VERY IMPORTANT NOTICE: We do our utmost to protect the very valuable goods we transport. We do not automatically insure Customers’ goods and in those cases, we only accept very limited liability to our Customers, even if loss is caused by our negligence. We can arrange individual Transit Liability Insurance for our Customers for damage to Goods in transit, caused by our direct actions or negligence.
STANDARD TERMS AND CONDITIONS OF TOKONEY LTD
Standard Terms and Conditions governing the operations carried out and/or undertook through the websites www.app.tokoney.com, www.tokoney.com (http://www.tokoney.com), www.tokoney.co.uk (http://www.tokoney.co.uk), www.tokoneyart.com (http://www.tokoneyart.com) (hosted by Squarespace), any other associated Tokoney website or TOKONEY Ltd, Registered Company No. 12245258 and having its registered office 85 Great Portland Street, London, W1W 7LT (UK). Hereafter designated “TOKONEY”.
1 – PURPOSE
The purpose of these Standard Terms and Conditions is to define our terms of business and the legal framework of the services offered by TOKONEY via its websites or by any other means. Only these Standard Terms and Conditions shall govern these relationships, to the exclusion of all other Standard conditions or contractual documents of the Customer or of any third party. The following Conditions shall, unless otherwise agreed with TOKONEY, apply to all contracts, whether written or oral, entered into by TOKONEY with any Customer. In the event that any Term or Condition is unenforceable, the remaining Terms and Conditions shall remain in force.
TOKONEY does not contract as a Common Carrier.
2 – DEFINITIONS
For the purposes of these Standard Terms and Conditions, the following terms are defined as follows:
“Consignee” means any company or other entity to whom we agree with you to deliver the Goods as part of the Services.
“Contract” means the Contract which TOKONEY and the Customer enter into for the provision of the Transport Services agreed in the Transport Order.
“Customer”: the party who sends one or more Transport Order(s) to TOKONEY via the Website or by any other means so that TOKONEY organizes a transport of Goods. The customer contracts with TOKONEY as the legal owner of the Goods or as the authorised agent of the legal owner of the Goods, in which event the Customer warrants that it has the full authority to accept these Conditions (including the lien clause) on behalf of the owners and full power to act, and to give instructions to TOKONEY, in relation to the Goods.
“Deliver”: the physical delivery of the Goods to the consignee or his representative who legally accepts it.
“Goods”: an object or a material set composed of several objects, whatever its weight, dimensions and volume, constituting a unitary charge when handed over by the Customer to the Substitute(s) or agents of TOKONEY.
“Order Confirmation”: acceptance by TOKONEY of the Transport Order sent by the Customer. The Order Confirmation is sent by email to the Customer. It evidences the conclusion of a contract in the `Transport Order’ between TOKONEY and the Customer.
“Price of the Service” or “Price”: the price paid by the Customer to TOKONEY in respect of the `Transport Order Services’. The Price is earned once paid.
“Shipment”: all Goods, packaging(s) and support(s) included, handed over to the Substitute(s) or Agent of TOKONEY by the Customer or their representatives as part of the performance of the `Transport Order’ Services.
“Special Transports”: any transport of goods subject to special regulations, including the
transport of dangerous goods, perishable goods and/or temperature-controlled goods, vehicles, etc.
“Standard Terms and Conditions”: the present Terms and Conditions which, alone and to the exclusion of all others, govern the relationship between TOKONEY and the Customer and the consignee/any cargo interests.
Substitute or Agent “: any transport professional to whom TOKONEY entrusts the execution of the transport, a part of the transport or an ancillary service in execution of the Order Confirmation.
“TOKONEY Crating System”: the Proprietary re-usable crating technology developed by TOKONEY for the transport of Goods. System includes any packaging system included within TOKONEY’s crate.
“Transit Liability Insurance” refers to the transit coverage we agree to provide at your request, for claims arising from our own actions or negligence, whilst the Goods are in transit. This will be up to the value of the Goods declared The Transit Liability Insurance Policy, “the Policy”.
“Transit Liability Insurance Fee”: the amount payable by the Customer to Tokoney for providing the Transit Liability Insurance which is shown in the Order Confirmation and Transport Order
“Transport Order”: request for Transport Service(s) sent by the Customer(s) to TOKONEY.
