YOUR SPECIAL DELIVERY SERVICE INC
Standard Terms and Conditions of Service
These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services.
(a) “Company” shall mean Your Special Delivery Service, Inc., its subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) “Third parties” shall include, but not be limited to, the following: “carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, packaging, handling and/or delivery and/or storage or otherwise”.
2. Company as Agent. Customer understands the company is not a “carrier” but that company will select and engage carriers on behalf of Customer. The Company acts as the “agent” of the Customer for the purpose of arranging transportation services, and of performing duties in connection with this service such as the filing of export and security documentation on behalf of the Customer and other dealings with Government Agencies together with other, ancillary services, including packing and storage of goods received incident to shipment. As to all other services, Company acts as an independent contractor.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within five (5) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer. Company reserves the right to inspect all items and wrapping materials that are being made subject to a claim. It is the responsibility of the Customer to retain the goods in the original container(s) and/or materials and to make such goods and materials available to Company or the carrier’s insurance company for inspection.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air transportation, within two (2) years from the date of the loss;
(iii) For any and all other claims of any other type, within two (2) years from the date of the loss or damage.
4. No Liability for the Selection or Services of Third Parties and/or Routes. Unless services are performed by person or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding. Quotations as to fees, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. Reliance on Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs & Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on Customer’s behalf;
(b) In preparing and submitting export declarations, applications, security filings, documentation and/or other required data, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect, incomplete or false statement by the Customer or its agent, representative or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
7. Declaring Higher Value to Third Parties. The Company and third parties to whom the goods are entrusted limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges. In the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
(a) Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance. The Company does not itself insure any transportation but uses reasonable care to contract with an insurance company to provide said insurance at an additional cost. Customer agrees to insurance company’s standard provisions, such as deductibles and limitations.
(b) Said insurance value must appear on the face of the BOL and may only be entered by employees of the Company. Declared values or Insurance amounts may not be altered once freight has been received for transport unless the carrier issues written consent for such alteration.
(c) Company reserves the right to inspect all freight under consideration for insured transit. Company’s employees shall be at liberty to effect additional wrapping and packing on such items, even in the event that such services were not originally requested. Additional charges incurred for packing will be the responsibility of the customer. Company shall only be responsible to inspect for surface conditions and apparent damage; all foregoing exclusions of this contract shall remain in force.
(d) In the event that insurance coverage is purchased and freight is accepted for transport that is packed by the shipper in advance of Company’s pick-up, then a “Total Loss” type insurance shall be in force. Total Loss type insurance covers losses incurred due exclusively to the following: theft, hijacking, or other felonious activity; fire, explosion, or other violent action; complete disappearance or accidental loss of entirety of items; puncture or rupture to packaging attributable to occurrences while in transport.
(e) Insurance covers freight only and do not cover value of packing containers or shipping charges. Company shall not be responsible to substantiate values of goods in transit; nor is the Company responsible to provide proof of origin or authenticate in any way such goods in transit regardless of description listed on the face of the BOL. Customers may not over-value goods or otherwise insure goods in transit in excess of their fair market values. The responsibility for providing documented proof of value in a claim shall rest entirely with the customer.
(f) Groups or multiple items of freight consigned for insured transport to which the customer assigns only one total insurance value for all items shall be insured by Company for total loss of the entire lot only. Loss to any individual items will not be covered under this type of insurance and will be at the risk of the customer. This limitation shall apply whether or not Company effects any packing to the freight.
(g) Company reserves the right to decline to provide insurance coverage based on Company’s inspection of freight. Any item that is deemed unfit to be covered by Company’s insurance policy will not be extended coverage. In such cases the insurance premium shall be removed from the customer’s bill.
9. Packed by Shipper. If Company is to receive freight that is packed by the shipper or his representative, it is the shipper’s responsibility to adequately pack and protect the goods to ensure safe transportation. The shipper is also obliged to properly label each item in order to prevent delay or errant dispatch.
10. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
(b) In connection with all services performed by the Company, Customer may obtain additional liability coverage up to the full value of the shipment by requesting insurance and agreeing to make payment therefore, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s);
(c) The Company’s liability shall under all circumstances be limited to $50.00 per shipment or transaction for loss or damage by any cause, including negligence;
(d) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties;
(e) Should any claim in an amount in excess of the foregoing limits of liability be asserted against Company by a third party for loss or damage to Goods handled by Company, the Shipper, Consignee, and Customer shall indemnify and hold Company harmless as against any such claim. This provision shall be in force regardless of the cause of such loss or damage, including negligence. Company shall not be liable for loss or damage due to lack of detailed and specific customer instruction in handling and/or placement of goods. The provisions of this contract also extend to items damaged inside a shipper, consignee’s or customers premises or place of business.
(f) Company cannot be held responsible and shall remain exempt from all liability for physical damage to a shipment, or loss caused by delay of delivery, when conditions beyond the carrier’s control are encountered during transit. Such conditions include but are not limited to: extreme weather and/or changes in temperature, acts of nature and God; breakdown or mechanical defect of vehicles or equipment; faulty or impassable highway; lack of capacity of roadway structures; highway obstruction or closure due to official action; civil disobedience, riots, strikes or lockouts; illegal or unlawful actions. “Loss caused by delay” as stated above is hereby understood to also define and apply to loss of revenue, interest, market, and/or utility. Company is not bound to transport goods by any particular means, schedule, vehicle, or otherwise than with reasonable dispatch.
