failure;
if BMCT shall be of the
opinion that the presence of the Goods at any BMCT Terminal may lead to any
Claim against BMCT, its servants or agents; and/or
if BMCT shall be prevented
from providing the Services/Facilities or if the Services/Facilities shall
become unsuitable in any way for use due to any Force Majeure.
expressly provided otherwise in the Contract, BMCT shall allocate the
Facilities in its absolute discretion.
RELATING TO GOODS
5.1.1.The Customer shall on or before the delivery of any Goods to BMCT,
and within timelines stipulated by BMCT, provide all information required by
BMCT in respect of the Goods, including but not limited to information
necessary for the compliance with laws, the provision by BMCT of the Services
and Facilities and/or for the safe, proper and efficient handling of the Goods.
5.1.2.BMCT shall be entitled, at any time, to inspect, weigh and/or test
the Goods and do any acts necessary or desirable in BMCT’s opinion.
costs and expenses arising therefrom, as determined by BMCT, shall be borne by
the Customer if the inspection, weighing and/or testing:
shows that the information
provided in respect of the Goods is incomplete and/or inaccurate;
is requested by the
Customer and/or any competent authority; or
is conducted by BMCT to
comply with any law or regulation or International Maritime Organization
the foregoing, nothing relieves the Customer from its responsibility to ensure
that all required information is provided to BMCT in accordance with Condition 5.1.1.
may accept delivery of the Goods and/or provide the Services/ Facilities in
connection therewith notwithstanding BMCT’s knowledge of any incorrect or
incomplete information relating to the Goods and in that event:
the Customer shall bear the
risk and expense of any necessary or desirable acts carried out by BMCT in
respect of the Goods, Services and Facilities arising from such incorrect or
incomplete information and indemnify BMCT against all Claims made by BMCT, its
employees or agents, or any third party arising from such acts; and
BMCT shall not be liable
for any Claim arising from BMCT’s acceptance of delivery of the Goods and/or
provision of the Services and Facilities in connection therewith.
5.3.BMCT shall be entitled to refuse to accept
delivery of the Goods, refuse to provide any Services/Facilities in respect
thereof and/or take any necessary or desirable acts in connection therewith,
without responsibility for any loss or any liability, consequential or
otherwise, if in the opinion of BMCT:
the Customer fails to
provide, in part or in full, any information required by BMCT pursuant to
Condition 5.1.1 or the Goods do not conform
with the information provided by the Customer under Condition 5.1.1;
the Goods are delivered in
an apparently damaged or defective condition; or
the provision of such
Services/ Facilities may lead to a Claim against BMCT, its employees or agents.
shall be entitled to require payment from the Customer of any charges, cost or
expense incurred by BMCT in respect of, and the Customer shall be liable to
BMCT for and shall indemnify BMCT against all Claims suffered by or made against
BMCT, its employees or agents arising from, BMCT’s refusal to accept delivery
of the Goods, BMCT’s refusal to provide the Services /Facilities, any Services/
Facilities provided prior and/or pursuant to BMCT’s refusal to accept delivery
of the Goods pursuant to Condition 5.3 and/or any
necessary or desirable acts taken by BMCT in connection therewith.
shall be entitled in its absolute discretion to rely on and accept, prima
facie, any information communicated to and received by BMCT from the Customer
and/or the results of any inspection, weighing or testing carried out by BMCT
under Condition 5.1.2, and the Customer shall
be liable to BMCT for and shall indemnify BMCT against all Claims suffered by
or made against BMCT, its employees or agents arising from such reliance by
BMCT and/or any incorrect or incomplete description, statement, indication,
information, notice, direction or instruction made or given by the Customer to
BMCT, in addition to the charges, costs and expenses payable by the Customer
under Condition 5.1.2.
duties, taxes and charges.
Goods subject (or that may be subject) to duties, taxes or other charges by the
competent authorities, the Customer shall, reasonably in advance, provide to
BMCT all information required of BMCT by such authorities in respect of such
Customer shall be liable for and indemnify BMCT against any Claim, penalties,
taxes or duties suffered or payable by BMCT arising from any delay in or
complete or partial failure to provide the required information and/or
Customer shall not deposit any arms, explosives or Dangerous Goods with BMCT
unless BMCT has provided written agreement to the same.
6. TRANSPORTATION, PACKING MATERIALS AND CONTAINERS
Customer shall ensure at all times that the means of transportation, packing
materials and containers and their accessories used in the delivery of the
Goods to BMCT shall be in a sound, clean, tight and staunch condition, fit for
use in respect of the Goods and in compliance with the requirements of the
competent authorities. BMCT will not be liable for any Claim arising from such
standards not being met and the Customer shall indemnify BMCT against such
shall be entitled at any time on, before or after accepting delivery of the
Goods, to open, weigh, measure, test or examine such means of transportation,
packing materials and containers for the purposes of inspection.
to accept delivery
in the opinion of BMCT, such means of transportation, packing materials or
containers are not as that described in Condition 5.1,
BMCT is entitled to refuse to accept delivery of the Goods and/or remove or
require immediate removal of the Goods at the risk and expense of the Customer.
