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GDP USA LLC - Conditions of Carriage
By tendering a Shipment to GDP USA LLC for Carriage, Shipper agrees on behalf of all Shipping Parties that (a) these Conditions govern GDP USA LLC’s Carriage of the Shipment, (b) GDP USA LLC is not a common carrier, and (c) these Conditions impose no obligation on GDP USA LLC to accept tender of any item for Carriage. Capitalized words used in these Conditions that are not defined in the body of these Conditions have the meaning given to them in the attached Exhibit incorporated herein.
1. Shipper’s Warranties & Covenants
1.1 Shipper represents and warrants that:
A) Shipper is the owner (or authorized agent of the owner) of the Shipment and is authorized to tender the Shipment for Carriage and execute the Waybill;
B) All information on the Waybill is accurate, complete and current, and the Declared Value for Carriage, if any, does not exceed the value of Shipper’s actual interest in the Shipment upon delivery at the designated destination;
C) The Shipment is prepared, packed, labelled and marked properly and sufficiently for Carriage and in accordance with Applicable Law, Shipper has obtained all applicable Licenses required for the Carriage and these Licenses will be effective for the Carriage’s duration;
D) None of the Shipping Parties is a Prohibited Person or is owned or controlled by, or is acting on behalf of, a Prohibited Person;
E) No member of the Courier Organization will be subject to any sanction, penalty or claim of any type due to the Carriage of, or other transaction involving, the Shipment, including a claim for infringement of third-party intellectual property rights; and,
F) The Shipment does not include: (i) Weapons, ammunition, explosives or items likely to harbor or encourage vermin or pest;(ii) Restricted Item the possession or Carriage of which per the Waybill violates Applicable Law or any other item prohibited for Carriage by Applicable Law or a Relevant Authority; or (iii) Currency, bullion, negotiable cash equivalents or securities.
1.2 For each Shipment, Shipper agrees to:
A) Indicate on the Waybill if the Shipment’s contents are fragile, prone to damage during Carriage or need special handling for safe Carriage;
B) Prior to tender, notify GDP USA LLC of any temperature control requirements for the Shipment, including its contents and required temperature range;
C) Prior to tender, notify in writing GDP USA LLC of the exact nature of any Dangerous Goods in the Shipment and, if tender is accepted, comply with Applicable Law and all GDP USA LLC requirements relating to their Carriage;
D) Promptly provide in writing all information necessary for GDP USA LLC to perform the Carriage, including information about the Dangerous Goods as required by Applicable Law;
E) Comply with Applicable Law and all requirements of any Relevant Authority relating to the Shipment, including License requirements; and
F) Ensure the consignee’s proper completion of all import documentation.
1.3 Upon Shipper’s breach of any representation, warranty or covenant herein, GDP USA LLC may terminate Carriage. At such time, GDP USA LLC’s responsibility for Carriage and the Shipment ceases in full and GDP USA LLC may place the Shipment at any location it selects for retrieval by Shipper at Shipper’s sole expense. Thereafter, GDP USA LLC will (a) give Shipper written notice of any action taken under this clause, and (b) be entitled on demand to the full Charges in respect of such Shipment, together with additional compensation for all costs resulting from such breach and GDP USA LLC’s actions under this clause.
2. Carriage & Delivery
2.1 GDP USA LLC reserves the right to select the means and route of transport (with stopovers) for the Shipment and may consolidate any Shipment with others. Final Charges will be based on actual means and routes selected by GDP USA LLC for Carriage. Carriage of any Shipment by rail, sea or inland waterway is (a) arranged by GDP USA LLC as agent for Shipper and without liability of any type to GDP USA LLC, and (b) subject to the conditions of carriage of the rail, shipping or inland waterway carrier contracted to carry the Shipment.
2.2 GDP USA LLC may subcontract any part of the Carriage to any member of the Courier Organization on any terms whatsoever as determined solely by GDP USA LLC, provided GDP USA LLC remains liable for such performance. The shipper will make no claim of any type, whether based in contract, tort, bailment or any other legal theory, against any member of the Courier Organization other than GDP USA LLC in respect of the Shipment and/or Carriage. Without prejudice to the foregoing, all defenses, exemptions, immunities, limitations and rights of GDP USA LLC hereunder apply to the entire Courier Organization and each member thereof has the right to enforce them as if such provisions were expressly for its benefit, and in entering into the Waybill, GDP USA LLC, to the extent of these provisions, is acting for itself and as agent and trustee for such persons.
2.3 If delivery to the consignee at the address provided on the Waybill cannot be made for any reason beyond GDP USA LLC’s control (including due to the consignee’s refusal or a Force Majeure Event): (a) GDP USA LLC will return the Shipment to the place of tender or other location selected by GDP USA LLC, acting reasonably, and notify Shipper; (b) Shipper will pay on demand all costs and expenses, including storage charges, arising therefrom; and (c) GDP USA LLC has no liability on account thereof.
