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(NCBFAA
03/24/00R)
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 W. R. Zanes & Co. of La., 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 common carrier;”
(e)
“Third parties” shall include, but not be limited to, the following:
“carriers, truckmen, cartmen, lightermen, forwarders, OTI’s, 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 those claims arising from 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
action(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.
Quotation 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
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 any incorrect or
false statement upon which the Company reasonably relied.
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 (d) 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 (c) 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
Customer’s 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 no 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 fee 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 use the 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 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 State of Louisiana, 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 Louisiana; (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.
(REVISED 02/18/04)
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