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.
1.
Definitions.
(a) "Company" shall mean All Pack Express 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) "Ocean Transportation Intermediaries"
("OTI") shall include an "ocean freight forwarder" and a
"non-vessel operating carrier";
(e) "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, handling and/or delivery
and/or storage or otherwise".
2.
Company as agent. The Company acts as the "agent" of the Customer for the
purpose of performing duties in connection with the entry and release of goods,
post entry services, the securing of export licenses, the filing of export
documentation on behalf of the Customer and other dealings with Government
Agencies: 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 ninety (90) 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.
(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 claims arising out of the preparation and/or
submission of an import entry(s), within seventy five (75) days from the date
of liquidation of the entry(s);
(iv) 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 persons 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, rates of duty, 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 the Customs Service,
other Government Agency and/or third parties, and will immediately advise the
Company of any errors, discrepancies, incorrect statements, or omissions on any
declaration filed on Customers behalf;
(b) In preparing and submitting customs entries, export
declarations, applications, documentation and/or export data to the United
States and/or a third party, 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 or false statement
by the Customer 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. Third parties to whom the goods are entrusted may
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 therefor; 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
8.
Insurance.
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.
9.
Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes
no express or implied warranties in connection with its services;
(b) Subject to (c) below, Customer agrees that in
connection with any and all services performed by the Company, the Company
shall only be liable for its negligent acts, which are the direct and proximate
cause of any injury to Customer, including loss or damage to Customer’s goods,
and the Company shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by the
Company, Customer may obtain additional liability coverage, up to the actual or
declared value of the shipment or transaction, by requesting such coverage and
agreeing to make payment therefor, which request must be confirmed in writing
by the Company prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (b) above,
the Company’s liability shall be limited to the following:
(i) where the claim arises from activities other than
those relating to customs brokerage, $50.00 per shipment or transaction, or
(ii) where the claim arises from activities relating to
"Customs business," $50.00 per entry or the amount of brokerage fees
paid to Company for the entry, whichever is less;
(e) 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.
10. 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 in connection with a particular
transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold
Harmless. The Customer agrees to
indemnify, defend, and hold the Company harmless from any claims and/or
liability arising from the importation or exportation of customers merchandise
and/or any conduct of the Customer, which violates any Federal, State and/or
other laws, and further agrees to indemnify and hold the Company harmless
against any and all liability, loss, damages, costs, claims 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.
12. 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, letter(s) of credit and other
similar payment documents and/or instructions regarding collection of monies
but shall have not liability if the bank or consignee refuses to pay for the
shipment.
13. 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.
14. 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 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 on-going 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 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.
15. No Duty To
Maintain Records For Customer.
Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act,
as amended, (19 USC §1508 and 1509) 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 "recordkeeper" or
"recordkeeping agent" for Customer.
16. Obtaining
Binding Rulings, Filing Protests, etc. Unless
requested by Customer in writing and agreed to by Company in writing, Company
shall be under no obligation to undertake any pre- or post Customs release
action, including, but not limited to, obtaining binding rulings, advising of
liquidations, filing of petition(s) and/or protests, etc.
17. 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 supplied by Customer.
18. 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.
19. 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.
20. 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.
21. 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