TERMES & CONDITIONS
(Please Read Carefully)
All Shipments (defined below) to or from the signatory to this Agreement (hereinafter the “Customer”, which term shall include the exporter, importer, sender, receiver, owner, consignor, consignee, transferor, or transferee of the Shipment(s)) will be handled by Prime Group, Prime Air Cargo, Prime Logistics, Prime Fresh Handling and their affiliates and subsidiaries (singularly or collectively, as applicable, hereinafter called the “Company”). Prime Group and its their affiliates and subsidiaries (singularly or collectively, as applicable, hereinafter called the “Company”), on the following terms and conditions. The term “Shipment” or “Shipments” as used herein shall be included but not limited to the following activities provided by Prime Group and its their affiliates and subsidiaries: receipt and warehousing, distribution, customs clearance, trucking, forwarding, carriage, air transport, ocean transport, and any and all other services provided by Prime Group and its their affiliates and subsidiaries on behalf of its customers which term is to be liberally and broadly construed in favor of Prime Group and its their affiliates and subsidiaries.
- Services by Third Parties.Unless the Company carries, stores, or otherwise physically handles the Goods, and loss, damage, expense, or delay occurs during such activity, the Customer agrees that the Company shall not be liable or responsible for any loss, damage, expense, or delay to the Goods except subject to the limitations of paragraphs 8 through 10 below. The Company undertakes only to use reasonable care in the selection of carriers, truckmen, forwarders, customs brokers, agents, warehousemen, and others to whom the Company may entrust the Goods for transportation, cartage, handling, delivery, and/or storage or otherwise.
- Liability Limitations of Third Parties.The Company is authorized to select and engage carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen, and others, as required, to transport, store, deal with, and deliver the Goods, all of whom shall be considered as the independent contractors of the Customer, and the Goods may be entrusted to such contractors, subject to all limitations of liability of paragraphs 8 through 10 below. The Customer agrees that the Company shall under no circumstances be liable for any loss, damage, expense, or delay to the Goods for any reason whatsoever when said Goods are in the custody, possession, or control of third parties selected by the Company with reasonable care to forward, enter and clear, transport, or render any other services with respect to the Goods.
- Choosing Routes or Agents.Unless express written instructions are received from the Customer, the Company has complete freedom in choosing the means, route, and procedure to be followed in the handling, transportation, and delivery of the Goods. Notification by the Company to the Customer 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 and the Company shall not be liable for any loss, damage, expense, or delay to the Goods for any reason whatsoever in the event a different person or firm provides such services.
- 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 and shall not under any circumstances be binding upon the Company unless the Company in writing specifically undertakes the handling or transportation of the Shipment at a specific rate.
- Duty to Furnish Information.(a)With respect to an import of Goods into the United States, at a reasonable time prior to entry of the Goods for U.S. Customs, the Customer shall furnish the Company with invoices in proper form and other documents necessary or useful in the preparation of the U.S. Customs entry. In addition, the Customer shall furnish such further information as may be required to establish, inter alia, the dutiable value, the classification, the country of origin, the genuineness of the Goods and any mark or symbol associated with the Goods, the Customer’s right to import and/or distribute the Goods, and the admissibility of the Goods, pursuant to U.S. law or regulation. If the Customer fails to timely furnish such information or documents, in whole or in part, as may be required to complete U.S. Customs entry or comply with U.S. laws or regulations, or if the information or documents furnished are inaccurate or incomplete, the Company shall be obligated only to use the Company’s reasonable judgment in connection with the Shipment and in no instance shall the Company be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete, or omitted information or document pertains. The Customer hereby appoints the Company to be the attorney in fact for the Customer in connection with the execution of any bond that may be required by U.S. Customs for the production of any document or the performance of any act. Where a bond is required by U.S. Customs, the Customer shall be deemed bound by the terms of the bond even in the event that the bond is executed by the Company as principal, with the understanding that the Company entered into such undertaking at the instance and on behalf of the Customer, and the Customer shall indemnify and hold the Company harmless from and against all damages, costs, and/or losses that may result in connection with any breach of the terms of the bond. (b) With respect to an export of Goods from the United States, at a reasonable time prior to the export of the Shipment, the Customer shall furnish to the Company the commercial invoice for the Goods, in proper form and number, a proper consular declaration, and weights, measures, values, and other information in the language of and as may be required by the laws and regulations of the United States and the country of destination of the Goods. (c) With respect to an export or an import of Goods, the Company shall not in any way be responsible or liable for increased duty, penalty, fine, or expense unless same is caused by the negligence or gross misconduct of the Company. The Company’s liability to the Customer under this paragraph 5(c) shall be specifically governed and limited by the provisions of paragraphs 8 through 10 below. The Customer shall be bound by and hereby warrants the accuracy of all invoices, documents, and information furnished to the Company by the Customer or the Customer’s agent for export, entry, or other purposes and the Customer agrees to indemnify and hold harmless the Company from and against any increased duty, penalty, fine, expense (including attorneys’ fees), loss, and/or damages resulting from any inaccuracy, incomplete statement, omission, or failure to make timely presentation, even if not due to any negligence or misconduct of the Customer.