7. GENERAL CONDITION ON ARRIVAL
of delivery not proof of condition
acceptance of delivery of the Goods by BMCT shall be without prejudice to
Condition 5 and shall not constitute
proof that the Goods were delivered in a good and undamaged condition or that
the means of transportation, packing materials or containers used in respect
thereof conformed with the requirements of Condition 5.
of damage, defect or deterioration
shall, as soon as practicable, notify the Customer of any damage or defect of
the Goods or of such means of transportation, materials or containers which is
apparent at the time of delivery thereof but the Customer shall not make any
Claim against BMCT, its employees or agents by reason of the fact that it has
not been so notified.
shall be entitled, at the expense of the Customer, to do all things deemed by
BMCT to be necessary to remedy such damage or defect or to prevent or reduce
further damage, defect or deterioration in the condition of the Goods or of
such means of transportation, materials or containers and to arrange for a
report to be made on the condition of the Goods or of such means, materials or
containers without being liable for any Claim arising from doing such things
and the Customer shall indemnify BMCT, its employees and agents against such
8. DELIVERY OR RE-DELIVERY
of delivery to BMCT
Goods shall be deemed to have been delivered to BMCT at the Facilities
immediately after the Goods have been unloaded from a Vessel or a vehicle at
the Facilities or any part of BMCT Terminal, as the case may be.
of re-delivery to Customer
Goods shall be deemed to have been re-delivered to the Customer from the
Facilities or any part of BMCT Terminal, immediately after such Goods are
loaded onto or into the Vessel or vehicle or re-delivery accepted by the
Customer whether expressly or by conduct at the Facilities or any part of BMCT
8.3.Time and date to be notified
8.3.1.The Customer shall agree with BMCT 7 days prior to the time and date
when the Goods shall be delivered to BMCT or re-delivered to the Customer.
the Goods shall not be delivered or taken re-delivery of at the times and dates
agreed under Condition 8.3.1:
the Customer shall be
liable for any Claim suffered by BMCT, its employees and agents arising there
from and indemnify BMCT, its employees and agents against such Claim; and
in the case of delivery of
the Goods, BMCT shall no longer be required to make available the Facilities
pursuant to the Contract or in the case of re-delivery of the Goods, BMCT shall
be entitled to remove the Goods forthwith from the Facilities at the risk and
expense of the Customer.
shall be of the essence for the purposes of this Condition 8.3 and the Customer shall not be entitled to any
notice of such failure. If any time period specified herein is extended by the
mutual consent of the Parties then such time period shall be of essence of this
to Conditions 19.1 and 19.2, BMCT shall re-deliver the Goods to the
if so instructed by the
against the presentation of
a receipt in a form approved by BMCT and duly signed and stamped by the
against the surrender of a
Delivery/Shipment Note (if any) issued in respect of such Goods,
that the Customer shall have performed and observed the provisions of the
Contract and of any other contract made between BMCT and the Customer in
respect of other goods at any part of BMCT Terminal, up to the date of such
shall be entitled but not obliged:
to demand from any person
purporting to be entitled or authorised to take re- delivery of the Goods,
satisfactory proof of the person's identity and of such entitlement and
to satisfy itself that the
signature and stamp appearing on the instructions, receipts and the
Delivery/Shipment Note are correct and valid as at the date of re-delivery.
8.4.3.In the event that a Delivery/Shipment Note has been issued in
respect of the Goods and the re-delivery of a part of the Goods by BMCT to the
Customer such re- delivery shall be recorded in the Delivery/Shipment Note
surrendered pursuant to Condition 8.4.1(c)
and BMCT may then at its absolute discretion either:
Delivery/Shipment Note to the Customer; or
issue a fresh
Delivery/Shipment Note to the Customer in respect of the remaining part of the
event of any partial or total loss or destruction of the Goods due to any cause
whatsoever, the date of commencement of such loss or destruction shall be
deemed to be the date of re-delivery of the Goods by BMCT to the Customer.
shall be discharged from all liability in respect of the Goods by re-delivery
thereof to the Customer or other person presenting a bill of lading,
Delivery/Shipment Note or letter of authorisation as the case may be, relating
thereto and shall not be bound to make any enquiry whatsoever as to the legal
entitlement or otherwise of the Customer or such person to the Goods.
shall be discharged from all liability for wrongful delivery of the Goods where
the carrying vessel advises BMCT that it is unable to discharge the Goods
therefrom by marks.
shall not be bound to make any enquiry as to the correctness, proper
authentication or otherwise of any endorsement appearing or purporting to have
been made on any of the aforesaid bill of lading, Delivery/Shipment Note or
letter of authorisation.
9. MOVEMENT OF GOODS
shall be entitled to move the Goods from the Facilities to any other part of
any BMCT Terminal from time to time.
may store the Goods in the open if deemed appropriate and suitable by BMCT.
10. SPECIFIC MEASURES
fittings and measures
the other provisions of the Contract, BMCT shall be entitled immediately, and
at the risk and expense of the Customer, to install or modify any fixture or fitting
to the Facilities and take every measure reasonably deemed by BMCT to be
necessary (including the cessation of the provision of the Services/Facilities
or the removal or disposal of Goods) as required by any Government or public
authority, and/or in order to prevent or reduce any damage (to property and the
environment, personal injury or death) and/or to prevent or reduce the risk of
any Claim or potential Claim against BMCT. Such fixture or fitting shall be the
property of BMCT.
shall as soon as possible, notify the Customer of such installation,
modification and measures but any failure by BMCT to notify the Customer shall
not entitle the Customer to make any Claim against BMCT in respect thereof.