“‘Transport Order’ Services”: any transport organization or ancillary services provided by TOKONEY in execution of the Transport Order and Order Confirmation
“Use or User”: Customer(s) registered on the Website or that by any other means, contracted with TOKONEY and having accepted the present Standard Terms and Conditions in their application to the exclusion of all other general or particular terms and conditions or contractual provisions that TOKONEY did not expressly accept.
“User Account”: the account that must be created on the Website and validated by TOKONEY in order to become a User of the Site and the services it offers, which implies full acceptance of the Standard Terms and Conditions.
“Websites”: TOKONEY related websites, www.tokoney.com (http://www.tokoney.com), www.tokoney.co.uk (http://www.tokoney.co.uk), www.tokoneyart.com (http://www.tokoneyart.com) (hosted by Squarespace), and more generally any web and/or mobile application published by TOKONEY and linked to the Website.
3 – OPERATING CONDITIONS OF THE SITE
3.1. Acceptance of the Terms of Use
The acceptance of these Standard Terms and Conditions is shown either (i) by a check box when registering on the site or during the process of concluding the Transport Order or (ii) by the acceptance of TOKONEY’s written or oral quotation. This acceptance is full and complete. No special conditions and/or other terms and conditions emanating from the Customer can prevail over the present Standard Terms and Conditions for the ‘Transport Order’ Services and their consequences.
TOKONEY reserves the right to modify the Website and/or to modify the present Standard Terms and Conditions, by informing the Users at least seven (7) calendar days before the entry into force of the new version.
3.2. Use of the Account and mandatory data updates
Each User expressly forbids themselves from creating or using a User Account other than the one initially created, whether under their own identity or under that of a third party, and is strictly forbidden to assign their User Account to anyone.
Where the Customer provides any inaccurate information on its User Account, or behaves in any way which is contrary to these Standard Terms and Conditions, TOKONEY will note this and may at its sole discretion close the User’s Account temporarily or permanently without notice and without any liability to the Customer. Whether or not any conduct is contrary to the Standard Terms and Conditions will be decided by TOKONEY unilaterally and at its sole discretion.
Each User agrees to keep confidential and not to communicate to anyone (including another User) their username and password to access the Website. The User Account is strictly personal.
The User is solely responsible for his User Account and the use that is made of it. It is the User’s responsibility to inform TOKONEY immediately if there are suspicions or indications that their User Account may have been hacked and/or used by a third party.
Each User may access the Website using his password and his username, as well as his User Account containing all the personal data provided during his registration on the Website. Each User undertakes to provide accurate, complete and unambiguous data and ensures the updating of said data.
3.3. Suspension, Cancellation and Termination of the User Account by TOKONEY
Any User Account for which inaccurate information and/or behaviour contrary to these Standard Terms and Conditions would be noted, may be closed, temporarily or permanently, by TOKONEY without notice and without liability of the latter.
The Users guarantee TOKONEY of any damage, loss, prejudice or condemnation, suffered by TOKONEY or a third party, due to an improper use of the Website in violation of these Standard Terms and Conditions.
3.4. Transport Order of the Customer and Order Confirmation
The Customer sends a Transport Order to TOKONEY via the Website by filling in the mandatory fields provided for this purpose or in writing (which includes emails) or oral communication with TOKONEY. TOKONEY registers the Transport Orders and determines the Price for quotation. Any quotation from TOKONEY will automatically lapse by the expiry date on the quotation or within thirty calendar days if it is not accepted. TOKONEY will only be bound once The Customer accepts the Contract either i) in writing; or ii) by making payment on the website.
TOKONEY reserves the right to perform the Contract in instalments, each one of which shall be deemed to be the subject of a separate contract. Any failure by TOKONEY in relation to any one instalment shall not entitle the Customer to repudiate the Contract as a whole or any other instalments relating to it.
The waiver by either party of a breach or default of any Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other Conditions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder, operate as a waiver of any breach or default by the other party.
4 – PRICE AND PAYMENT
4.1.1 During the Transport Order process, either through the website or by written communication, the Customer will be informed by TOKONEY of the amount of the Price and the services included in the Price and if applicable (Transit Liability Insurance, packaging, etc.). Should anything appear unclear or not precise enough, the Customer or the User should ask for clarification from TOKONEY, prior to any Transport Order being issued.
