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General Terms
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GENERAL TERMS AND CONDITIONS FOR CONTRACTING OPEN CARGO S.L. FOR THE HANDLING OF GOOD’S TRANSPORTS

MADRID MERCANTILE REGISTER
Presentation Deposited on September 12, 1995, vol. 9727 Book, 0 Page: 202
Section: 8 Page: M-156 303 Registration: 1

1st Clause: CONTRACT BASIS

All services invoiced by Open Cargo will be regulated exclusively by this general terms and conditions, which are fully accepted by the customer at the moment that the service is ordered and in response to the meaning of the same.

Likewise, the customer accepts these general terms and conditions apply to any order transmitted either verbally, by telex / fax, or by any other means, even when there’s no specific reference to these terms and conditions.

The financial limitations of liability set out in the clauses of these general terms and conditions apply to all claims (extrajudicial and/or judicial – civil, criminal, administrative or of any other order) that may be filed against Open Cargo. The customer furthermore commits to notify any third party that may have hireed with him the services that the customer subcontracts with Open Cargo the existence, validity and acceptance of these terms and conditions.

2nd Clause: PARTIES DESCRIPTION

2.1.-OPEN CARGO.- Is a freight forwarding and/ or transport brokerage company. As such and by virtue of an manifested request received by a third party(customer), will assume the goods transportation in conformity with the instructions received by the its customer. It will organize the goods transportation by hireing other’s means of transport and never its own means. Likewise OPEN CARGO also offers warehousing and distribution services, etc.

OPEN CARGO will issue it corresponding invoice as the consideration for the services provided.

2.2.-Customer/Sender/Shipper: Natural person or company hiring OPEN CARGO’s services for the goods transports handling from one place to another, it storage, etc.

As the consideration for the services received it will be the person or company directly obliged to the payment of the invoices issued by OPEN CARGO, regardless and without prejudice to the rights that OPEN CARGO can hold against those beneficiaries of it services, which aren’t to be waived.

3rd Clause: TRANSPORT DOCUMENTATION.

The transport hired will be supported by a bill of lading, airway bill, delivery note, etc….issued by OPEN CARGO that will comply with the applicable national and international regulations in the matter.

4th Clause: GOODS DESCRIPTION AND PACKAGING

It is guaranteed to OPEN CARGO the correctness in the goods declaration in relation to its characteristics, description, marks, numbers, quantity, weight and volume, holding as responsible the sender/shipper and/or consignee for the losses, damages, prejudices and/or penalties suffered by third parties or OPEN CARGO itself for the incorrectness of such information. The customer also guarantees that the packaging used is correct, answering for those incorrect, defective or inappropriately used, when it causes damages or prejudice to the goods, handling equipments used or transport means or any other goods or persons.

Warranties and liabilities referred to in the preceding two paragraphs shall remain in effect even if the inaccuracies and deficiencies appear in operations not directly executed by OPEN CARGO, who will be also indemnified for any additional expenditure incurred by such causes.

The sender / shipper is obliged to inform OPEN CARGO, at the time of requesting the service on the dangerous nature of the goods he delivers for transportation, and the precautions that, if necessary, should be taken.

In case of failure or insufficient information, the sender/shipper will answer for all prejudices caused by the goods, having OPEN CARGO full rights to reimburse all expenses, damages and prejudices caused by such reasons and turning completely exempt if the goods are to be discharged, destroyed or neutralized, as per the circumstances requirements, and without payment of compensation.

5th Clause: LEGAL LIABLILITY

OPEN CARGO will organize the transport, on carriage or storage, given the case, for the entrusted cargo at his own discretion, except if the customer’s instructions are otherwise and expressly through the before mentioned means.

OPEN CARGO, as a freight forwarder or transport broker, will be responsible of the transport coordination and will answer for the non-fulfillment of its contractual liabilities, in the cases and circumstances described in the National laws and in the applicable international agreements, and always under the same circumstances and occupying the same position as if it were the effective transport supplier.

OPEN CARGO as a warehouse will be only responsible for the damages occurred to the goods as a consequence of the non-fulfillment of its contractual liabilities in the cases and circumstances described in the applicable National regulations. Its liability will begin at the moment that the goods are delivered to OPEN CARGO’s accredited staff and will finish in the moment that the goods leave the warehouse for transport. Its legal liability is defined as follows:

5.1.- OPEN CARGO will be responsible only for the physical damages caused to the goods, in any case not reaching such liability to property or consequential prejudices.

5.2.- Any legal action directed against any OPEN CARGO’s employee and/or staff, whether these are permanent or temporary, will only be possible within the limits and the circumstances referred at 5th and 6th clauses.

5.3.- Such limits can’t be overcome no even in the case legal actions are executed against OPEN CARGO its employees and/or staff, whether these are permanent or temporary, and such actions are executed jointly or separately, being understood that such limit is the maximum for all those involved.

