TERMS & CONDITIONS
1. Definitions & Abbreviations
2. Customers’ Obligations
3. Limitations Of Liability
4. Exclusions
5. Insurance
6. Bills Of Lading
7. Use Of Other Carriers
8. Incomplete Bills Of Lading
9. Rate Application And Payment Terms
10. TSA Notification
11. Customs Broker’s Terms & Conditions of Service as of February 19, 2015
1. Definitions and Abbreviations
“A4”, “The Carrier”: Atelier 4 Incorporated and its employees.
“Freight”, “Goods”: Items in whole or in part, in packed or unpacked state, that are tendered to A4 for transportation related services, and subject to the rules and limitations set forth below.
“Customer”: Person, parties or organizations who hire and employ A4 to collect and deliver freight and perform transportation related services and who then become liable to remit A4 for charges incurred.
“Shipper”: Person or parties who consign freight to A4 for transport, packing and/or related services.
“Consignee”: Person or parties who receive freight from A4.
“Concerned Parties”: Persons who A4 identify as connected to or involved with a shipment.
“Exclusions”: Conditions and occurrences, as set forth below, that protect and relieve A4 from all liability and responsibility for loss and damage related to freight identified in section 4 of this contract.
“Insurance”: A premium charged to the customer which is based on a value on freight declared by that customer, and subject to all the limitations and exclusions set forth below. Payment of the insurance premium allows the customer to collect the declared value in the event of a loss or mishap that is attributable to events or occurrences during carrier’s possession of freight.
“NVD”: No value declared. Shipper consigns freight for carriage by A4 and does not declare a value nor purchase insurance on that freight; thus releasing the carrier to its minimum level of liability as set forth in section 3.
“BOL”, “Bill of Lading”: A contract representative of an order for A4 to perform transportation, packing and/or related services. This document is a Bill of Lading.
“COD”: Check or cash on delivery. Agreement to pay A4 for services performed at time of delivery.
“COPU”: Check or cash on pick-up. Agreement to pay A4 for services performed at time of pick-up.
“PBS”: Packed by shipper, condition of contents unknown.
“On File”: Statement on face of this BOL that refers to information being kept in writing by A4 management and not specifically listed on the face of the BOL.
“Reasonable”: Accepted as sufficient, rational, normal and common when compared to standard practices and procedures in the shipping industry.
2. Customer’s Obligations
A. Customers and their agents must read and understand the terms of this BOL. Carrier is not responsible for explaining all terms verbally.
B. All terms are binding once shipper, or his employee or agent acting on his behalf sign on reverse. In the event that shipper and his employees are acting as agents for the customer, it is the shipper’s responsibility to notify that customer of all terms as set forth above and below.
C. If A4 is to receive freight that is PBS, it is the shipper’s responsibility to adequately pack and protect the goods to ensure safe transportation. The shipper is also obliged to properly label each item in order to prevent delay or errant dispatch.
D. Shipper and customer are obliged to provide accurate consignee information in order to prevent delay or errant dispatch. Furthermore, shipper and customer are jointly responsible to notify consignee of impending arrival of freight and secure approval for carrier’s delivery.
E. Failure to meet obligations as described may result in additional charges as set forth in section 9.
3. Limitations of Atelier 4 Inc. Liability
A. The maximum liability of Atelier 4 Incorporated for loss or damage by any cause, including negligence, is limited to $0.60 (sixty cents) per pound as determined by actual weight of unwrapped goods. In shipments of multiple items, the $0.60 per pound maximum liability shall apply to each item separately. To determine A4’s maximum liability on shipments released at $0.60 per pound for items being made subject to a claim when A4 is not in physical possession of the freight, dimensional weight shall apply as determined with a cubic factor of 194 cubic inches per one pound. Should any claim in an amount in excess of the foregoing limits of liability be asserted against Atelier 4 Inc by a third party for loss or damage to freight handled by A4, the shipper, consignee, and customer agree to hold A4 harmless as against any such claim. This provision shall be in force irrespective of the cause of such loss or damage, including negligence.
B. A4 shall not be liable for loss or damage due to lack of detailed and specific customer instruction in handling and/or placement of goods. The provisions of this contract also extend to items damaged inside a shipper or consignee’s premises or place of business.
C. Atelier 4 Inc cannot be held responsible and shall remain exempt from liability for physical damage to freight, or loss caused by delay of delivery, when conditions beyond the carrier’s control are encountered during transit. Such conditions are listed below:
Extreme weather and/or changes in temperature, acts of nature and God.
Breakdown or mechanical defect of vehicles or equipment.
Faulty or impassable highway; lack of capacity of roadway structures.
Highway obstruction or closure due to official action.
Civil disobedience, riots, strikes or lockouts; illegal or unlawful actions.
Losses caused by acts of terrorism.
“Loss caused by delay” as stated above is hereby understood to also define and apply to loss of revenue, interest, market, and/or utility. A4 is not bound to transport goods by any particular means, schedule, vehicle, or otherwise than with reasonable dispatch.
D. A4 will be released from liability for freight when directed to accept and load or deliver and unload at unmanned locations where the shipper, consignee, customer or their agents are not present.
