1. Pertinence

1.2. Malf Enterprises, Inc. Standard Trading Conditions as a freight forwarder (hereinafter referred to as “the Freight Forwarder’s’ STC”) are made up with subject to the FIATA Model Rules For Freight Forwarding Services, Doc. 10/80 dated 1996-10-24, the Freight Forwarder’s STC still having precedence in case of deviation.

2. Applicability

2.1.These Conditions apply when they incorporated, however this is made, in writing, orally or otherwise, into a contract by referring to the Freight Forwarder’s STC. These Conditions are not necessarily to be inserted in a contract or any other document signed and/or issued by the Freight Forwarder in whole. Reference should be made to them in a contract or other documentation.

2.2.Whenever such reference is made the contracting parties agree that these Conditions shall supersede any additional terms of the contract which are in conflict with these Conditions, except insofar as they increase the responsibility or obligations of the Freight Forwarder compared to those stated in the Contract. 2.3.Copies of these STC are at any time available on request from the Freight Forwarder.

3. Definitions

In these Conditions:

3.1.Freight Forwarding Service (Services) means services of any kind relating to the carriage, consolidation, storage, handling, packing or distribution of the Goods as well as ancillary and advisory services in connection therewith, including but not limited to customs and fiscal matters, declaring the Goods for official purposes, procuring the insurance of the Goods and collect or procuring payment or documents relating to the Goods.

3.2.The Freight Forwarder is “Malf Enterprises. Inc.” 1528 Sheepshead Bay Road Brooklyn, NY 11235, USA

3.3.Customer means any person having rights or obligations under the contract of freight forwarding services concluded with the Freight Forwarder and at whose request or on whose behalf the Freight Forwarder provides freight forwarding services.

3.4.Carrier means any person actually performing the carriage of the Goods with his own means of transport (performing carrier) and any person subject to carrier liability as a result of an express or implied undertaking to assume such liability (contracting carrier).

3.5.Person includes any individual or legal person.

3.6.Owner includes the owner, shipper and consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on their behalf.

3.7.Goods includes any property (cargo) including live animals as well as containers, pallets or similar articles of transport or packaging not supplied by or on behalf of the Freight Forwarder, in respect of which the Freight Forwarder provides services.

3.8.Authority – a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport.

3.9.SDR means a Special Drawing Right as defined by the International Monetary Fund.

3.10.Mandatory Law means any statutory law the provisions of whichcannot be departed from by contractual stipulations to the detriment of the Customer and/or the Freight Forwarder.

3.11.In writing includes telegram, telex, fax or any recording by electronic means.

3.12.Valuables means bullion, coins, money, negotiable instruments, precious stones, jewellery, antiques, works of art and similar properties.

3.13.Dangerous Goods means Goods which are officially classified as hazardous as well as Goods which are or may become of a dangerous, inflammable, radioactive, noxious or damaging nature and goods likely to harbour or encourage vermin or other pests.

3.14.Instructions means a statement of the Customers specific requirements.

4a. Insurance

No insurance will be effected by the Freight Forwarder, except upon express instructions given in writing by the Customer. All insurances effected are subject to the usual exceptions and conditions of the Policies of the Insurance Company or Underwriters taking the risk. Unless otherwise agreed in writing, the Freight Forwarder shall not be under any obligation to effect a separate insurance on each consignment, but may declare it on any open or general Policy held by the Freight Forwarder. The Freight Forwarder is an agent in respect of the effecting of insurance and should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Freight Forwarder shall not be under any responsibility or liability whatsoever in relation thereto notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Freight Forwarder or paid to the Freight forwarder by its Customers.

4b. Hindrances

If at any time the Freight Forwarder’s performance is or is likely to be affected by any hindrance or risk of any kind (including the conditions of the Goods) not arising from any fault or neglect of the Freight Forwarder and which cannot be avoided by the exercise of reasonable endeavour, the Freight Forwarder may abandon the carriage of the Goods under the respective contract and, where reasonably possible, make the Goods or any part of them available to the Customer at a place which the Freight Forwarder may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of the Freight Forwarder in respect of such Goods shall cease. In any event, the Freight Forwarder shall be entitled to the agreed remuneration under the contract and the Customer shall pay any additional costs resulting from the above-mentioned circumstances.