11. INSPECTION AND WORKS
is entitled to conduct any inspection of or any works to the Facilities which
is required, in BMCT’s opinion, due to or pursuant to any law effective during
the Contract Period, at the risk and expense of the Customer. The Contract Sum
remains payable in the event of such inspection/works even if the Customer is
deprived of the use of the Services/Facilities. BMCT is entitled to do all acts
necessary for such inspection or works to take place and the Customer shall not
make any Claim arising therefrom, save where there has been wilful intent or
recklessness on the part of BMCT.
12. WORKING HOURS
Services/Facilities shall be provided by BMCT during the normal working hours
stipulated by BMCT from time to time. BMCT may, at its discretion, provide the
Services/Facilities outside the normal working hours if BMCT shall reasonably
deem it necessary to do so or if required by the competent authorities and any
costs or expenses incurred by BMCT from providing any Services or Facilities
outside the normal working hours pursuant this Condition shall be payable by
the Customer to BMCT.
13. REMOVAL OF VESSELS
Customer shall ensure that the Vessel shall be removed from the BMCT Terminal
immediately upon completion of the discharge/loading of the Goods or at any
time as deemed necessary by BMCT.
14. CUSTOMER’S REPRESENTATIVE
14.1.1.BMCT may grant approval for any one or more persons authorised by
the Customer to deal with BMCT, its employees and agents for and on behalf of
the Customer for the purposes of the Contract. All acts or omissions by such
authorised person shall be deemed to be acts or omissions of the Customer.
prejudice to the foregoing Condition 14.1.1,
BMCT shall be entitled to deem that any person actually (whether expressly or
impliedly by way of conduct, course of dealing, usage or custom, or otherwise)
or ostensibly or apparently authorised by the Customer to deal with BMCT, its
servants and agents for the purposes of or in connection with the Contract
(including without limitation shippers, consignees, importers, exporters,
container freight station, hauliers and truckers) is the Customer’s
Representative, in which event all acts or omissions by such person shall be
deemed to be acts or omissions of the Customer.
Customer shall ensure that only the Customer itself or the Customer’s
Representative shall deal with BMCT for the purposes of the Contract.
Notwithstanding the provisions of this Condition 14.2, the Customer remains responsible
for the due observance of and compliance with provisions of the Contract.
undertaking by the Customer under the Contract shall be deemed to include an
obligation to ensure that the same shall be carried out by the Customer’s
and indemnity for Customer’s Representative
shall not be liable for any Claim suffered by any person due to any cause
whatsoever arising from the act or omission of any Customer’s Representative or
any other person ostensibly or apparently engaged or authorised by the Customer
to deal with BMCT and the Customer shall absolve BMCT, its employees and agents
in respect of such Claim and shall indemnify BMCT, its employees and agents in
respect of such Claim.
15. ACCESS TO AND PRESENCE AT BMCT TERMINALS
with the written permission of the BMCT and subject to such terms and
conditions as may be imposed by BMCT, all persons or property shall only enter
or exit any BMCT Terminal through entrances or exits or means designated by
BMCT for that purpose.
has the right to deny entry/exit to BMCT Terminal and any part of BMCT thereof
or revoke permission for the same, and to require the Customer to remove any
person or property accordingly at any time.
Customer shall, while it remains at BMCT Terminal, obey all directions given by
BMCT in respect of the Services / Facilities and the BMCT Terminals, including
without limitation as indicated by any signboard placed by BMCT.
Customer shall not cause or permit any waste matter to be discharged in any
manner onto any part of BMCT Terminal and no Vessel shall emit smoke, soot,
ash, grit or oil beyond levels deemed as reasonable by BMCT at any part of BMCT
17. PAYMENT FOR SERVICES OR FACILITIES
Customer will pay BMCT, on a dedicated Advance Payment Account, an amount
equivalent to fourteen (14) days of estimated total Contract Sum each time
before BMCT commences provision of Services and Facilities to the Customer
under this Agreement.
17.1.2.Without prejudice to Condition 17.1.1, BMCT shall also have the right to require the Customer to make
advance cash payments equal to the estimated Contract Sum for the Services
and/or Facilities requested, prior to every subsequent Container and/or Vessel
arriving at the BMCT Terminal and/or for provision of Services and Facilities at
the BMCT Terminals whether one off or otherwise.
17.1.3.If the Customer fails to pay the advances under this Condition 17 at least three (3) days prior to the Vessel berthing and/or Container
arrival at the and/or provision of Services and/or Facilities (as the case
maybe), BMCT shall not be obliged to perform the Services or provide the
Facilities and at BMCT’s option delay the provision of the Services and
Facilities until the advances are paid in full.
17.1.4.If, on the due date stated on the final invoice for the
Services/Facilities rendered, BMCT is unable to draw the billed Contract Sums
from the Advance Payment Account for reason attributable to the Customer, BMCT
shall, without prejudice to any other rights, be entitled to charge late
payment interest on overdue Contract Sums at the rate of 2% above the Prime
Lending Rate of State Bank of India (SBI) per month until the payment is made
to the satisfaction of BMCT.
17.2.Charges and other sums
consideration of the provision of the Services/Facilities by BMCT, the Customer
shall pay to BMCT all charges and other sums which shall be imposed by BMCT
under the BMCT Scale of Rates as updated from time to time or under the
Contract or at law.
additional shifting charge as prescribed under BMCT Scale of Rates will be
applicable for the refrigerated containers that have a variance of 5 degrees
from the declared temperature.
