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 Richard G. Fleischer CHB or Fleischer Freight Services, 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 principals, agents and/or representatives, including, but not limited lo,
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 inclu
de an "ocean freight forwarder" and a "non-vessel operating carrier";
(e) "Third parties" shall Include, but not be limited lo, the following: 'carriers, truckmen, cartmen, lightermen, forwarders, OTls,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 lo 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;
(II 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 lo 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 lo 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 lo render services with respect to the goods, shall not be construed lo 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 a
ctions(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 lo undertake the handling or transportation of the shipment at a specific rate or amount set forth In the quotation and payment arrangements are agreed lo 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 U.S. Customs & Border Protection, other Government Agency and/or third parties, and will immediate
ly 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, 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 insure 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 lo disclose information or any incorrect, incomplete or false statement by the Customer or it's 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. Third parties lo 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 lo a higher
declared value, al Company's discretion, the goods may be tendered to the third party, subject lo the terms of the third party's limitations of liability and/or terms and conditions of service.
(a) 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 premi
ums 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) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up lo the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing lo make payment therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(c) In the absence of additional coverage under (b) above, the Company's liability shall be limited lo 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;
(d) In no event shall Company be liable or responsible for consequential, Indirect, Incidental, statutory or punitive damage
s 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, fines, penalties, and/or attorneys' fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by
Customer or its agent or representative, which violates any Federal, Slate and/or other laws, and further agrees lo 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 lo 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 lo "Cash/Collect o
n 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 lo all costs of collection, including reasonable attorney's fees and interest at twenty-five
(25%) per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed lo 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 shlp
ment(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 teller of credit al 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) al public or private sale or auction and any net proceeds remaining thereafter shall be refunded lo 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 Slates; 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 lo undertake any pre or
post Customs release action, including, but not limited lo, 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 lo do so in writing by Customer or its agent and Customer agrees lo pay for same, Company shall rely up
on 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 lo 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 lo 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. Company's decision lo waive any provision herein, either by co
nduct or otherwise, shall not be deemed lo be a further or continuing waiver of such provision or lo otherwise waive or invalidate any other provision herein.
21. Governing Law; Consent lo Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according lo
the laws of the Slate of
California without giving consideration to principals of conflict of law.
Customer and Company
(a) Irrevocably consent lo the jurisdiction of the United States District Court and the State courts of California;
(b) agree that any action relating lo the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in person jurisdiction by said courts over it, and
(d) further agree that any action to enforce a judgement may be instituted in any jurisdiction.
Approved by the National Customs Brokers and Forwarders Association of America (Revised 07/09)
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