5. Methods and Route of Transportation

5.1. The Freight Forwarder shall carry out his services according to the Customer’s instructions as agreed. If the instructions are inaccurate or incomplete or not according to contract, the Freight Forwarder may at the risk and expense of the Customer act as he deems fit.

5.2. Unless otherwise agreed, the Freight Forwarder may without notice to the Customer arrange to carry the Goods on or under deck and choose or substitute the means, route and procedure to be followed in the handling, stowage, storage and transportation of the Goods.

6. Methods and Route of Transportation

6.1. Except insofar as otherwise provided by these Conditions or a contract, the Freight Forwarder shall not be liable for any loss or damage whatsoever arising from:

• the act or omission of the Customer or Owner or any person acting on their behalf;
• compliance with the instructions given to the Freight Forwarder by the Customer, Owner or any other person entitled to give them;
• insufficiency of the packing and labelling of the Goods except where such service has been provided by the Freight Forwarder;
• handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf;
• inherent vice of the Goods;
• riots, civil commotion , strikes, lockouts, stoppage or restraint of labour from whatsoever cause,
• fire, flood or storm or
• any cause which the Freight Forwarder could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.

6.2.Unless otherwise previously agreed in writing that the Goods shall depart or arrive for a particular date, the Freight Forwarder accepts no responsibility for departure or arrival dates of Goods. In this respect the Freight Forwarder shall not be liable for loss or damage, whatsoever caused, to the property other than the Goods themselves, indirect or consequential loss or damage, loss of profit, delay or deviation.

6.3.The Freight Forwarder shall not be liable for loss, damage or delay in delivery with respect to Goods carried by sea or inland waterways when such loss, damage or delay during such carriage has been caused by:

• act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship;
• fire, unless caused by the actual fault or privity of the carrier, however, always provided that whenever loss or damage has resulted from unseaworthiness of the ship, the Freight Forwarder can prove that due diligence has been exercised to make the ship seaworthy at the commencement of the voyage.

7. The Freight Forwarder’s rights

7.1.The Freight Forwarder shall be entitled, except insofar as has been otherwise agreed in writing, to enter into contracts on behalf of itself or the Customer and without notice to the Customer.

• for the carriage of Goods by any means, routes or person;
• for the carriage of Goods of any description whether containerised or not on or under the deck of any vessel;
• for the storage, packing, transhipment, loading, unloading or handling of Goods by any person of any place where on shore or afloatand for any length of time;
• for the carriage or storage of Goods in containers or with other Goods of whatever nature; for the performance of its own obligations.

7.2. Unless otherwise agreed in writing the Freight Forwarder shall be entitled but under no obligation, to depart from the Customer’s instructions in any respect, if there is a good reason to do so in the Customers interest and it shall not thereby incur any additional liability.

7.3. The Freight Forwarder may at any time comply with the orders or recommendations given by any Authority. The responsibility of the Freight Forwarder in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.

7.4. If delivery of the Goods or any part thereof is not taken by the Customer or Owner at the time and place when and where the Freight Forwarder, or any person whose services the Freight Forwarder makes use of, is entitled to call upon the Customer or Owner to take delivery thereof, the Freight Forwarder or such other person shall be entitledto store the Goods in the open or under cover at the sole risk and expense of the Customer.

7.5. The Freight Forwarder shall have a particular and general lien on all Goods or documents relating to the Goods in its possession for all sums due to at any time from the Customer or Owner and on giving 28 days notice in writing to the Customer, shall be entitled to sell or dispose of such Goods (part of the Goods) or documents at the expense of the Customer and without any liability to the Customer and Owner and apply the proceeds in or towards the payment of such sums.

7.6. The Freight Forwarder shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained or paid to freight forwarders.

7.7. The Freight Forwarder shall have the right to enforce against the Owner and the Customer jointly and severally any liability of the Customer under these Conditions or to recover from them any sum to be paid by the Customer which upon demand have not been paid.