(g) Company will be released from liability for a shipment when directed to accept and load or deliver and unload at locations where the shipper, consignee, customer or their agents are not present.
(h) Company is only liable to effect delivery and will not be liable for unwrapping or unpacking a shipment unless such requests are ordered in advance and in writing. “Inside delivery” is hereby defined as delivery taking place inside consignee’s location or structure at or near a common point of entry and within a reasonably accessible area.
(a) Customer automatically release Company from liability and responsibility for physical damage, loss or loss due to delay for items of freight as listed below:
• Items improperly or inadequately packed or mislabeled by the shipper.
• not professionally packed and secured by Company or via third party hired or directed by Company,
• Items containing internal damage or concealed breakage; glass and ceramic with existing cracks.
• Items of inherent vice or weakness due to poor craftsmanship in fabrication.
• Items containing internal mechanics or instrumentation.
• Items with waxen, resinous, or viscous surface area, be they in wet, semi-dry, or hardened state.
• Damaged or excessively worn antique items in disrepair, items exhibiting prior repairs or breakage.
• Uncured and/or not thoroughly dry paintings; uncured and/or unset varnish applied to furniture.
• Items with directional orientation to which the shipper does not affix descriptive arrows in advance.
• Items shipped unwrapped or in a state or a packaging type explicitly not recommended by Company at the stated request of the shipper, regardless of whether such loss or damage may be caused or contributed to by the negligence of the Company, its agents or employees.
In relation to subjective terms as used above (“inadequately packed”, “inherent vice”, “excessively worn”, etc.) it is understood that the customer allows and releases Company to define and interpret these terms as reasonably and commonly acceptable in Company’s industry and as applied against common and previous occurrences in the normal course of packing and shipping.
(b) The Company will not transport currency, specie, precious stones, jewelry, or negotiable documents at any time. In the event that the Company is made to transport such items without the Company’s knowledge or consent, the Company shall remain at no liability whatsoever for or in connection with the goods.
(c) The following types of shipments will not be handled by the Company under any circumstance: Contraband or illegal substances; firearms or ammunition; explosive, chemical or noxious goods; livestock or plants.
The act of consigning items of these types to Company which are willfully disguised by the shipper, acting with or without knowledge of the customer, shall entitle Company to recover any and all costs for fines, penalties, legal fees, damage to Company’s equipment and/or personal injury and compensation to Company’s employees. The Customer also shall be liable for and indemnify the Company against all loss or damage to other property or persons caused by said goods. The Company is at liberty to dispose of any items consigned with or associated with said goods at any time and place deemed appropriate by the Company with disposal charges billable to the customer.
12. Subcontracting: Company may subcontract the performance of any services to Third Parties (“Subcontractors”). Company shall not be liable or responsible for any negligence, malpractice, fault, errors or omissions in the performance of Services by any Subcontractor.
13. Advancing Money. All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer; the granting of credit to a Customer, subject to execution of the Company’s new account application and agreement, in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
14. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, damages, fines, penalties and/or attorney’s fees by reason of injury to or death of any person or by reason of injury to or destruction of Property or arising from the exportation of customer’s merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or other laws, or from any cause including but not limited to the fault, breach of warranty or negligence of Company, its officers, agents, subcontractors or employees and/or from the fault, breach of warranty or negligence of the Customer, its officers, agents, subcontractors or employees. Customer further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
15. C.O.D. or Cash Collect Shipments. Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letters(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
16. Costs of Collection. In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
17. General Lien and Right to Sell Customer’s Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company over ninety (90) days with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien;
(c) Unless, within thirty (30) days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
18. No Duty to Maintain Records for Customer. Customer acknowledges that it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “record keeper” or “recordkeeping agent” for Customer.
19. Preparation and Issuance of Bills of Lading. Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight and description supplied by Customer.
20. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
21. Compensation of Company. The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
22. Waiver of Liability and Subrogation for Goods Made Via Express Carriers: Customer understands that express carriers and their business practices are not designed to ship valuable or fragile items like art and antiques. When Customer contracts with Company to arrange transportation of valuable or fragile items like art or antiques via Federal Express, UPS, DHL or TNT, the customer shall assume all risks of damages to its shipment as a result of shipping via said entities. The Company, its employees and agents shall not be held liable for any damages or delay occurring as a result of a shipment via Federal Express, UPS, DHL or TNT. Customer shall relinquish his / her / its rights and that of his / her / its insurers to subrogate against Company for any damages resulting from services provided by Federal Express, UPS, DHL and TNT. Furthermore, the Customer shall indemnify and hold harmless Company from any claim or lawsuit arising from the shipment via Federal Express, UPS, DHL and TNT, including but not limited to, any action commenced by any insurers or Third Parties.
If any court or governing body should rule that Company cannot disclaim liability for this Service, any liability of Company shall be limited to the lesser of the cost to repair any alleged damage or the amount of the fee paid by the Customer for the Services performed by Company.
23. Severability. In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
24. Governing Law; Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of New York without giving consideration to principals of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court, Southern District of New York, and the Supreme Court of the City of New York;
(b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it; and
(d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
Price increase from January 1