4.1.2. The Price of the Transport Order’ Services is shown exclusive of taxes. Any VAT that may be due is added to the Price by TOKONEY, according to the rate applicable on the day of invoicing.
4.1.3 The Price of the `Transport Order’ Services is calculated on the basis of the information provided by the Customer, taking into account the transport operation to be carried out, and in particular the nature, the weight, volume and value of the goods to be transported and the routes to be followed. Any modification of the parameters may lead to an increase in the price initially quoted. The Customer and/or User accepts that.
4.1.4 Unless otherwise indicated by TOKONEY when confirming the Transport Order, the Price does not include any duties, fees and taxes due under any regulations or national legislation, including tax or customs (such as excise duties, import duties, etc.), TOKONEY is not responsible or liable for the payment of any of these fees and the Customer remains responsible ,if non-payment or delayed payment causes delay or mis-delivery of the Goods.
4.2.1 When placing the Transport Order, the invoice mentioning the Price is published by TOKONEY and sent to the Customer. The payment of the Price is made by the Customer through a credit card, PayPal service or a bank transfer to the account of TOKONEY. It is only upon receipt of that payment that TOKONEY is due to initiate the necessary steps to organize the transport entrusted to TOKONEY.
4.2.2 Unless otherwise stated, all payments to TOKONEY must be made in full in Sterling within thirty calendar days of the date of TOKONEY’s invoice. Value Added Tax (where applicable) shall be added at the rate prevailing at the date of the invoice.
4.2.3 Any delay in the payment on or before the due date, the payment of interest of an amount equivalent to 4% above the prevailing Bank of England base rate as well as a lump sum indemnity for recovery costs in the amount of £40 (40 pounds sterling).TOKONEY reserves the right to claim any additional compensation, interest and legal costs, if it is required to take legal action to recover a payment.
4.2.3 In the event that several invoices remain unpaid, the payment of a part of the sums due will be attributed firstly to oldest invoices.
4.3. Fees for changes to the Transport Order
4.3.1. Modification after Order Confirmation
Any modification of the Transport Order, either on the initiative of the Customer, or because of circumstances outside of TOKONEY’s control, which leads to a readjustment of the Price initially agreed.
The Customer must request the modification of his Transport Order by contacting TOKONEY and, if necessary, pay the price supplement that is due as per article 4.2 in these Terms and Conditions.
4.3.2. Amendments justified by the interest of the Goods
When the changes made by TOKONEY are justified in the interest of the Goods, the Customer must reimburse the costs incurred by TOKONEY upon presentation of the relevant supporting document(s).
4.3.3. Changes by the recipient
If, during the carriage of goods, the recipient wishes to add paying options, TOKONEY will be entitled to invoice the recipient directly and the Customer will be jointly and severally guarantor of the payment.
4.4. Additional charges
The Customer must provide a detailed accurate written description and accurate estimate of the Goods at the time of asking TOKONEY for a Transport Order. TOKONEY may require additional information after the quotation is given or accepted, to enable accurate declarations to be made to Customs and other third parties TOKONEY reserves the right to recover from the Customer any increases in third party costs, including but not limited to storage, transportation, freight and Transit Liability Insurance, which TOKONEY is obliged to pay in carrying out the terms of the Contract and any additional cost(s) arising from changes in rates of exchange (where appropriate) between the date of the quotation and the date of payment of such charges.
The Customer shall indemnify TOKONEY against all taxes, duties and other sums incurred by the Company in performing its duties under the Contract, and shall reimburse TOKONEY on demand, in respect of any payments incurred by it. The Customer shall further indemnify TOKONEY from and against any losses, damages, claims, expenses, fines and any other liability whatsoever and howsoever arising as a result of any inaccurate description of the Goods.
4.5. Costs in case of cancellation
The cancellation by the Customer of his Transport Order not yet transmitted/communicated to the Substitute(s) of TOKONEY is done without charge for the Customer and without penalty unless where TOKONEY itself bears costs and/or penalties. In such a case, these costs/penalties would be passed on the Customer.
In the event that this cancellation would cause prejudice to TOKONEY, TOKONEY would be entitled to full indemnification of its losses by the Customer.