Customer shall bear or pay the goods and services tax or any other tax which
may be chargeable in respect of any payment made and/or due by the Customer
pursuant to this Contract.
as expressly agreed otherwise between the Parties:
The Contract Sum shall be:
without demand and without deduction not later than the date for payment
stipulated in the BMCT Scale of Rates as updated from time to time or under the
Contract, as the case may be; and
against the Goods and any other property delivered by the Customer to BMCT
under any other contract made between BMCT and the Customer.
The sums due from the Customer or any of its
Related Corporations to BMCT or any of its Related Corporations may be deducted
from any sum due from BMCT to the Customer or any of its Related Corporations,
including sums due pursuant to the Contract or otherwise. Each Party shall
procure that its Related Corporations comply with the terms of this Condition 17.3.1. (a).
the period for payment stipulated pursuant to Condition 17.3.1 (a) above:
if the Customer is or is
presumed or deemed to be unable or admits inability to pay its debts as they
fall due, suspends making payments on any of its debts or, by reason of actual
or anticipated financial difficulties, commences negotiations with one or more
of its creditors with a view to rescheduling any of its indebtedness;
if the value of the assets
of the Customer is less than its liabilities (taking into account contingent
and prospective liabilities);
if a moratorium is declared
in respect of any indebtedness of the Customer;
if any corporate action,
legal proceedings or other procedure or step is taken in relation to:
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration, judicial management, provisional supervision or
reorganisation (by way of voluntary arrangement, scheme of arrangement or
otherwise) of the Customer [other than a solvent reorganisation of the
composition or arrangement with any creditor of the Customer, or an assignment
for the benefit of creditors generally of the Customer or a class of such
appointment of a liquidator, receiver, trustee, judicial manager,
administrator, administrative receiver, compulsory manager, provisional
supervisor or other similar officer in respect of the Customer or any of its
of any mortgage, charge, pledge, lien or other security interest (or any other
agreement or arrangement having a similar effect) over any assets of the
Customer (including the Goods),or any analogous procedure or step is taken in
any jurisdiction; or
Customer ceases or threatens to cease to carry on the whole or any substantial
part of its core business as at the date of the Application;
Customer shall fail to perform or observe any term or condition of the
Contract, the Contract Sum shall become immediately due and payable and BMCT
shall be entitled to take all necessary steps to mitigate its risks and losses,
including without limitation such steps to suspend its provision of Services /
Facilities to the Customer.
prejudice to the generality of Condition 17.3.2.d
above, if due to any reason whatsoever (except the default of BMCT) the
Customer shall not pay the Contract Sum on or before the due date for payment:
BMCT shall be entitled to
engage the services of any person(s) to recover such sum from the Customer in
accordance with applicable law, at the Customer’s cost;
Notwithstanding Condition 17.3.3.a. above, the Customer shall in addition to
the Contract Sum and the costs described in Condition 17.3.3.a. above (if any), pay to BMCT interest on
such sums at the rate of 2% per month or such other rate as may be notified to
the Customer and the costs at the rate equivalent to the rate stipulated in the
BMCT Scale of Rates or in the Contract (as the case may be), which interest
shall be payable on a day to day basis from the date immediately after the due
date for payment to the date of actual payment of such sums, the costs and
interest thereon or to the date of expiry or sooner termination of the
Contract, whichever is earlier.
BMCT shall be entitled to:
forthwith upon notice to the Customer any or all of BMCT’s obligations under
the Contract including, without prejudice to the generality of the foregoing,
the provision of Services/ Facilities; and/or
the Contract forthwith upon notice to the Customer.
event that BMCT elects to suspend any or all of its obligations under the
Contract, such suspension shall subsist unless otherwise notified by BMCT. For
the avoidance of doubt, BMCT’s rights of suspension and termination are
cumulative and not in the alternative, and BMCT’s exercise of its right of suspension
shall not in any way be construed as a suspension and/or waiver of BMCT’s
rights, the Customer’s obligations under the Contract and/or the Customer’s
breach(es) of the Contract.
shall be of the essence for the purposes of this General Condition. If any time
period specified in these Conditions is extended in accordance with the terms
hereof then such time period shall be of essence of this Conditions.
18. THIRD PARTY CHARGES AND SUMS ON GOODS
to be free of third party charges or sums
Customer shall ensure that the Goods are delivered to BMCT are free of any
charges or sums due to third parties including any freight, port charges,
customs, taxes, duties, contributions, fines and any other costs.
shall be entitled to refuse to take delivery of any Goods in respect of which
BMCT is not satisfied that all such charges and sums have been paid.
shall not be liable for nor be obliged to recover any such unpaid charges or
sums or other charges or sums which have been overpaid or mistakenly paid by
the Customer to any third party.
of professional services
BMCT, in its absolute discretion, deems it necessary to seek professional
services or to commence legal proceedings or to take other legal measures in
relation to such unpaid charges or sums payable to the third parties, all costs
and expenses incurred by BMCT in respect of such services, proceedings and
measures shall be borne by the Customer.
that BMCT may have taken delivery of the Goods, the Customer shall be liable
for such unpaid charges and sums and shall indemnify BMCT, its employees and
agents against any claims against BMCT, its employees or agents arising in
respect of such unpaid charges and sums, regardless of the location of the Goods
at that point in time.