- Declaring Higher Valuation.The Customer acknowledges that truckers, carriers, warehousemen, and others to whom the Goods are entrusted (hereinafter “Entrustees”) generally establish limits on their liability for loss or damage to the Goods unless a higher value is declared, the Entrustee accepts such higher value, and an additional charge is paid to the Entrustee in consideration for its acceptance of increased liability with respect to the Goods. The Customer agrees that the Company is not responsible for requesting or obtaining such increased limit of liability from any Entrustee until and unless (i)the Company receives specific written instructions from the Customer to pay such higher charge based on the valuation of the Goods and (ii) the Entrustee accepts such higher declared value. If either one or both of items (i) and (ii) of the immediately preceding sentence does not occur, the valuation placed by the Customer on the Goods shall be considered solely for export or customs purposes and the Goods will be delivered to the Entrustees subject to the limitations of liability set forth in paragraphs 8 through 10 below with respect to any claim against the Company and subject to the provisions of paragraph 2 above.
- Insurance.The Company will make reasonable efforts to effect marine, fire, theft, and other insurance for the Goods only after receipt by the Company of the Customer’s specific written instructions in sufficient time prior to shipment from point of origin. Such written instructions to the Company shall specifically designate the kind and amount of insurance to be placed. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has the Customer’s own open marine policy and timely instructs the Company to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by the Company in its sole discretion. Any insurance placed shall be governed by the certificate or policy issued and will be effective only if and when accepted by such insurance company or underwriter. Should an insurer dispute liability for any reason, the Customer shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding the fact that the premium upon the policy may be less than the rate charged by the Company to the Customer or that the Shipment was insured under a policy in the name of the Company. Premiums for insurance and any and all fees charged by the Company for arranging said insurance shall be paid by the Customer. If for any reason the Goods are held in a warehouse or elsewhere, the same will not be covered by any insurance unless the Company receives specific written instructions from the Customer to obtain insurance for the Goods. Unless specifically agreed in writing, the Company assumes no responsibility to effect insurance on any export or import shipment.
- Limitations of Liability.The Customer agrees that the Company shall in no event, specifically including, but not limited to, the Company acting as a bailee in the event of a bailment, be liable for any loss, damage, expense, or delay to the Goods resulting from the negligence or gross misconduct of the company for any amount in excess of $50 per shipment. Any partial loss or damage for which the Company may be liable shall be adjusted pro rata on the basis of such valuation. The Customer hereby agrees that the limitation of liability as set forth herein has been negotiated by the Customer with the Company and that such limitation is reasonable under the circumstances surrounding this Agreement. The Customer has the option of paying a special compensation to increase the liability of the Company in excess of $50 per Shipment in case of any loss, damage, expense, or delay from causes which would make the Company liable, but such option may be exercised only by specific written agreement made with the Company prior to shipment which agreement shall indicate the limit of the Company’s liability and the special compensation for the added liability to be assumed by the Company. The Company shall in no event be liable for any loss, damage, expense, or delay due to any strike, lockout, civil commotion, war-like operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or controls, the inherent vice or nature of the Goods, act of god, or other cause beyond the reasonable control of the Company. The Company warrants, regarding perishable cargo, to exercise due diligence to maintain the air temperature to the cargo within a range of plus or minus 5 degrees Fahrenheit of the temperature requested in writing by the Customer.
- Presenting Claims.Subject to the provisions of paragraph 8, the following limitations shall apply to the presentation of claims. Unless otherwise provided by Florida or federal law, the Company shall not be liable for any act, omission, or default by the Company in connection with a Shipment unless a claim therefor shall be presented to such the Company at the Company’s office within fifteen (15) days, and in the case of perishable cargo, two (2) days from delivery date. Notwithstanding anything in the previous sentence, if the Shipment is covered by an airway bill or bill of lading, the terms and conditions of the airway bill or bill of lading shall apply, specifically including, but not limited to, the time periods set forth therein for presenting written claims for damage, loss, or non-delivery or any other act, omission, or default by the Company in connection with a Shipment. All claims presented to the Company must include a written statement to which sworn proof of claim shall be attached. Notwithstanding the foregoing, no suit to recover for any claim or demand hereunder shall in any event be maintained against the Company unless instituted within six (6) months after presentation of a claim or within the time period specified in the terms and conditions of the airway bill or bill of lading governing the shipment, whichever is longer. No agent or employee of the Company shall have authority to alter or waive any of the provisions of this clause.
