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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
(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.