19. RIGHTS OVER GOODS AND VESSELS
19.1.Right of lien and retention
shall have the right of lien and retention over all property (including the
Goods) and all sums (including any sums collected by BMCT from third parties on
behalf of the Customer) and all documents which BMCT shall now or hereafter
hold of or for the Customer or which is now or hereafter due to the Customer,
to secure the payment of the Contract Sum and the discharge of all liabilities
of the Customer to BMCT under the Contract or at law.
the exercise of BMCT’s right of lien and retention, BMCT shall be entitled to
seize and detain such property, sums and documents until the sums due from the
Customer to BMCT are fully paid.
lien shall have priority over all other liens and Claims in respect of such
property, sums and documents.
19.2.Power to dispose of Goods remaining in custody
the Goods are not removed from the Facilities within the period stipulated by
BMCT under the Contract or if the Customer fails to pay to BMCT the Contract
Sum for any reason, BMCT may dispose of the Goods by sale or in such other
manner as it thinks fit provided that in the case of a hazard or an emergency
or if the Goods are of a perishable nature BMCT may direct or effect their removal
or disposal immediately or within such shorter period as BMCT deems fit.
shall render the surplus proceeds of sale (after deducting payments of any and
all sums due to BMCT, including the Contract Sum, and any other sums due to
third parties payable by BMCT in relation to the Goods and/or the Customer
whether under the Contract or any other contract or at law), if any, to the
Customer and any other person entitled thereto on demand, and, in case no such
demand is made within one year from the date of the sale of such property the
surplus shall be paid to the account of BMCT, whereupon all rights to the same
by such person shall be extinguished. If the proceeds of sale of the Goods by
BMCT pursuant to this condition is insufficient to satisfy in full any Claim of
BMCT under the Contract, under any other contract made between BMCT and the
Customer or at law, BMCT shall be entitled to recover the balance from the
Customer as a debt in any court of competent jurisdiction.
to distrain for non-payment of Contract Sum
the Customer fails to pay the Contract Sum in accordance with the Contract,
BMCT may, in addition to any other remedy, distrain or arrest the Vessel in
respect of which such Contract Sum is payable and the tackle, apparel or
furniture belonging thereto or any part thereof, and detain the same until the
amount so due is paid.
case any part of the Contract Sum or of the costs of the distress or arrest, or
of the keeping of the Vessel, tackle, apparel or furniture, remains unpaid for
a period of not less than 14 days after any such distress or arrest has been so
made, BMCT may cause the Vessel or other thing so distrained or arrested to be
sold, and with the proceeds of the sale may satisfy those charges, other sums
and costs, including the costs of sale remaining unpaid, rendering the surplus,
if any, to the master or owner of the Vessel on demand.
20. TRANSFER OF RIGHT OR INTEREST IN GOODS
shall not be obliged to recognise nor be bound by any transfer of ownership or
the right to delivery or possession or other right or interest in respect of
Customer shall be liable for all Claims arising from any refusal of BMCT to
recognise or to be bound by the intended transfer of ownership or other
interest in the Goods and shall indemnify BMCT, its employees and agents in
respect of such Claims.
there shall be any dispute between BMCT and the Customer or between BMCT and
any third party relating to the ownership of or other right, title or interest
in the Goods or if the Goods shall be attached, detained or seized by a third
party in any way, BMCT shall be entitled to detain the Goods until the dispute
is resolved by the court, Tribunal, Arbitral Tribunal or any other competent
judicial authority or otherwise settled, as may be the case.
shall be entitled:
seek any legal and other professional services or to commence any legal
proceedings or to take any measure which it deems necessary to protect its
interest in such dispute, attachment, detention or seizure or to resolve such
dispute, in which event the risk and expense of such services, proceedings and
measure shall be borne by the Customer; and
Condition 7, to retain the Goods and such other goods forming part of the Goods
at the risk and expense of the Customer until the resolution or settlement of
such dispute to BMCT’s satisfaction.
the transfer of any right or interest in the Goods, until and unless BMCT shall
have agreed to recognise and be bound by such transfer, the Customer shall
continue to perform and observe the conditions of the Contract (including the
obligation to pay the Contract Sum and all claims) even insofar as they relate
to any Services/Facilities provided after the transfer.
transferee deemed to be Customer
BMCT’s recognition and contract to be bound by the transfer, the transferee
shall be deemed to be the Customer for the purposes of the Contract and shall
also be jointly and severally liable with its predecessor in title for the
performance and observance of the Contract as described.
22. REMOVAL OF GOODS
the other provisions of the Contract, BMCT may require the Customer to remove
any Goods at any time by giving fourteen days’ prior notice or shorter notice
(as determined by BMCT) for perishable / hazardous Goods. The Customer shall
remove all Goods from the Facilities upon expiry or termination of the Contract
or as required by BMCT.
23. NO LIABILITY
shall not be liable for any Claim arising from the removal, disposal,
destruction and intermediate storage of the Goods and the Customer shall
indemnify BMCT, its employees and agents against such Claims.
24. OPERATING REQUIREMENTS, BMCT RULES AND THE CODE
24.1 Operating Requirements
Customer shall comply, and shall ensure that its employees, subcontractors and
agents comply, with BMCT’s operating requirements including without limitation
as set out from time to time in port circulars available to the Customer (which
the Customer hereby acknowledges as having read and agreed to) or hereafter
notified to the Customer, as well as all rules, conditions, policies and
directions set by BMCT in respect of the BMCT Terminal and activities therein.