- Liability of Company.Subject to the provisions of paragraph 8 above, the Customer agrees that (i) any claim or demand for loss, damage, expense, or delay shall be only against the carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen, or others in whose actual custody or control the Goods may be at the time of such loss, damage, expense, or delay, and (ii) that the Company shall not be liable or responsible for any claim or demand from any cause whatsoever, unless in each case the Goods were in the actual custody or control of the Company and the damages alleged to have been suffered be proven to have been caused by the negligence or gross misconduct of the Company, its officers, or its employees, in which event the limitations of liability set forth in paragraph 8 and the requirements of paragraph 9 shall apply. Notwithstanding paragraph 8 above, the Company shall not in any circumstances be liable for incidental, consequential, or punitive damages or damages arising from loss of profit.
- Advancing Money.The Company shall not be obliged to incur any expense, guarantee any payment, or advance any money in connection with the importing, forwarding, transporting, insuring, storing, or coopering of the Goods, except to the extent that the Customer specifically requests such services pursuant to the terms of this Agreement and to the extent the funds have been previously provided to the Company by the Customer on demand. The Company shall be under no obligation to advance freight charges, customs duties, or taxes on any Shipment. Notwithstanding the foregoing, in the event the Company elects, at its sole option and discretion, to advance money on behalf of the Customer, the Customer shall reimburse the Company for such advance in full promptly upon demand. No advance by the Company of the charges described in this paragraph shall be deemed or construed as a waiver of the provisions of this paragraph.
- Indemnification.In the event that a carrier, other person, legal entity, or governmental agency makes a claim or institutes legal action against the Company for ocean or other freight duties, fines, penalties, liquidated damages, or other money due arising from a Shipment, the Customer agrees to indemnify and hold harmless the Company for any amount the Company may be required to pay such carrier, other person, or governmental agency together with reasonable expenses, including attorneys’ fees, incurred by the Company in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the any part or all of the Shipment by any governmental authority shall not affect or diminish the liability of the Customer to the Company to pay all charges or other money due pursuant to this Agreement. Such charges or other money due must be paid by the Customer promptly on demand.
- C.O.D. Shipments.Goods received with the Customer’s or another person’s instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise or to collect on any specified terms by time drafts or otherwise are accepted by the Company only upon the express understanding that the Company will exercise reasonable care in the selection of a bank, correspondent, carrier, or agent to whom the Company will send such item for collection, and the Company will not be responsible for any act, omission, default, suspension, insolvency, want of care, negligence, or fault of such bank, correspondent, carrier, or agent; for any delay in remittance lost in exchange; for loss during transmission; or, for loss while in the course of collection.
- Lien Rights.The Company shall have a general lien on any and all property (and documents relating thereto) of the Customer in the Company’s possession, custody or control, or en route, for all claims for charges, expenses, or advances incurred by the Company in connection with any shipments of the Customer. If such claim remains unsatisfied for thirty (30) days after demand for payment of the claim is made, the Company may sell at public auction or private sale, upon ten (10) days written notice by registered mail (R.R.R.) to the Customer, the Goods and other property of the Customer in the Company’s possession, custody, control, or en route, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amount due to the Company. Any surplus from such sale shall be transmitted to the Customer, and the Customer shall be liable for any deficiency in the sale. Additionally, the Company may exercise any and all remedies that may be available to it under federal law and/or the laws of the State of Florida.
- Compensation of Company.The compensation paid to the Company for the Company’s 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, commission, dividend, or other revenue that may be 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 statement 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 by or against the Customer based upon this Agreement, the prevailing Party shall be entitled to receive the expenses of collection and/or litigation, including reasonable attorneys’ fees at trial and appellate levels. All sums payable to the Company are due when incurred and shall be paid without offset or deduction of any kind including claims whether then pending or not.
- No Responsibility for Governmental Requirements.It is the responsibility of the Customer to know and comply with the marking requirements of the U.S. Customs Service, the regulations of the U.S. Food and Drug Administration, and all other requirements pertaining to the Goods, including, but not limited to, requirements pursuant to any treaty or pursuant to laws and regulations of any international organization, federal, state, or local entity, or agency of any port of origin or delivery, within or without the United States, at which port the Customer’s Goods are handled by the Company. The Company shall not be responsible for action taken or fines or penalties assessed by any governmental entity against the Shipment and/or the Customer due to the Customer’s failure to comply with the laws, requirements, or regulations of any governmental entity or a notification issued to the Customer by any such entity. The Company is authorized to surrender the Shipment or any part thereof to any such governmental entity upon request by such governmental entity for alleged violations of such laws, requirements, or regulations, without liability therefor.
