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 Daniel B. Hastings, 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 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 sixty (60) 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
sixty (60) days from the date of liquidation of the entry(s);
(iv) For any and all
other claims of any other type, within one (1) year 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 U.S. Customs & 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 or other submission 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 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 or
its 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 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.
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) 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).
(c) 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, $25.00
per shipment or transaction, or
(ii) where the claim
arises from activities relating to "Customs business," $25.00 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 damages, even if it has been put on notice of the possibility of such
damages, or for the acts of third parties.
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
customer’s 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, State
and/or other laws, and further agrees to 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
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 incurred, including reasonable attorney's fees and interest at 18%
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 incurred, 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 to waive any
provision herein, either by conduct or otherwise, shall not be deemed to be a
further or continuing waiver of such provision or to otherwise waive or
invalidate any other provision herein.
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 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 personam jurisdiction by said courts over
it, and
(d)
further agree that any action to enforce a judgment may be instituted in any
jurisdiction.
©Approved by the National Customs Brokers and Forwarders Association of America, Inc. (Revised 07/09)