Anti-Bribery and The Code
The Customer shall respect and as far as practicable, commit to implementing
an internationally recognized standard within
the areas of anti-corruption and anti-bribery. The Customer acknowledges it has read and has full knowledge of The
Code reflects PSA’s
business principles and offers guidance on what is expected of PSA employees in
dealing with critical issues.
The Customer shall
respect The Code and agrees to
work with PSA to comply with The Code.
25. FORCE MAJEURE
performance or observance by BMCT
shall be released from performing or observing its obligations under the
Contract if such performance or observance shall be prevented by any Force
performance or observance by Customer
If the Customer shall be prevented by any
Force Majeure from performing or observing its obligations under the Contract
and shall suffer undue hardship due to such Force Majeure, the Customer shall
immediately notify BMCT thereof and identify the Force Majeure, whereupon the
Customer shall be released from such performance or observance to the extent
that and for so long as such performance or observance shall be prevented by
the Force Majeure and such undue hardship.
General Condition 25.2 , the
Customer shall fulfil such obligation immediately upon the cessation of the
Force Majeure regardless of whether or not the Force Majeure shall cease during
or after the Contract Period.
General Conditions 25.2 and 25.3, if
the Force Majeure shall continue for a period longer than that which BMCT
considers reasonable for the release of the Customer from such performance or
observance, BMCT shall be entitled to terminate the Contract immediately by
notice to the Customer.
26. LIABILITY AND INDEMNITY
where expressly agreed otherwise between the parties:
BMCT shall not be liable
for any Claim arising from:
delay or error in the delivery of the goods to BMCT or re-delivery of the goods
to the customer;
of any statutory duty (to the extent permitted by such statute);
other cause unless it is first proven by the Customer that such Claim has
arisen from the gross negligence or the unlawful act or omission of BMCT.
of any Claim against BMCT,
BMCT shall not be liable, in each contractual year (i.e. a period of twelve
(12) months from the date of the commencement of the Contract), for:
exceeding INR 50 Lakhs (Indian Rupees Fifty Lakhs) in aggregate per incident or
series of incidents; or
Any damage to or loss of
goods in a sum exceeding:
Lakhs (Indian Rupees Ten Lakhs) in the case of a Vessel;
Lakhs (Indian Rupees Five Lakhs) in the case of a Container of up to 20 feet in
Lakhs (Indian Rupees Ten Lakhs) in the case of a Container exceeding 20 feet in
Lakhs (Indian Rupees Ten Lakhs) in the case of a package or unit of such Goods;
reasonable cost of repairs as agreed between surveyor(s) appointed by BMCT and
is less; or
Any loss of profit, consequential loss or any
indirect loss or damage
any third party Claim made against BMCT.
that BMCT is not liable for any Claims less than INR 1 Lakh. (Indian Rupee One
Any death or injury
suffered by any person on board any Customer Vessel while at berth pursuant to
this Agreement, provided that BMCT’s liability will not exceed INR 5 Lakhs
(Indian Rupee Five Lakhs) for any one incident.
shall not be liable for any Claim arising before delivery of the goods to BMCT
or after re-delivery of the goods to the Customer.
limitation of liability granted under this General Condition 26 shall relate to the whole of any losses
and damages which may arise upon any one incident or series of incidents,
although such losses or damages may be sustained by more than one person, and
shall apply whether the liability arises at common law (whether based on a
claim or action in contract, tort (including negligence), warranty, indemnity,
statutory duty or other legal or equitable grounds) and, or under any written
law and notwithstanding anything contained in such written law. These remedies
are exclusive in nature and the Customer agrees that the Customer shall waive
its right to any damages that may be arise under any and all applicable laws.
Claim will be void if the Customer shall not have notified BMCT thereof in
Of damage alleged to have
been caused to a vessel or any goods, and to permit inspection thereof, prior
to such vessel or goods leaving the facilities or the BMCT;
Within one week after the
occurrence of the event giving rise to the Claim; or
Within one week after the
re-delivery of the goods to the customer,
Such notified Claim will
become void if no legal proceedings in respect thereof are commenced within 6
months after the date of notice.
any Claim shall be made against BMCT by more than one person and BMCT shall
decide to pay compensation in respect of the Claim, BMCT shall be entitled to
apportion such compensation among such persons according to the extent of
proven loss or damage suffered by each of them.
a container, pallet or similar article is used to consolidate goods,
notwithstanding that the packages or other shipping units have been separately
enumerated in the bill of lading as having been packed or consolidated in such
container, pallet or article, the resultant consolidation shall be deemed and
shall count as one package or shipping unit.
Customer shall be liable for and shall fully indemnify BMCT its employees and
agents against any liability for any Claim, including charges, costs and
expenses, in respect of:
any non-compliance by the
Customer with this Condition 26.3;
loss of or damage to any
property, death or injury suffered by any person caused by any act or omission
or misrepresentation, negligence, fraud, wilful default or misconduct of or
breach of the Contract or breach of statutory duty by the Customer, its
employees or agents;
any failure by the Customer
to perform duly and punctually any obligation, covenant, agreement or
undertaking on the part of the Customer under the Contract;
compliance by BMCT with any
law or obligation in respect of the Goods or Vessel;
compliance by BMCT with any
instructions issued by the Customer, its employees or agents; and
the exercise by BMCT of any
of its rights in the event of any of the foregoing or any misrepresentation,
negligence, fraud, wilful default or misconduct of or breach by the Customer
its employees or agents.