- Indemnity against Liability Arising from the Import or Export of Goods.The Customer agrees to indemnify and hold the Company harmless from any claims and/or liability arising from the import or export of a Shipment of Goods which violates any treaty or the laws or regulations of any international organization, federal, state, and/or local entity and/or agency of any port of origin or delivery, within or without the United States, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damage, cost, claim, and/or expense, including but not limited to attorneys’ fees, that the Company may hereafter incur, suffer, or be required to pay by reason of any claim by any governmental entity or private party. In the event that any action, suit, or proceeding is brought against the Company by any governmental entity or any private party, the Company shall give notice in writing to the Customer by mail at the Customer’s address on file with the Company. The Customer agrees that it must keep its address with the Company current. Upon receipt of such notice, the Customer at the Customer’s own expense shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the Company.
- Payments to the Company.Any and all payments made by the Customer to the Company are made in the regular course of the Customer’s business. Further, the Customer acknowledges that in connection with payments made by the Customer to the Company for any third parties, e.g., independent carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen, and others, the Company is acting solely as a conduit to facilitate the transfer of the payments from the Customer to such third parties.
- Independent Contractor.Except for Customs entries and duties in which circumstances the Company is an agent of the Customer, the Company is an independent contractor.
- Customer’s Duty to Correct Inaccurate Information.The submission of incomplete or inaccurate information related to an import entry, including descriptions, quantities, weights, purchase prices, discounts, commissions, changed selling prices at time of exportation, assists, country of origin, etc., may subject the party submitting such incomplete or inaccurate information to severe governmental penalties or sanctions. Accordingly, to avoid any such violation, the Customer shall immediately notify the Company, in writing, if the information forwarded to the Company or that accompanied the Shipment does not accurately reflect the entire transaction. If, in the Customer’s opinion, written notification would be untimely to enable the Company to take corrective action, then the Customer must notify the Company orally and in writing. Upon such notification, the Company will use reasonable efforts to take corrective action. In any event, the Customer shall be liable and solely responsible for any governmental penalties or sanctions resulting from such incomplete or inaccurate information. The Customer agrees to indemnify the Company and hold the Company harmless as a result of any such submission of incomplete or inaccurate information.
- Severability of Terms.If any term, covenant, or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant, or condition to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
- Construction of Terms and Venue.The foregoing terms and conditions shall be construed according to the laws of the State of Florida. The Customer accepts and confirms that this Agreement is a contract made in the State of Florida. The Customer expressly agrees that exclusive jurisdiction for any claim or dispute with respect to this Agreement resides in the Miami courts of the State of Florida. The Customer further agrees and expressly consents to the exercise of personal jurisdiction by the Miami courts of Florida over the Customer in the State of Florida in connection with any dispute or claim involving the Company. Unless otherwise consented to in writing by the Company, no legal proceeding against the Company may be instituted or maintained by the Customer, its assigns, or its subrogees except in the City of Miami, Dade County, Florida.
- Customer Bound.This Agreement shall apply to and bind the heirs, executors, administrators, successors, and permitted assigns of the parties. Changes, terminations, modifications, or amendments hereto shall only be effective if in writing and executed by Customer and Company.
- No Waiver.The failure or delay of the Company at any time to require performance by the Customer of any provision of this Agreement shall not affect the right of the Company to require performance of that provision or to exercise any right, power, or remedy hereunder. Any waiver by any party of breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provisions, a waiver of the provision itself, or a waiver of any right, power, or remedy under this Agreement. No notice to or demand on the Customer in any case shall entitle the Customer to any other or further notice or demand in similar or other circumstances.
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 PRIME AIR CARGO DBA PRIME LOGISTICS, 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 principals, 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 and security 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 claim arising out of the preparation and/or submission of an import entry(s), within seventy-five (75) days from the date of liquidation of
(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 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 Customer 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 or other submission 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, incomplete 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 accurate 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 therefore; 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.
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) bellow, Customer agrees that in connection with any and all services performed by the company, the Company shall only be liable for it negligent acts. Which are 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 therefore, 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 business, $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 liabilities, 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 not have 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 fifteen (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.
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 States of California and Florida without giving consideration to principles of conflict of law. Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of California and Florida;
(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.