5.4.-OPEN CARGO will only answer for the selection and instructions given to the agents or subcontracted as carriers, forwarders, warehouse operators, etc. but will be released from any liability if the agent selection has been done following the customer/shipper’s or any of the parties involved with the goods, the same when the transport instructions have been transmitted to the subcontracted agents as per the transport orders received from the shipper. In this case OPEN CARGO may resign to his rights against the subcontracted agent and can cede them to the customer/shipper.

5.5.-In any case, the liabilities of OPEN CARGO can never be above to that of those it recurs for the execution of the services.

6th Clause: LIMITATION OF LIABILITY

6.1.- Always considering the highest goods value, OPEN CARGO, will only answer in the cases and in conformity to the financial limits specified as follows:

-The national inland good’s transportation and any other activities not mentioned in the following paragraphs (as in example for the warehouse and distribution) will be subject to that disposed at the Law of Inland Transport Ordination (LOTT for its Spanish acronym) and OPEN CARGO’s liability raises, in its due case and as a maximum to the amount of Euros (€) 4.5 per kilogram of the damaged or lost goods’ gross weight

-The international inland good’s transportation will be subject to the Agreement related to the International transport by Road Contract (CMR), and OPEN CARGO’s liability raises, in its due case and as a maximum, to the amount of SPR 8.33 per kilogram of the damaged or lost goods’ gross weight

-The international sea or air good’s transportation will be subject to the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading – Hague-Visby Rules- and OPEN CARGO’s liability raises, in its due case and as a maximum, to the amount of SPR 17 per kilogram of the damaged or lost goods’ gross weight

6.2.- OPEN CARGO will only answer for the delay on the goods delivery in the cases that is expressly established in the applicable legal regulation, in which case it will answer in the terms determined by such regulation, in no case to exceed the equivalent to the remuneration that should be paid in virtue of the contract held as a forwarder. In all cases the delivery timeframes provided to the customer will always be understood as estimated, and will be subject to the vicissitudes of the means of transport used. In case that the customer desires to be granted the delivery of the goods within a specific timeframe this must be expressly instructed at the moment of hiring the transport services.

6.3.- When the liability derive from acts or events occurred during the transport execution, if the forwarders is to subrogate in these, in any case can exceed to that assumed in its favor those railroad, sea freight, airfreight, inland, warehouse and storage companies, or any other intermediary intervening in the course of the transport according to the applicable national and international regulations.

6.4.- These limitations will be applicable to all claims directed against OPEN CARGO, no matter regardless that the claim is based in the contractual extra-contractual liabilities and even if it’s in the form of a lawsuit, counterclaim or any other.

6.5.- By Special Drawing Rights its understood to be the accounting unit as it has been defined by the International Monetary Fund.

7th Clause: DISCLAIMER

7.1.- OPEN CARGO won’t be held responsible for any lost, damage or expense, such a loss of revenue, lost of customers, penalties, lawsuits for losses due to the depreciation or penalization clauses, consequential damages, currency exchange fluctuations, fees or taxes raised by the authorities, claims due to the raise in the price or quoting of the lost or damaged goods, or similar whichever be the cause.

7.2.- Likewise, OPEN CARGO won’t answer for the consequences of any order originated or has its cause in the activities, behavior or instructions from a third party.

7.3.-OPEN CARGO will be similarly exonerated of any liability when during its production any of the following circumstances occur:

-Fault or negligence of the customer or it authorized representative.

-Defective or missing packaging, labeling or loading, as long as OPEN CARGO was not in charge of providing such packaging, labeling or loading of the goods. Likewise, OPEN CARGO won’t be held responsible for the good’s packaging of which the content can’t be verified.

-War, rebellion, revolution, insurrection, usurpation of power or confiscation nationalization, requisition or similar by the order of a government entity of the local public authority.

-Strikes, lock outs or any other work conflicts.

-Damaged caused by nuclear energy

-Natural disasters

-Force Majeure

-Stealing

-Inevitable circumstances for OPEN CARGO or that can’t be foreseen.

-Inherent Vice

7.4.- OPEN CARGO won’t be held responsible if the goods has been transported by the customer of his representative.

7.5.-OPEN CARGO won’t be held responsible of the consequences derived from the loading or unloading operations that have not been duly coordinated / made in its due time.

7.6.- OPEN CARGO won’t be helps responsible for the lost, damages or expenses derived or in relation with inaccurate or defective information provided by customer/shipper regarding the quantity, content, marks or goods description.

8th Clause: GOOD’s INSURANCE

8.1.-OPEN CARGO won’t insure the lost or damage during the on carriage, warehouse or transport of the goods as long as the customers instructs in written to do so, in which case must pay for the corresponding amount.

8.2.-When OPEN CARGO it expressively instructed by the customer/shipper to contract an insurance for the goods, it will always contract the insurance in customer’s/shipper’s behalf as its agent.