8. The Freight Forwarder’s liability

8.1.The freight Forwarder’s liability as agent

8.1.1.To extent as the Freight Forwarder acts as agent, he does not make or purport to make any contract with the Customer for the carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third partiesso that direct contractual relationship are established between the Customer and such third parties.

8.1.2.The Freight Forwarder’s Duty of Care The Freight Forwarder is liable if he fails to exercise due diligence and take reasonable measures in the performance of the Freight Forwarding Services, in which case he, subject to Art. 9 of these Conditions, shall compensate the Customer for loss of or damage to the Goods as well as for direct financial loss resulting from breach of his duty of care.

8.1.3.No Liability for Third Parties The Freight Forwarder is not liable for acts and omissions by third parties, such as, but not limited to, Carriers, warehousemen, stevedores, port authorities and other freight forwarders, unless he has failed to exercise due diligence in selecting, instructing or supervising such third parties.

8.2.The Freight Forwarder’s Liability as Principal

8.2.1.To the extent that the Freight Forwarder contracts as principal to carry out the Customer’s instructions, the Freight Forwarder undertakes to perform or in his own name to procure performance of the Customer’s instructions and, subject to the provisions of these Conditions, shall be liable for the loss of or damage to the Goods occurring from the time that the Goods are taken into his charge until the time of delivery.

8.2.2.The Freight Forwarder’s Liability as Carrier The Freight Forwarder is subject to liability as principal not only when he actually performs the carriage himself by his own means of transport (performing Carrier), but also if, by issuing on his behalf a transport document or otherwise, he has made an express or implied undertaking to assume Carrier liability (contracting Carrier)

8.2.3.The Freight Forwarder’s Liability as Principal for Other Services With respect to services other than carriage of Goods such as, but not limited to, storage, handling, packing or distribution of the Goods, as well as ancillary services in connection therewith, the Freight Forwarder shall be liable as principal:

• when such services have been performed by himself using his own facilities or employees or
• if he has made an express or implied undertaking to assume liability as principal.

8.2.4.The Basis of the Freight Forwarder’s Liability as Principal The Freight Forwarder as principal shall, subject to Art.9 thereof, be responsible for the acts and omissions of third parties he has engaged for the performance of the contract of carriage or other services in the same manner as if such acts and omissions were his own and his rights and duties shall be subject to the provisions of the law applicable to the mode of transport or service concerned, as well as the additional conditions expressly agreed or, failing express agreement, by the usual conditions for such mode of transport or services.

9. Exclusions, Assessment and Monetary Limits of liability

9.1. Exclusions

The Freight Forwarder shall in no event be liable for:

1. Valuables or Dangerous Goods unless declared as such to the Freight Forwarder at the time of the conclusion of the contract,
2. loss following from delay unless expressly agreed in writing,
3. indirect or consequential loss such as, but not limited to, loss of profit and loss of market.

9.2. Assessment of compensation  The value of the Goods shall be determined according to the current commodity exchange price or, if there is not such price, according to the current market price or, if there is no commodity exchange price of current market price, by reference to the normal value of Goods of the same kind and quality.

9.3. Monetary limits

9.3.1. Loss of or damage to the Goods

Notwithstanding the provisions of Art.8.2.4., the Freight Forwarder shall not be or become liable for any loss of or damage to the Goods in an amount exceeding the equivalent of 2 SDR per kilogram of gross weight of the Goods lost or damaged. If the Goods have not been delivered within ninety consecutive days after the date when the Goods ought to have been delivered, the claimant may, in the absence of evidence to the contrary, treat the Goods as lost.

9.3.2.Limitation of liability for Delay

If the Freight Forwarder is liable in respect of loss following from delay, such liability shall be limited to an amount not exceeding the remuneration relating to the service giving rise to the delay.

9.3.3.Other type of loss

Notwithstanding the provisions of Art.8.2.4., the Freight Forwarder’s liability for any type of loss not mentioned in 9.3.1. and 9.3.2. shall not exceed the total amount of USD 750,000* for each incident.

