EMS express company still 10 home with his no-trade clause

Shenzhen commercial daily reporter LiuJinYu

 

The express industry controlled comment on no-trade clause, the enterprises in question to mend its terms, subjective initiative is not strong, most of the enterprise was not even any amendment. The journalist learned from city council, which express company to 11 part of the format contract terms selective examination found that only 1 companies did not use wade evaluation terms.

 

Only one enterprise fails to wade no-trade clause

 

It is reported, Fedex field were comment on terms have five lines, the total surveyed EMS (China) Co., LTD, Courier services YunDa (Shanghai YunDa shipping Co., LTD.), optimal speed (guangdong optimal speed logistics Co., LTD. (Shanghai), zhongtong zhongtong Courier Co., LTD), ShenTong express ShenTong (Shanghai) Co., LTD, yuantong express yuantong limited company (Shanghai), huitong (Shanghai increase state industrial Co., LTD), dhl-sinotrans DHL (generated - international aviation express dhl-sinotrans Co., LTD), federal Fedex (Fedex China Co., LTD), TNT (lotus god to China) investment Co., LTD, UPS (United yet Service "United Parcel Service company's optimal than speed package delivery (guangdong Co., LTD) 11 express company, of which only home 1 express company found no wade evaluation terms, 10 other companies are in use wade evaluation terms.

 

City council says, in these in selectiving examination is found to exist in terms of enterprise, wade assessment which will be issued warnings letter, and pay close attention to its rectification; Also hope that is selectived examination to but not exist wade evaluation terms enterprise can actively make self-examination and rectification.

 

Most enterprises restricted claims prescribed

 

In the express industry, limiting claims prescribed to exempt itself liability clauses are common. Such as "if necessary, please in acceptance within 30 days from the date of query and claim for compensation, overdue claim is deemed waived." But 2008 city council will think this clause is invalid, and in this survey, only 3 enterprises will no longer use this kind of no-trade clause.

 

City council that express company to set claims prescribed, belong to exclude each other main rights. Basis "contract law" "provide the format of the contract party exempt from its main responsibility, increases the other main responsibility, exclude other rights, invalid under" and "XiaoFa" "an operator shall not standard contracts, circulars, announcements, shop notices, etc to consumers unfair ways to make the unreasonable regulations, or alleviate or removed from the harmful to consumers' legal rights and shall bear civil liability" regulation, this clause belongs to the invalid provision.

 

This in selectiving examination, EMS, huitong, yuantong, optimal speed, YunDa, federal Fedex, dhl-sinotrans DHL, UPS still in use such terms. Did not find other three express company use such terms.

 

Most enterprises unused "express delay not to compensate" clause

 

"The company will be transported by normal standards reasonable efforts to distribute, but these standards does not belong to promise, also does not constitute a part of this agreement, the company wrong transportation delay caused any loss or damage to any responsibility." Such as such "express delay not to compensate" clause was express industry was the man GouMa no-trade clause. This in selectiving examination, besides dhl-sinotrans DHL, other that is selectived examination 10 express enterprises are no longer in use.

 

City council thinks, this provision "company wrong transportation delay caused any loss or damage to any liability", is a typical unfair format on the terms of the contract. Express company management characteristic in namely a "fast", quickly and safely delivered to the addressee, is not only express Courier contracts the most basic content, as well as the basic express company shall perform the obligations. If unable to express company delivered, constitutes the actual breach, it shall be liable for breach of contract.

 

The two companies are still in use "random kaifeng check sent item" clause

 

"Our company have absolute right to every ticket express kaifeng check whether to conform to the relevant government authorities stipulated or flight restrictions, such as the discovery of sent item and illegal prohibited, have the right to return or refused". "The company reserves the right to the sender without notifying the case of kaifeng check sending goods". For thus has "absolute right" do not inform the sender can kaifeng check sent item no-trade clause, the zhuhai consumers' council 2008 had also comment on.

 

In that first, send express, if it's letter, according to the provisions of the constitution, communication freedom and privacy is protected by law. Except for national security or of investigation into criminal offences need, by public security organs, state security organs or procuratorial organs in accordance with procedures prescribed by law, inspect outside communication by any organization or individual shall check the content, otherwise constitute infringement of the right of communication liberty and privacy. Second, its delivery if non letters items, express the enterprise shall have the right to inspect, but this right is not "absolute rights", but limited rights, namely inspection shall pay mail items; when face to face, If after after inspection of contraband still send, express company will bear corresponding legal responsibilities. Visible, our country law does not give any express company "absolute JianZhaQuan", this no-trade clause violates relevant laws, and even violates the provisions of the constitution, when is void.

 

This in selectiving examination, only TNT and UPS still in use such terms.

 

"Force majeure duty limits" clause: 4 enterprises according to use not mistake

 

"For exceeding this company control range of caused loss or damage, the company is not liable, these reasons including but not limited to: natural disasters, war, air or force majeure, such embargo express inherent defect or characteristics (no matter whether the company knows); rebellion or folk riots; the company employees or with our company, no contract relationship personnel of an act or omission, such as the sender, the recipient or the third person, customs or government authority of interference; labor events; for electronic audio and video images, data, or record of electrical magnetic damage or deleted."

 

City council thinks, the above terms arbitrary expand the "force majeure" duty limits, without equal consultations and set arbitrary disclaimer reason, And when the contract without prompting the sender related limit content, or with minimal font smooth. First, the law to "force majeure" have defined strictly, namely "unforeseeable, unavoidable and insurmountable objective conditions," issues terms listed items, not all belong to the force majeure, even if due to "force majeure" cause is unable to perform a contract, and shall, in accordance with the "contract law" regulation, according to the effects of the force majeure, some or all, not exempted from liability shall assume no liability "." Second, express company due to "force majeure" is unable to perform a contract, basis "contract law" regulation, it shall promptly notify the other party so as to mitigate the loss of may be caused to the other party, and shall provide proof of force majeure within a reasonable time. Third, first delay in performance, an event of force majeure occurred after, basis "contract law" regulation, cannot claim disclaimer. Fourth, except for the disclaimer unconformity and legal outside, also can both parties agreed. In accordance with the "contract law" regulation, by way of standard terms to enter into a contract, cannot be remitted contract provides square main responsibility.

 

In this in selectiving examination, optimal speed, zhongtong, dhl-sinotrans DHL, TNT still in use such terms.