8.3.-The terms and conditions of the insurance will be shown in the policy contracted, which will be at customer’s disposal.

8.4.-OPEN CARGO won’t be held responsible for the possible disputes or claims that may arise between the customer/shipper and the insurance company contracted, as a consequence of the insurance policy contracted for the goods.

9th Clause: CONTRACTED SERVICES PRICES

The transport and other services subject to OPEN CARGO’s activity will be understood as contracted in accordance with the existing rates at the moment of contract and within the limits provided therein. In absence of such rates, the contract will be done at the actual market rates related to the place of contracting. Additional expenses caused as a consequence from acts or events occurred after the service contract, or in due case, by the time of transport documents issuance, will be on customer’s account, as long as these are duly supported and it’s not caused by fault or negligence from any of those that have participated in providing the contracted services.

The payment of any expense or services provided by OPEN CARGO will be made in cash unless when especial conditions are previously agreed.

10th Clause: PROTEST IN OF CASE DAMAGED GOODS / DAMAGE TO THE GOODS

10.1.-At the moment of the delivery of the transported or stored goods, the receiver must verify the state of the goods received, as well as the quantity and weight of the pieces delivered. In case an apparent failing, damage or missing pieces, the receiver must leave a record of it in the transport document at that very moment.

10.2.-In case the there are no apparent failings, damages or missing pieces at the time of delivery, the received must leave record of his reserves in written prior to 24 hours from the time of delivery, or in the terms and conditions specified in the transport document if these are inferior.

10.3.-The exposed in the previous points 10.1 and 10.2 is understood as a requisite of procedure, therefore, if this is not fulfilled, the right to claim will expire.

11th Clause: EXPIRATION

Under penalty of forfeiture, the maximum period during which actions may be brought against OPEN CARGO, their staff and / or employees shall be 1 year from the date of delivery of the goods or in the case of total loss, from the hypothetical date on which the goods should have been delivered.

Notwithstanding the foregoing, the deadline for claims arising out of the actual implementation of the various operations of transport, shall comply with the time periods that are indicated in the transport documents, bills of lading, etc.., Or, if the standards laid down in national or international conventions governing different modes of transportation, beginning to take the term depending on what such documents or agreements may be established.

OPEN CARGO billings for transportation and storage services, including costs and expenses, under no circumstances can be accumulated to other demands. In absolutely no event unless otherwise provided by law, may the customer retain the amounts due to OPEN CARGO, nor allege payment with compensations due to outstanding claims.

12th Clause:.- LIMITATION OF LIABILITY OF THIRD PARTIES.

OPEN CARGO is authorized to select and hire freight forwarders, carriers, warehouse operators, customs brokers and any other agents when requested by the transport, storage, handling and delivery of goods, all of whom are considered independent agents OPEN POSITION.

The goods will be entrusted to such agencies subject to all conditions (such as limitations of liability for loss, damage, expense or delay in delivery), rules, regulations, terms and conditions whether written, printed or stamped, appearing in waybills, bills of lading, transport documents and receipts issued by such forwarders, carriers, warehouse operators and so on. Or those contained in the national or international agreements.

13th Clause.- RESPONSIBILITY OF THE EMPLOYEE / STAFF

Any direct legal action against OPEN CARGO’s employees and / or staff whether permanent or temporary, for loss or damage of goods will only be possible within the limits specified in clauses 5 and 6.

In case of joint legal action against OPEN CARGO and its employees, whether permanent or temporary, the maximum compensation shall not exceed the limits specified in clause 5.

14th Clause: LIEN

Regardless of any reason, OPEN CARGO has the right in general and in particular to retain the goods transported from customers who have not paid the amounts due to them under the services as required. May assert its right by any means it deems appropriate and is allowable under the law.

If the goods on which it intends to exercise the lien is lost or destroyed, OPEN CARGO will have the same rights mentioned above in respect of claims that are paid by insurance companies, transport companies and so on.

15th Clause: APPLICABLE LAW AND JURISDICTION.

All agreements shall be governed by and construed in accordance with Spanish law.

Any disputes that may arise resulting from the transport organization (such as claims for damage or loss to goods, delays etc ...) will be subject to the law and jurisdiction expressed in the back of the waybill or bill of lading issued by effective carriers contracted by OPEN CARGO

Notwithstanding the foregoing, and in cases not provided for above, any dispute or action arising from or exercised against OPEN CARGO, its employees and / or dependents will be subject to Spanish jurisdiction and, within it, to the Courts and courts of Madrid, expressly waiving the client / shipper to its own jurisdiction if it had one.

16th Clause: INDEPENDENCE.

The terms of these general conditions of contract are independent of each other and if any part of these conditions is declared invalid or void, this shall not affect the validity or enforcement of compliance with any of the other parts of the conditions.

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