the other provisions of the contract, no matter or thing done and no contract
of any kind entered into by BMCT and no matter or thing done by any employee or
agent of BMCT or any other person whomsoever acting under the direction of BMCT
shall, if the matter or thing was done or the Contract was entered into bona
fide for the purpose of providing the Services/Facilities, subject any such
person personally to any action, liability, Claim or demand whatsoever in
Customer expressly acknowledges that Condition 26 satisfies the requirements of
reasonableness under any applicable law relating to the effectiveness of
contractual provisions that seek to exclude or limit liability and that it
shall be estopped from claiming the contrary at any future date in the event of
any dispute with BMCT concerning BMCT’s liability hereunder. Or nothing in the Contract
shall exclude or in any way limit BMCT’s liability for fraud, or for death or
personal injury caused by its negligence, or any other liability to the extent
the same may not be excluded or limited as a matter of law.
27. DAMAGE TO BMCT TERMINAL OR OTHER BMCT PROPERTY
damage is caused to any BMCT Terminal or other property arising out of the
provision of the Services/Facilities, BMCT may in its discretion carry out such
repairs or replacements as it thinks necessary, in which event the cost of such
repairs or replacements, together with all interests, expenses and legal fees
that may be incurred in the collection of such costs, shall be borne by the
28. CUMULATIVE RIGHTS AND REMEDIES
rights and remedies under the Contract are cumulative and shall not prejudice
any other rights or remedies of BMCT contained in the Contract or at law, or
the right of action or other remedy of BMCT for the recovery of any sums due to
BMCT from the Customer or in respect of any breach of the Contract by the
Customer shall effect adequate insurance of the Goods for so long as they
remain at any BMCT Terminal, except where expressly agreed otherwise between
BMCT and the Customer.
30. COMPLIANCE WITH LAW
Parties shall comply with all laws, rules and regulations affecting the
Contract. The Customer shall obtain all requisite permissions, approvals and
consents from the competent authorities and indemnify BMCT against any fines,
penalties, losses, costs or expenses incurred by BMCT in respect of any
non-compliance with such laws, rules and regulations.
31. ASSIGNMENT OF CONTRACT
as expressly permitted by the Contract, the rights and obligations of the
Customer shall not be assigned to or shared in any way with any person without
BMCT’s prior written consent.
32.1.No Party shall disclose to any other person any information related
to the Contract without the prior consent of the other Party.
Condition 32.1, either Party may disclose
information related to the Contract to:
Party’s agents or contractors who have a need to know the same provided that
such agents and contractors are first subject to the same confidentiality
restrictions contained herein;
other person pursuant to a legal requirement to disclose or pursuant to any
judicial authority which requires disclosure; or
other person to the extent that such information shall already be known to such
Party not due to a breach of this Condition 32
or is already a matter of public knowledge through no fault of the disclosing
33. NON-DEMISE AND NO GRANT OF INTELLECTUAL PROPERTY
Contract shall not confer on the Customer any lease, tenancy or other interest
in or possession of the Facilities or any BMCT Terminal, which possession is
retained by BMCT.
express or implied intellectual property right or licence belonging to either
Party is hereby granted to the other Party.
the purposes of this Condition, the following expressions shall have the
following meanings unless the context requires otherwise:
“Data Message” means a
notice or information generated, sent, received or stored by electronic,
optical or similar means acceptable to BMCT, including but not limited to
Electronic Data Interchange, electronic mail, telegram or telex;
Interchange” means the electronic transfer from computer to computer of
information using an agreed standard to structure the notice or information;
“Originator” in relation to
a Data Message means the Customer or any Customer's Representative by whom or
on whose behalf the Data Message purports to have been sent or generated prior
forms of writing
the Contract requires any notice or information to be in writing, that
requirement is met by electronic mail if the notice or information contained
therein is accessible so as to be useable for subsequent reference.
there exists a reliable
assurance as to the integrity of the notice or information from the time when
it was first generated to its final form, as a Data Message or otherwise; and
where it is required that
that notice or information be presented, that notice or information is capable
of being displayed to the person to whom it is to be presented.
the purposes of Condition 34.3.1:
the criteria for assessing
integrity shall be whether the notice or information has remained complete and
unaltered, apart from the introduction of any endorsement and any change which
arises in the normal course of communication, storage and display; and
the standard of reliability
required shall be assessed in the light of the purpose for which the notice or
information was generated and in the light of all the relevant circumstances.
34.4.1.Where the Contract requires a signature of
the Originator, that requirement is met in relation to a Data Message if:
a method is used to identify the Originator and to indicate their
intention in respect of the notice or the information contained in the Data
that method is as reliable
as appropriate for the purpose for which the Data Message was generated or
communicated, in the light of all the circumstances, including the Contract or
is proven in fact to have fulfilled the functions described in Condition 34.4.1.a, by itself or together with further evidence.
Data Message is that of the Originator if it was sent by the Originator itself.
between the Originator and BMCT, a Data Message is deemed to be that of the
Originator if it was sent:
by a person who had the
actual, ostensible or apparent authority to act on behalf of the Originator in
respect of that Data Message; or
by a system for generating,
sending, receiving, storing or otherwise processing data messages, programmed
by or on behalf of the Originator to operate automatically, and such Data
Message shall not be denied validity or enforceability solely on the ground
that no natural person reviewed or intervened in each of the individual actions
carried out by the automated systems.