5 – INSURANCE OF GOODS
The Customer shall insure the Goods during their transportation and whilst in storage. TOKONEY shall be under no liability to the Customer for loss or damage to the Goods during transportation or whilst in storage, howsoever such loss or damage arises.
Where the Customer requests TOKONEY to provide Transit Liability Insurance, for the Goods up to the value declared by the Customer, any Transit Liability Insurance will only cover physical loss and material damage to the Goods which are directly attributable to TOKONEY’S actions or negligence. This is the exclusion of any limitations in the insurance which will be noted on the quote provided for the Transit Liability Insurance to the Customer. The Customer guarantees that any person interested in the Goods carried agrees not to seek compensation above any ceiling of compensation outlined on the original quote.
Any Transit Liability Insurance is effective only on collection of the item(s)/Goods by TOKONEY.
Any Transit Liability will only cover material loss and damage to the Goods, caused by TOKONEYS’ actions or negligence, to the exclusion of all other damages, including immaterial or indirect damage. Any additional insurance beyond the Transit Liability Insurance whilst the Goods are in the possession of TOKONEY or its substitute or agents, must be arranged by the Customer.
TOKONEY will not be held responsible for insufficient or an inadequate description of the Goods or declaration of the value of the Goods by the Customer. It is the Customer’s responsibility to arrange additional insurances if need be, for any errors and omissions by the Customer.
The payment of the any insurance by the Transit Liability Insurers is conditional on the Customers or beneficiaries who make a claim, meeting the requirements of that Policy and proving they are entitled to make a claim. The Customer or other party making a claim may be required to sign certain documents by the Insurers providing the Transit Liability Insurance including but not limited to a Receipt & Release.
TOKONEY is not an insurance broker, insurance agent or insurance intermediary. The Customer agrees to provide TOKONEY with any notifications, notice, paperwork or details of the appointment of surveyors in a timely fashion, which should be within 14 calendar days or receiving the Goods or, the date they should have been received if lost, which is necessary for the declaration of an incident under the Transit Liability Insurance Policy. TOKONEY will take the necessary reasonable steps to pass any notification, notice or paperwork to their insurers, however, it is the responsibility of the Customer to file a claim under the Transit Liability Insurance Policy.
Any compensation by the Transit Liability Insurers to the Customer or to the cargo interests will be in full and final settlement of any claim under the Transit Liability Insurance. No other compensation can be sought from TOKONEY and/or its substitutes or agents. Acceptance of a claim for compensation for the Transit Liability Insurers will result in an automatic waiver of any claim against TOKONEY and/or its Substitutes or Agents.
6 – OBLIGATIONS OF THE CUSTOMER
In the absence of the specific written instructions of the Customer as to the storage, transportation or handling of the Goods, or where such instructions cannot be reasonably implemented, TOKONEY reserves the right at the Customer’s risk to take such action or alternative action as it considers reasonable to protect the Goods.
6.1. Packaging and labelling
The Customer is liable for the successful completion of the packaging and labelling of the Goods, except in the event that these services have been entrusted to TOKONEY and the Price related to these services has been fully paid.
Where TOKONEY’s quotation is based upon using the TOKONEY Crating System, TOKONEY reserves the right to use appropriate alternative packaging where, for any reason, it is not possible to use the TOKONEY packaging system.
6.2. Reporting requirements and transport instructions
The Customer must give necessary and precise instructions in the Transport Order so that the Substitutes or Agents of TOKONEY can perform the transport and the accessory services ordered.
As such, the Customer must provide all information and necessary documents for the proper performance of the transport operation, and in case of request by TOKONEY, complete them as soon as possible. If needed, notably as regards custom operations, the Customer mandates TOKONEY to issue, on its behalf, a proforma invoice mentioning information given by the Customer and, if necessary, to add information. Such a document will be sent to the Customer for its approval. If the Customer fails to answer within 24 hours of the sending of this pro-forma invoice, the Customer will be deemed as having confirmed that the information on the pro-forma invoice is correct.
In addition to the information and documents required by TOKONEY for the Transport Order, the Customer must provide any additional instruction regarding the transport, especially in the case of Special Transports, so that TOKONEY and its Substitutes or Agents can correctly organize the transport.