2.4 Any member of the Courier Organization is permitted to open and inspect (including through x-ray) a Shipment’s contents, including any electronic data or information therein. GDP USA LLC is not responsible or liable in any manner as a result of such inspection, including due to any delay or damage resulting therefrom. Promptly upon request, Shipper will provide any password required to access such electronic data or information.
2.5 If Shipper has not appointed a broker for customs clearance, Shipper (a) appoints GDP USA LLC, other members of the Courier Organization and third party brokers selected by them on behalf of Shipper to act as Shipper’s agent (and not as principal) in this capacity in all respects, and (b) will promptly provide all information and execute all documents necessary to confirm the appointment and comply with Applicable Law.
2.6 GDP USA LLC retains exclusive ownership of all packaging containers (inclusive of gel packs and temperature loggers) rented or leased to Shipper. Shipper is solely responsible for all loss or damage (normal wear and tear excluded) to such containers and is responsible for their prompt return to GDP USA LLC following delivery.
2.7 GDP USA LLC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND AND DISCLAIMS AND EXCLUDES ALL WARRANTIES AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW TO THE FULLEST EXTENT PERMITTED.
3. Charges, Fees, Advances; No Setoffs
3.1 Shipper will pay GDP USA LLC fees for Carriage calculated in accordance with (a) the tariff applicable at the time and location where the Shipment is tendered for Carriage, or (b) the rates, charges or fees agreed by Shipper and GDP USA LLC. Surcharges may apply for specific elements of the Carriage, including advancements and the handling of Dangerous Goods. All Charges are exclusive of (x) Relevant Authority Levies, and (y) advances and disbursements to third parties made by GDP USA LLC in connection with the Shipment. Any Relevant Authority Levies or such advances or disbursements will be for Shipper’s sole account and paid by Shipper or reimbursed to GDP USA LLC on demand if first paid by GDP USA LLC.
3.2 Charges are payable in full on demand, unless GDP USA LLC, in its sole discretion, grants credit on any amount payable to GDP USA LLC, in which case the Charges are due in full in GDP USA LLC’s account in available funds no later than 30 days of invoice date. Shipper’s payment obligations hereunder are absolute, unconditional and not subject to reduction, set-off, counterclaim or delay. GDP USA LLC may require pre-payment of anticipated Relevant Authority Levies or third-party advances or disbursements and any such pre-payment will be held without interest. If any payment is not received by the due date, in addition to other remedies, GDP USA LLC will charge a per-day late payment fee calculated at the rate of the lesser of (a) 18% per annum and (b) the highest amount permitted by Applicable Law.
4. Liability for Loss, Damage, Delay
4.1 GDP USA LLC’s liability for loss of, or damage to, a Shipment for any reason is determined and limited in accordance with Compulsory Legislation. Absent Compulsory Legislation, GDP USA LLC will only be liable for loss or damage to a Shipment caused by its negligence or willful misconduct and such liability will not exceed the greater of (a) 22 Special Drawing Rights per kilo, and (b) US$150; provided in no event will GDP USA LLC’s liability exceed the lowest of the Shipment’s replacement cost, repair cost or reconstituted value.
4.2 Delivery times are not guaranteed. GDP USA LLC’s liability for delay in the Carriage of a Shipment for any reason is determined and limited in accordance with Compulsory Legislation. Absent Compulsory Legislation, GDP USA LLC has no liability for any loss or damage caused by a delay in performance of the Carriage for any reason.
4.3 Unless mandated by applicable Compulsory Legislation, GDP USA LLC has no liability for any:
A) direct or indirect loss of profit, sales, business, goodwill or reputation, third party claim or indirect or consequential loss;
B) loss or damage caused directly or indirectly by Shipper or any third party (including any engaged by GDP USA LLC as agent for the Shipping Parties), including due to improper packing by Shipper; or
C) loss or damage caused by Dangerous Goods.
4.4 Shipper may increase GDP USA LLC’s liability pursuant to clause 4.1 for loss of, or damage to, a Shipment arising by GDP USA LLC’s negligence or willful misconduct by both (a) entering on the Waybill a Declared Value for Carriage, in an amount not exceeding US$100,000, and (b) paying to GDP USA LLC a surcharge as quoted by GDP USA LLC therefor; provided in no event will GDP USA LLC’s liability exceed the lowest of the Shipment’s replacement cost, repair cost or reconstituted value.
4.5 GDP USA LLC’s maximum aggregate liability for all events occurring in relation to a Waybill, other than for loss or damage per clauses 4.1 and 4.4, is limited to Charges for the Shipment.
