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 F.C. FELHABER &COMPANY 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, shippers agents, insures
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 form the date of the loss;
(II) For claims arising out of air transportation, within one (2) year
form 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 form
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 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.
7.
Reliance
on Information Furnished.
(a) Customer
acknowledges that it is required to review all documents and declarations prepared and/or filed
with Customs
and 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 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 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 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.
8.
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.
9.
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 cost in connection with
procuring requested insurance.
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) 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 if the shipment or transaction, by
requesting such coverage and agreeing to make payment there for, 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;
(f) In no
event shall Company be liable or responsible for consequential, indirect,
statutory or punitive damages even if it has been put on notice of the
possibility of such damages.
11.
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.
12.
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 others laws, and further agrees to indemnify and hold the
Company harmless against any and all liability, loss, damages, costs, claims
and/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.
13. 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.
15.
General
Lien and Right to Sell Customer's Property.
(a) Company
shall have a general and continuing lien on any 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 exercises 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.
16.
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 is required to maintain by
Statute(s) and/or Regulation(s), but not act as a "record keeper" or
"recordkeeping agent" for Customer.
17.
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.
18.
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 agrees to pay for
same, Company shall rely upon and use the cargo weight supplied by Customer.
19.
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.
20.
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 the Company, the Customer shall pay the
expenses of collection and/or litigation, including a reasonable attorney fee.
21.
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.
22.
Governing
Law; Consent to Jurisdiction and Venue.
23.
These terms and conditions of service and the
relationship of the parties shall be construed according to the laws of the
State of Texas without giving
consideration to principals of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the United States
District Court and the State courts of Texas;
(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 persona, jurisdiction by
said courts over it, and
(d) Further
agree that any action to enforce a judgment may be instituted in any
jurisdiction.