The Customer is prohibited from ordering a transport relating to illegal, sanctioned, stolen, prohibited or embargoed goods, local and international regulations hereinafter described as “Forbidden Cargoes.” TOKONEY are forbidden from issuing Transport Orders regarding cargo or carriage that is prohibited or embargoed by UN, EU, the USA, France, and Great Britain. This includes but is not limited to forbidden cargo and carriage that is being carried to or from or transited via embargoed countries.
All specific instructions related to the Delivery must be the subject of a written and repeated order for each shipment and they must be forwarded beforehand to TOKONEY via the Website, for its express prior acceptance. In any event, such a mandate constitutes the accessory of the main service provided by TOKONEY and its Substitutes.
6.3. Failure of the Customer, impediment to transport
The Customer shall notify TOKONEY, with at least a three (3) working days’ notice, in case the goods cannot be handed over to TOKONEY within the prescribed time. In the event that this notice is not complied with by the Customer, the `Transport Order’ Service will be cancelled, and the Customer will be charged 100% of the expenses incurred by TOKONEY.
If, after the Goods have been handed over to TOKONEY’s Substitute(s), the transport is impeded or interrupted temporarily or if the performance of the transport becomes impossible, TOKONEY may seek instructions from the Customer, who will have to reply as quickly as possible. TOKONEY will inform the Customer of all the foreseeable consequences of his instructions. TOKONEY will be entitled to a refund of the unexpected expenses upon presentation of the relevant supporting documents.
Should the Customer fail to provide instructions to TOKONEY in due time, TOKONEY will take the measures as it considers best for the interests of the Customer in order to preserve the goods or carry them at its destination. The expenses arising therefrom will be passed on to the Customer upon presentation of the relevant supporting documents.
When the impediment is attributable to the Customer, TOKONEY is also entitled to a refund of the unexpected expenses upon presentation of the relevant supporting documents.
6.4. Transfer of Title
If during the course of any Contract title to the Goods is transferred, the Customer will procure that the transferee will accept the Goods subject to the Contract as if it were the Customer provided that (a) this shall not affect the Customer’s continuing liability under the Contract; (b) the Customer will indemnify TOKONEY against any claim by the new owner of the Goods for actions properly taken by TOKONEY in fulfilling the terms of the Contract.
7 – OBLIGATIONS OF TOKONEY
TOKONEY can annul or refuse any Transport Order based on a late payment or on a lack of payment of an invoice to be paid by the Customer.
TOKONEY is in charge of organizing the transport of the Goods according to the instructions of the Customer, by determining the means of transport and by choosing the Substitute(s) who will carry out the transport.
7.1. Obligations of TOKONEY towards the Customer
TOKONEY and its Substitute(s) or Agents verify (i) the apparent regularity of the documents provided by the Customer when placing the Transport Order and (ii) that no essential document is missing.
When it appears that the information provided by the Customer is incomplete, TOKONEY requests additional information from the Customer in order to organize the transport in the most suitable manner.
TOKONEY informs the Customer of the progress of the transport operation, reporting to them any difficulty that may arise during the performance of the `Transport Order’ Service.
In case of incident occurring during the performance of the transport, TOKONEY is duly diligent to preserve the rights and remedies of the Customer, and endeavours to find a solution as soon as possible to carry out the transport.
It is not part of TOKONEY’s obligation to supervise the loading of the Goods. Unless otherwise instructed by the Customer when placing the Transport Order, TOKONEY also supports no obligation regarding the packaging and labelling of the goods.
Where TOKONEY undertakes to set-up and/or install Goods it merely means to set-up/install the Goods on/in the indicated spot. It excludes any construction and/or handy work (such as drilling, knocking in a nail, setting-up a picture rail or table etc…)
Except in case of personal fault on his part, TOKONEY is not responsible for intermediary agents and/or Substitutes that have been imposed on them by the Customer or the public authorities.
Save where TOKONEY has otherwise specifically agreed in as part of the Transport Order, TOKONEY will not arrange or be responsible for the storage of Goods except as may be necessary in the course of performing its duties under this Contract and then only at the Customers’ cost and risk.
7.2. Times of transport
The departure and arrival dates communicated by TOKONEY are purely indicative. TOKONEY tries to meet these estimated times, according to the nature and hazards of each mode of transport.