4.6 Receipt by the person entitled to delivery of the Shipment without complaint is prima facie evidence of delivery in good condition and per the Waybill. Notice of loss of, or damage to, a Shipment, indicating the nature of the loss or damage, must be provided in writing to GDP USA LLC upon delivery unless the loss or damage is not apparent, in which case notice must be provided (a) within the time limit set by Compulsory Legislation, or (b) absent Compulsory Legislation, within 60 days after the date the Shipment is tendered for Carriage. Absent Compulsory Legislation, Claims not made within the time limits provided in the prior sentence are waived in all respects.
4.7 The time limit for commencing legal proceedings against GDP USA LLC is set by Compulsory Legislation. Absent Compulsory Legislation, GDP USA LLC is discharged of all liability in respect of the Carriage unless legal proceedings are duly commenced and written notice thereof given to GDP USA LLC within nine months from the date the Shipment was tendered for Carriage, unless the proceedings relate to a claim for Charges, in which case such nine-month period is shortened to three months.
4.8 Except as set forth in clause 4, GDP USA LLC will have no liability arising out of or in connection with the Carriage. The defenses, limits and exclusions of liability provided for in these Conditions apply in any action against GDP USA LLC arising out of, or in connection with, the Carriage, regardless of the nature of the action whether based in contract, tort, bailment, willful misconduct, or other legal theory. In no event shall the liability provisions in clause 4 be amended, expanded or modified by any service level or quality agreement, purchase order or other writing describing the shipping protocol for Shipments.
4.9 Nothing in these Conditions limits GDP USA LLC’s liability for death or personal injury caused by its negligence or willful misconduct.
5. Indemnification & Insurance
5.1 Shipper indemnifies each member of the Courier Organization for and against any and all Indemnifiable Losses in any way arising from:
A). a breach of the representations, warranties or covenants herein;
B). Such member’s acts or omissions based on instructions or directions given by any Shipping Party;
C). Liability or claims made by any third parties (including claims by Shipper’s customer and other third parties acting as Shipper’s subrogee or assign) in excess of GDP USA LLC’s liability hereunder regardless of whether such liability arises from, or in connection with a breach of contract, negligence, willful misconduct or breach of duty by GDP USA LLC or a member of the Courier Organization; and
D). Any claim made by a Shipping Party against any such member other than GDP USA LLC.
5.2 GDP USA LLC does not provide insurance of any kind for Shipments. Shipper is solely responsible for insuring the Shipment against all insurable risks to the Shipment’s full insurable value (including all duties and taxes) and such insurance must include a waiver of subrogation provision in favor of each member of the
6. Force Majeure
Neither party is liable to the other for any loss, delay or non-performance of its obligations under these Conditions (other than breach of an obligation to make payment of any sum due under these Conditions) to the extent due to a Force Majeure Event. Shipper will reimburse GDP USA LLC for any increase in costs arising from a Force Majeure Event.
7.1 A waiver or delay in enforcing these Conditions will not deprive a party of its right to act later or due to another breach. These Conditions: are governed by the laws of Singapore; constitute the entire agreement between GDP USA LLC and Shipper and supersede prior agreements regarding Carriage of the Shipment; and cannot be amended unless each party agrees in writing. If there is a conflict between these Conditions and a Waybill, these Conditions will prevail. The members of the Courier Organization will have the benefit of all defenses, exemptions, immunities, limitations and rights of GDP USA LLC and have the right to enforce them in accordance with the provision of the Contracts (Rights of Third Parties) Act 1999. Except as expressly provided herein, a person who is not a party to the Conditions may not enforce, or otherwise have the benefit of, any provision of these Conditions under the Contracts (Rights of Third Parties) Act 1999. If any provision in these Conditions is determined by a court of competent jurisdiction to be unenforceable, these Conditions will be deemed amended to the minimum extent necessary to render the otherwise unenforceable provision, and the remainder of these Conditions, enforceable.
7.2 Unless otherwise required by Compulsory Legislation, any claims against GDP USA LLC under these Conditions or otherwise arising from the Carriage will be determined exclusively by the courts of Singapore to which jurisdiction the Shipper irrevocably submits. GDP USA LLC is entitled to bring legal proceedings against the Shipper in the courts of Singapore or in any other jurisdiction and legal proceedings by GDP USA LLC in one or more jurisdictions will not preclude legal proceedings by it in any other jurisdiction, whether concurrent or not. The prevailing party in any legal action may recover all costs, including reasonable attorneys’ fees and expenses.
7.3 Each of the Courier Organization and the Shipping Parties: (a) mutually waive and release the other from any and all liabilities relating to any claim for loss or damage of any kind arising out of an Act of Terrorism; and (b) agree to be solely responsible to the full extent of any and all loss or damage they or their respective employees, officers or agents may sustain resulting from an Act of Terrorism when any Qualified Anti-Terrorism Technology has been deployed on account thereof. Notwithstanding the foregoing, this clause will not be deemed to limit the scope or extent of the Shipping Parties’ obligations to the members of the Courier Organization under clause 5.1.
