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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.
- Definitions
- “Company” shall mean
Del-Mar International, Inc., its subsidiaries, related companies,
agents and/or representatives;
- “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;
- “Documentation” shall mean
all information received directly or indirectly from Customer,
whether in paper or electronic form;
- “Ocean Transportation Intermediaries”
(“OTI”) shall include an “ocean freight forwarder”
and a “non-vessel operating carrier”:
- “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”.
- 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.
- Limitation of Actions
- 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.
- All suits against Company must be filed
and properly served on Company as follows:
- For claims arising out
of ocean transportation, within one (1) year from the
date of the loss;
- For claims arising out of air transportation,
within two (2) years from the date of the loss;
- 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);
- For any and all other claims of
any other type, within two (2) years from the date of
the loss or damage.
- 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.
- 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.
- Reliance On Information Furnished
- 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;
- 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.
- 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.
- 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.
- Disclaimers; Limitation of Liability
- Except as specifically set forth herein,
Company makes no express or implied warranties in connection
with its services;
- 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;
- 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).
- In the absence of additional coverage
under (b) above, the Company’s liability shall be limited
to the following:
- where the claim arises
from activities other than those relating to customs
brokerage, $50.00 per shipment or transaction, or
- 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;
- 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.
- Advancing Money
All charges must be paid bv 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.
- 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 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 Sees, 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.
- 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 not liability if the bank or consignee
refuses to pay for the shipment.
- 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 15%
per annum or the highest rate allowed by law, whichever is less,
unless a lower amount is agreed to by Company.
- General Lien and Right To Sell Customer’s
Property
- 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;
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 state without giving consideration
to principals of conflict of law. Customer and Company
- irrevocably consent to the
jurisdiction of the United States District Court and the
State courts of state;
- agree that any action relating to the
services performed by Company, shall only be brought in
said courts;
- consent to the exercise of in personam
jurisdiction by said courts over it, and
- further agree that any action to enforce
a judgement may be instituted in any jurisdiction.
Courtesy of NCBFAA
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