When a meeting or deadline is set-up for the delivery and expressly agreed in writing by TOKONEY, TOKONEY makes its best effort to meet it. TOKONEY will not be liable for any delay for reasons out of its control, as for instance unusual customs delays or unexpected customs checks.
8 – NOTICES OF DAMAGE
Notices of damage on Delivery must be made in accordance with these Terms and Conditions or any the applicable national or international regulations or any requirements of the Transit Liability Insurance, as soon as reasonably practical or within 48 hours from the time of delivery. The Notice must be dated, express, written, detailed, precise and relate to the goods mentioned on the Transport Order. Any notices must be sent by the consignee to TOKONEY with the words “urgent” in the subject of the e-mail to [email protected].
The Customer, if they are not the consignee of the Goods, guarantees that the consignee will issue a notice of damage in accordance with these Terms & Conditions and will inform TOKONEY, at the same time and in the same way (express, written, detailed and precise reservations relating to the goods).
Any claim by the Customer against TOKONEY arising in respect of any service provided for the Customer, or which TOKONEY has undertaken to provide, shall be made in writing and notified to TOKONEY within 48 hours of the time upon which the Customer became, or ought reasonably to have become aware of any event or occurrence alleged to give rise to such a claim, and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where the Customer can show that it was impossible to comply with this time limit, and that the Customer has made claim as soon as it was reasonably possible for him to do so.
Notwithstanding the provisions above, TOKONEY shall in any event be discharged of any liability whatsoever and howsoever arising in respect of any service provided for the Customer, or which TOKONEY has undertaken to provide, unless suit be brought and written notice thereof given to TOKONEY within nine months from the date of the event or occurrence alleged to give rise to a cause of action against TOKONEY.
9 – LIABILITY
9.1. Liability of the Customer
The Customer is liable for all consequences of the absence, inadequacy or defectiveness of the packaging, packing, marking or labelling of the goods, unless TOKONEY had agreed to perform these operations at the time of the Transport Order and that the corresponding Price was paid by the Customer.
The Customer is responsible for all the consequences of a breach of the obligation to give information regarding the carriage and to declare the very exact nature and specificity of the goods, especially when the latter requires special measures, particularly with regard to its value and/or the greed it is likely to arouse, its dangerousness or its fragility.
The Customer is responsible for all the consequences of delivering to TOKONEY’s Substitute(s) illegal, prohibited or embargoed goods. It guarantees them, as well as TOKONEY, from any claim resulting from the non-respect of this prohibition.
The Customer alone bears, without any recourse against TOKONEY, the consequences, whatever they may be, resulting from statements or documents that are erroneous, incomplete, inapplicable (for example, if the nature of the Goods declared by the Customer to TOKONEY does not correspond to the goods actually transported), or provided lately, including the information necessary for the transmission of any summary declaration required by the relevant customs regulations.
In case of impediment to delivery, refusal of the Goods by the consignee, as in case of failure of the consignee for whatever reason, the Price will remain due in full by the Customer. The latter will also have to pay storage costs, costs for returning the goods, for destroying it, for sale rescue and generally for all costs linked with the Shipment.
In case of immobilization of the means of transport on delivery or removal of goods, the Customer will be invoiced according to the rules applicable to the relevant mode of transport.
All goods delivered to TOKONEY and its Substitutes or Agents must clearly display the address for delivery. In the event that TOKONEY is unable to deliver the goods, for any reason beyond its reasonable control, to the address specified, or if the address is incorrect, TOKONEY shall seek further instructions from the Customer. The Customer shall be liable for all costs and charges for storing the Goods pending further instruction and for carrying out those instructions.
TOKONEY shall have the right to retain all Goods (and documents relating to the Goods) under a particular and general lien and to have a right of detention for all charges incurred pursuant to the terms of the Contract relating to the Goods and in respect of any other monies owing by the Customer to TOKONEY. If the Customer fails to pay any monies due to TOKONEY within 30 days of the Company’s’ demand for payment then the Company shall be entitled to sell the Goods.
TOKONEY reserves its right to claim any loss and damage caused to the TOKONEY Crating System caused by the Customer or Substitutes.