10. Notices

10.1. Unless notice of loss of or damage to the Goods, specifying the general nature of such loss of damage, is given in writing to the Freight Forwarder by the person entitled to receive the Goods when they are handed over to him, such handing over is prima facie evidence of the delivery of the Goods in good order and conditions.
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*The maximum liability limit is the subject to annual revision depending on the Freight Forwarder’s insurance conditions.

Where such loss or damage is not apparent, the same prima facie effect shall apply if notice in writing is not given within 6 consecutive days after the day when the Goods were handed over to the person entitled to receive them.

10.2. With respect to all other loss or damage, any claim by the Customer against the Freight Forwarder arising in respect of any service provided for the Customer or which the Freight Forwarder has undertaken to provide shall be made in writing and notified to the Freight Forwarder within 14 days of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim. 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 for him to comply with this time limit and that he has made the claim as soon as it was reasonably possible for him to do so.

11. Time Bar

The Freight Forwarder shall, unless otherwise expressly agreed, be discharged of all liability under these Rules unless suit is brought within 9 months after the delivery of the Goods, of the date when the Goods should have been delivered, or the date when failure to deliver the Goods would give the consignee the right to treat the Goods as lost.

With respect to other loss than loss of or damage to the Goods the 9 months period should be counted from the time when the failure of the Freight Forwarder giving right to the claim occurred.

12.Liability of Servants and Other Persons

These Conditions apply whenever any claim is made against a servant, agent or other person the Freight Forwarder engaged for the performance of the service (including any independent contractor) whether such claims are founded in contract or in tort, and the aggregate liability of the Freight Forwarder and such servants, agents of other persons shall not exceed the limit applicable to the service concerned as expressly agreed between the Freight Forwarder and the Customer or following from these Conditions.

13.Unforeseen Circumstances

In the event that the Freight Forwarder, in case of unforeseen circumstances, acts in the best interest of the Customer extra costs and charges have to be borne by the Customer.

14. No set-off

All monies due shall be paid without any reduction or deferment on account of any claim, counter-claim or set-off.

15. General Lien

The Freight Forwarder shall, to the extent permitted by the applicable law, have a general lien on the Goods and any documents relating thereto for any amount due at any time to the Freight Forwarder from the Customer including storage fees and the cost of recovering same, and may enforce such lien in any reasonable manner which he may think fit.

16. Information

The Customer shall be deemed to have guaranteed to the Freight Forwarder the accuracy, at the time the Goods were taken in charge by the Freight Forwarder, of all particulars relating to the general nature of the Goods, their marks, number, weight, volume and quantity and, if applicable, to the dangerous character of the Goods, as furnished by him or on his behalf.

17. Duty of Indemnification

17.1. General duty of indemnification

Except to the extent that the Freight Forwarder is liable according to the provisions of Part II, the Customer shall indemnify the Freight Forwarder for all liability incurred in the performance of the Freight Forwarding Services.

17.2. Duty of indemnification in respect of General Average

The Customer shall indemnify the Freight Forwarder in respect of any claims of a General Average nature which may be made on him and shall provide such security as may be required by the Freight Forwarder in this connection.

18. The Customer’s liability

The Customer shall be liable to the Freight Forwarder for all loss or damage, costs, expenses and official charges resulting from the Customer’s inaccurate or incomplete information or instructions or the handing over by the Customer or any person acting on his behalf to the Freight Forwarder, or to any other person to whom the Freight Forwarder may become liable, of Goods having caused death or personal injury, damage to property, environmental damage or any other type of loss.

19. Jurisdiction and Applicable Law

Unless otherwise agreed, actions against the Freight Forwarder shall be instituted and decided at International Commercial Arbitration Court of Chamber of Trade and Industry of Ukraine in Kiyiv according to the rules and procedures applicable there.

20.Mandatory Law

These Conditions shall only take effect to the extent that they are not contrary to the mandatory provisions of international conventions or national law applicable to the Freight Forwarding Services, where the stage of carriage where the loss or damage occurred can be proven.