Condition 34.4.4 shall
not apply as of the time when BMCT, its servants or agents have both received
notice from the Originator that the Data Message is not that of the Originator
and BMCT, its servants or agents had reasonable time to act accordingly.
a Data Message is that of the Originator or is deemed to be that of the
Originator, BMCT, its servant or agent is entitled to act on that assumption,
then, as between the Originator, and BMCT, its servants or agents, BMCT, its
servants or agents is entitled to regard the Data Message as received as being
what the Originator intended to send and to act on that assumption.
its servant or agent is entitled to regard each Data Message received as a
separate Data Message and to act on that assumption, except to the extent that
it duplicates another Data Message and BMCT, its servant or agent knew that the
Data Message was a duplicate.
where expressly agreed otherwise, BMCT, its employee or agent is deemed to have
received a Data Message when it acknowledges receipt by any communication in
writing by BMCT, its employee or agent sufficient to indicate to the sender
that the Data Massage has been received.
34.6.1.Subject to Conditions 34.1 to 34.5
(inclusive), any notice to be given by either Party under the Contract shall be
deemed to be received by the other Party if sent by:
hand or local urgent mail
or express mail or other fast postal service, or
registered or representative office of the recipient, or by telex, facsimile or
other electronic media, followed immediately by a posted confirmation copy.
the provisions of Condition 34.6.1, BMCT
may in its absolute discretion where BMCT considers appropriate or conducive to
efficiency or expediency, choose to give any notice to the Customer required
under the Contract, by writing addressed to users of the Services/Facilities
35. PERSONAL DATA PROTECTION
the purposes of this Condition 35 and
unless the context requires otherwise, “Personal Data” means data, whether true
or not, about an individual who can be identified:
from that data; or
from that data and other
information to which BMCT and/or the Customer has or is likely to have access;
and shall include such data
which, under Indian applicable law, constitute “personal information” or
“sensitive personal data”.
the event that the Customer provides Personal Data to BMCT in the course of
exercising any rights, fulfilling any obligations, or doing anything related to
or arising out of the Contract, the Customer undertakes and warrants that it
has obtained all necessary consents required under the Indian laws for BMCT to
collect, use and/or disclose such Personal Data for all the relevant purposes
which BMCT requires.
Customer agrees to fully indemnify BMCT against any and all actions, Claims,
legal costs, damages and/or other expenses which may arise out of the
Customer’s breach of Condition 35.2.
36. CONSENT OR WAIVER
consent or express or implied waiver by BMCT to or of any breach of any General
Condition or any covenant or duty of the Customer shall be construed as a
consent or waiver by BMCT to or of any other breach of the same or any other
Condition, covenant or duty by the Customer and shall not prejudice in any way
the rights, powers and remedies of BMCT contained in the Contract or at law.
37.1.If and to the extent that amicable settlement of any dispute arising
hereunder or in connection with the Contract, including any question regarding
its existence, validity or termination, may not be possible, such dispute shall
be referred to and finally resolved by arbitration administered by the
Singapore International Arbitration Centre (“SIAC”) in accordance with the
Arbitration Rules of the Singapore International Arbitration Centre ("SIAC
Rules") for the time being in force, which rules are deemed to be
incorporated by reference in this Condition. The seat of the arbitration shall
be Mumbai, India.
anything to the contrary, the provisions of Part I of the (Indian) Arbitration
and Conciliation Act, 1996, shall apply to this Contract.
Tribunal shall consist of three arbitrator. The language of the arbitration
shall be English.
so far as it may be necessary that any award, instrument or order issued by the
arbitrators or any appeal therefrom should be served on the Customer or any
proceedings to be taken for the enforcement of the Contract, the Customer
hereby agrees and consents that the service of such award, instrument or order
on the Customer in accordance with Condition 34.6, shall be in all respects as
operative and effective as if the same were its office.
38. SURVIVAL OF OBLIGATIONS
the complete performance of the Contract or the termination of the Contract in so
far as it relates to the Customer, the terms and conditions of the Contract
shall remain in full force and effect between the BMCT and the Customer insofar
as such terms and conditions shall remain unfulfilled or relevant.
39. STAMP DUTY
Customer shall bear the costs of and incidental to the stamping of all
documents evidencing the Contract and the duplicate thereof.
40. COMPLIANCE WITH LAWS
any inspection, verification, testing or any other right in relation to the
Goods provided under the Contract to BMCT (whether such rights are exercised or
not by BMCT), all obligations and liabilities in respect of any Goods or
actions related thereto not being in compliance with applicable law shall be of
41. FURTHER ASSURANCE
Parties agree to do all such further acts and things, execute and deliver all
such additional documents, so as to give full effect to the terms of these
42. GOVERNING LAW
Contract will be governed by, and construed in all respects in accordance with,
the laws of India.
42.2.Subject to Condition 37, the Customer
hereby irrevocably agrees for the benefit of BMCT that the courts of Mumbai
shall have exclusive jurisdiction over any dispute arising under, out of or in
connection with the Contract (including any question regarding its existence,
validity or termination), save that nothing in this Condition 42.2 shall limit the right of BMCT to take
proceedings against the Customer in any other court of competent jurisdiction,
nor shall the taking of proceedings in any one or more jurisdictions preclude
the taking of proceedings in any other jurisdictions, whether concurrently or
not, to the extent permitted by the law of such other jurisdiction.