9.2. Liability of TOKONEY
TOKONEY shall not be liable: a) for any loss or damage which is occasioned by a risk which is not insured by the Customer or b) any loss in excess of the declared value of the Goods or, c) any loss arising from any Transit Liability Insurance policy being avoided because of an inaccurate description of the Goods.
TOKONEY will not undertake to transport or store perishable, dangerous, noxious or inflammable goods (“Noxious Goods”). If Noxious Goods are presented to TOKONEY, the Customer shall indemnify and keep indemnified TOKONEY and its Substitutes and Agents against any loss or damage whatsoever and howsoever arising from their handling or disposal of the noxious goods and any liability arising, penalty, costs or charges relating thereto. TOKONEY shall at its sole discretion have the power to destroy or dispose of such Noxious Goods as agent of the Customer.
Provided that the company has used all reasonable efforts to minimise the loss, damage or delay, TOKONEY shall not be liable for any loss, damage or delay in relation to the Goods which arises from any cause beyond TOKONEY’s reasonable control:
Nothing in any Contract shall limit TOKONEY’s liability in respect of any claims:
TOKONEY shall not be liable for loss of, or damage to, the Goods, or delay or mis-delivery, in any circumstances unless it can be proved that the same was caused by the wilful neglect or default, or a criminal act, of TOKONEY or its Substitutes.
In no event shall TOKONEY be liable to a Customer under contract, tort including negligence, breach of statutory duty or otherwise for any indirect or consequential damages, even if the loss was reasonably foreseeable or the Customer has been advised of the possibility of such damages, including:
9.2.1. Liability for the Substitutes’ acts/omissions
Any Agent or Substitute shall have the benefit of these conditions and shall be under no greater or additional liability to the Customer than TOKONEY.
9.2.2. Personal liability of TOKONEY
Unless otherwise agreed in writing between TOKONEY and the Customer the liability of TOKONEY shall be limited to:
9.2.3. TOKONEY’s exclusion of liability
TOKONEY and its Substitutes are not liable for damages / wear & tear prior to them taking the goods in their custody.
TOKONEY is not liable when the Goods do not correspond to the description provided by the Customer (whether in case of damage or in case of customs control) and/or when the Customer and/or the consignee have not allowed a surveyor mandated by TOKONEY and/or the Insurer to intervene after the goods have been declared damaged and/or lost.
9.2.4. Return costs of the Goods
The eventual return costs of the Goods are always supported by the Customer, even in case of damage, except when they are covered by Transit Liability Insurance. The Price is earned by TOKONEY, even where the Goods are lost or damaged.
9.3. TOKONEY’s liability regarding the functioning of the Website
Various factors out of TOKONEY’s control can affect exchanges between TOKONEY and the Customer and the way the Website works. TOKONEY is not liable for that. In the same trend, TOKONEY can stop its services in order to maintain its Website or be affected by technical difficulties regarding its Website without bearing any liability in this respect. In such cases, if the Customer needs to urgently be provided with a quotation of TOKONEY, it undertakes to send as soon as possible an e-mail mentioning “urgent” in its subject and to call by phone TOKONEY and to then mention that it urgently needs the requested quotation.
For all damages resulting from a malfunction of the Website due to TOKONEY’s negligence, the compensation due by TOKONEY, in the case that its personal liability is engaged and proven, is strictly limited to the Price of the `Transport Order’ in respect of which the damage has originated or the Price that would have been invoiced by TOKONEY.
In all cases, the liability of TOKONEY cannot exceed £500.
10 – USER’S COMMITMENTS REGARDING THE CONTENTS OF INFORMATION DISPLAYED ON THE WEBSITE AND RELATING TO THE USE OF THE TOKONEY WEBSITE
Users are solely responsible for the content they share in connection with the use of the Website, and undertake to ensure that all such information provided is lawful and does not infringe public order or morality, nor the rights of third parties, do not violate any legal or regulatory provisions, and more generally, is in no way likely to engage the civil or criminal liability of TOKONEY.
The User will refrain from sharing, notably and without the following list being exhaustive:
11 – DATA COLLECTION
TOKONEY collects a certain amount of personal data about you on the Website and in the course of exchanges. Personal data is collected for the purposes of following up your requests for quotes or subscriptions, as well as for statistical and advertising purposes.