7.4 In these Conditions: (a) a reference to a party or a clause is to a party subject to, or a clause of, these Conditions; (b) a reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (c) any reference to the term “Shipper” is deemed a reference to the “Shipping Parties”; and (d) the term “including” means “including, without limitation”.
“Act of Terrorism” has the meaning ascribed to that term under the SAFETY Act.
“Applicable Law” means any and all laws, regulations and rules applicable to the exportation, importation, transportation, storage and handling of the Shipment and to any obligation or activity related to these Conditions.
“Carriage” means all services performed by or on behalf of GDP USA LLC in relation to a Shipment, including packing after tender, transporting, importing, exporting, customs clearance, unpacking in connection with delivery, in-transit storage and related documentation and handling.
“Charges” means all fees and charges payable to GDP USA LLC in accordance with the Conditions.
“Compulsory Legislation” means any of the following when it applies compulsorily to any stage of the Carriage, to the extent it cannot be waived or modified:
A. The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929, as amended;
B. The Guadalajara Supplementary Convention (1961);
C. The Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal, 28 May 1999;
D. The Convention on the Contract for the International Carriage of Goods by Road (CMR) (Geneva, 19 May 1956); or
E. Any other international convention or national law.
“Conditions” means these Conditions of Carriage and the Waybill.
“Courier Organization” means GDP USA LLC and its subsidiaries and affiliates and their respective directors, officers, employees, agents and subcontractors, excluding any third party engaged by GDP USA LLC solely as agent for any Shipping Party.
“Dangerous Goods” means any item which is or may become dangerous, hazardous, noxious (including radioactive materials), inflammable, explosive or that otherwise presents a risk of damage or injury of any type to property or person.
“Declared Value for Carriage” means the Declared Value for Carriage, if any, indicated on the Waybill.
“Force Majeure Event” means hazards or dangers incident to a state of war or belligerency; any act or restraint of any government or public authority acting with actual or apparent authority; strikes, riots, or civil unrest (whether or not involving GDP USA LLC’s employees); fires, water damages, floods, tremors, earthquakes, mudslides, snowstorms, tornadoes, hurricanes, monsoons, eruptions and other natural disasters and extreme weather conditions; and/or acts of God and/or any other circumstances outside the party’s control.
“Indemnifiable Losses” means any and all costs, losses, expenses, demands, claims, actions, causes of action, judgments, assessments, damages, amounts paid in settlement of actions or claims, obligations, recoveries, deficiencies, liabilities, fines, penalties, costs and fees, including court costs and reasonable attorneys’ fees and expenses.
“Licenses” means all import and export licenses and other authorizations relating to the Shipment necessary for the Carriage, including any required by Applicable Law or any Relevant Authority.
“Prohibited Person” means any individual or entity with whom transactions are restricted or prohibited under any sanction, prohibition or restriction imposed by any state, country, supranational or international governmental organization or any Relevant Authority.
“Qualified Anti-Terrorism Technology” has the meaning ascribed to that term under the SAFETY Act and expressly includes certified cargo screening facilities and any associated services offered by any member of the Courier Organization.
“Relevant Authority” means any customs authority, customs inspection station, airport authority, national civil aviation authority (including the International Air Transport Association and International Civil Aviation Organization) and any other authority having jurisdiction over any element of the Carriage or the Shipment.
“Relevant Authority Levy” means value added tax and any other tax, duty, levy, charge, deposit or outlay imposed by a Relevant Authority and/or any expenses incurred in complying with the requirement of any Relevant Authority with respect to a Shipment.
“Restricted Item” means any cargo or item that is subject to any import or export sanction, prohibition or restriction imposed by any state, country, supranational or international governmental organization or any Relevant Authority.
“SAFETY Act” means the Support Anti-Terrorism by Fostering Technologies Act of 2002, 6 USC §441 et seq., of the United States of America, and the regulations promulgated thereunder.
“Shipment” means all items (including packing or packaging materials) tendered to, and accepted by, GDP USA LLC for Carriage under one Waybill.
“Shipper” means the person named as shipper on the Waybill.
“Shipping Parties” means the Shipper, consignee, receiver, owner of the Shipment and anyone else with an interest in the Shipment.
“Special Drawing Rights” means the Special Drawing Rights defined by the International Monetary Fund.
“Waybill” means the duly authorized waybill accompanying a Shipment or any shipping document, label, receipt, electronic entry, order form or any other means issued or provided by GDP USA LLC that preserves a record of the Carriage to be performed with respect to the Shipment.
“GDP USA LLC” means the GDP USA LLC company appearing on the Waybill.
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