This personal information will be used and kept in accordance with the provisions of European Regulation 2016/679 of the Parliament and European Council (called “GDPR”), Users and Customers have a right to access, request, modify and delete information which concerns them, which them can exercise at any time with TOKONEY either by mail or by email at the following address: [email protected] (mailto:[email protected]).
For security reasons and to avoid any fraudulent requests, this request must be accompanied by a proof of identity. This proof of identity will be destroyed upon request.
The information collected may be communicated to third parties linked to TOKONEY by contract. If you do not wish your personal information to be communicated to third parties, you can send an email to the following address: [email protected] (mailto:[email protected]).
This information may be disclosed pursuant to a law, regulation or by a decision of a competent regulatory or judicial authority or, if necessary, by TOKONEY in order to preserve its rights and interests.
When certain information is mandatory in order to access specific features of the Website, TOKONEY will indicate this mandatory character at the data entry phase.
You are likely to receive commercial offers from TOKONEY or its partners. If you do not wish to
receive such commercial offers, you can send an email to the following
address: [email protected] (mailto:[email protected]).
If, during the consultation of the Website, you gain access to any personal data, you must refrain from any collection, any unauthorized use and any act that may constitute an invasion of privacy or reputation of individuals. The Publisher declines all liability in this regard.
The person responsible for the processing of user data collected via the Websites is TOKONEY Ltd, Registered Company No.12245258.
TOKONEY may transfer information about a Customer to its financiers, who:
TOKONEY will provide the Customer with details of third parties referred to above from whom they obtain, and to whom they may give, information about the Customer. The Customer may apply in writing to receive a copy of the information held about the Customer. However, a fee may apply.
12 – ITELLECTUAL PROPERTY
All trademarks, photographs, texts, comments, illustrations, animated or non-animated images, video sequences, sounds, as well as all the computer applications that could be used to make the Website work, and more generally all the elements reproduced or used on the Website are the full property of TOKONEY or its partners.
Any Intellectual Property Rights belong to TOKONEY and shall remain the exclusive property of TOKONEY, and the Customer and Substitutes shall not use any TOKONEY Intellectual Property Rights in the TOKONEY Crating System, including any proprietary software used to support it.
In all matters, any reproduction, representation, use or adaptation, in any form whatsoever, of all or part of these elements, including computer applications, without the prior written consent of TOKONEY, are strictly prohibited. The fact that TOKONEY does not initiate proceedings upon becoming aware of unauthorized uses does not imply acceptance of such uses and waiver of prosecution.
13 – CONVENTIONAL PLEDGE AND LIEN
Whatever the quality in which TOKONEY intervenes, the Customer expressly recognizes to TOKONEY a conventional pledge carrying the right of retention and general and permanent preference over all the goods, values and documents in the transport operator’s possession, serving as a guarantee of all receivables (invoices, interests, expenses incurred, etc.) that TOKONEY holds against the Customer even before or outside the operations carried out with regard to the goods, securities and documents that are actually in its possession.
TOKONEY has a lien on the value of the goods subject to its obligation and the documents relating thereto for all its `commission’ claims on its principals, even born from previous operations.
In TOKONEY’s privileged debt are included, with the principal amount, interests, commissions and incidental expenses. If the Customer fails to pay any monies due to TOKONEY within 30 days of TOKONEY’s demand for payment, then TOKONEY shall be entitled to invoke the power of sale set up in Condition 9.1.
14 – CANCELLATION – INVALIDITY
If any provision of these Standard Terms and Conditions is declared null or deemed unwritten, all other provisions will remain applicable.
15 – CLAIMS AND MEDIATION
In any case of disagreement, TOKONEY remains available to you to listen to you and to look for a solution.
If the dispute remains unresolved, you can send a written claim to TOKONEY by letter addressed to: TOKONEY, 85 Great Portland Street, London, W1W 7LT (UK), or by email to [email protected].
These Standard Terms and Conditions shall be governed by and construed in accordance with English law. Any dispute will be subject to the exclusive jurisdiction of the English courts.
In case there would be a discrepancy between the English version of these Standard Terms and Conditions and any translation, the English wording shall prevail.
Notwithstanding the terms set out in these Standard Trading Conditions, all Business undertaken by TOKONEY is subject to the current edition of the Standard Trading Conditions of the British International Freight Association.