E. A4 is only liable to effect inside delivery and will not be liable for unwrapping or unpacking freight unless such requests are ordered in advance and in writing. “Inside delivery” is hereby defined as delivery taking place inside consignee’s location or structure at or near a common point of entry and within a reasonably accessible area.
F. Claims regarding loss or damage of any kind must be made in writing and within seven days of the delivery date of shipment. A4 reserves the right to inspect all items and wrapping materials that are being made subject to a claim. It is the responsibility of the consignee to retain the goods in the original container(s) and/or materials and to make such goods and materials available for inspection by A4, or the carrier’s insurance adjuster in the event of claims on insured shipments. Claims not reported within seven days of the delivery date shall be deemed waived. Claims are also subject to the terms of section 9C.
G. The rights and obligations of the Parties hereunder shall be construed and enforced in accordance with, and shall be governed by, the laws of the State of New York, without regard to its principles of conflicts of laws. Any dispute, claim or controversy arising out of or relating to this Bill of Lading or any other Agreement between the parties, or the breach, termination, enforcement, interpretation or validity thereof, shall be brought in the Supreme Court of the State of New York, County of New York or in the United States District Court for the Southern District of New York. The Parties hereby irrevocably submit to personal jurisdiction in New York and consent to venue in the Courts referenced herein. In any action or proceeding brought by one party as against the other, the Customer specifically waives his/her right to a jury trial and agrees not to interpose any counterclaim on any action commenced by A4. All insurance policies covering Goods that Customer has or shall procure on its own behalf shall specifically contain a waiver of subrogation as and against A4. A4 reserves all of its rights and remedies at law and in equity.
4. Exclusions
A. Customers automatically release the carrier from all liability and responsibility for physical damage, loss, or loss due to delay, for items of freight as listed below:
Items improperly or inadequately packed or mislabeled by the shipper.
Items containing internal damage or concealed breakage; glass, ceramic and stone with existing cracks.
Items of inherent vice or weakness due to poor craftsmanship in fabrication.
Items containing internal mechanics or instrumentation.
Items with waxen, resinous, or viscous surface area, be they in wet, semi-dry, or hardened state.
Damaged or excessively worn antique items in disrepair, items exhibiting prior repairs or breakage.
Uncured and/or not thoroughly dry paintings; uncured and/or unset varnish applied to furniture.
Items with directional orientation to which the shipper does not affix descriptive arrows in advance.
Items shipped unwrapped at the stated request of the shipper.
In relation to subjective terms as used above (“inadequately packed”, “inherent vice”, “excessively worn”, etc.) it is understood that the customer allows and releases A4 to define and interpret these terms as reasonably and commonly acceptable in A4’s industry and as applied against common and previous occurrences in the normal course of packing and shipping.
B. Customer indemnifies A4 against loss to property or personal injury in the event that customer or their agent interferes with or impedes A4 collection, delivery, and/or handling procedures.
C. The carrier will not transport currency, specie, precious stones, jewelry, or negotiable documents at any time. In the event that the carrier is made to transport such items without the carrier’s knowledge or consent, the carrier shall remain at no liability whatsoever for or in connection with the goods.
D. The following types of freight will not be transported by the carrier under any circumstance:
Contraband or illegal substances; firearms or ammunition.
Explosive, chemical, noxious or dangerous goods
Solvents, fuels, or any flammables.
Livestock, plants, biological or hazardous goods.
The act of consigning items of these types to A4 which are willfully disguised by the shipper, acting with or without knowledge of the customer, shall entitle A4 to recover any and all costs for fines, penalties, legal fees, damage to A4 equipment and/or personal injury and compensation to A4 employees. The customer also shall be liable for and indemnify the carrier against all loss or damage to other property or persons caused by said dangerous goods. The carrier is at liberty to dispose of any items consigned with or associated with said dangerous goods at any time and place deemed appropriate by the carrier with disposal charges billable to the customer.
5. Insurance
A. A4 does not automatically provide carriage insurance. Insurance may be purchased at a premium based on the value of goods in transit and added to the cost of the carrier’s services. Values must be submitted in advance and all coverage must be approved by the carrier in advance. Values must appear on the face of this BOL and may only be entered by employees of the carrier. Declared values may not be altered once freight has been received for transport unless the carrier issues written consent for such alteration.
B. A4 reserves the right to inspect all freight under consideration for insured transit. A4 shall be at liberty to effect additional wrapping and packing on such items, even in the event that such services were not originally requested. Additional charges incurred for packing will be the responsibility of the customer. A4 shall only be responsible to inspect for surface conditions and apparent damage. Upon purchase of insurance, all terms & conditions and foregoing exclusions of this contract shall remain in force with the exception of section 3A.
C. Insurance for items that are pre-packaged, pre-sealed, and/or unopened by A4 are carried under Limited Risk. Limited Risk insurance is defined as coverage that is limited to losses incurred by theft or non-delivery of cargo only, with such coverage noted on the face of this BOL. Claims for damage and/or partial delivery are excluded under Limited Risk insurance coverage.
D. A4 shall not be responsible to substantiate values of goods in transit; nor is the carrier responsible to provide proof of origin or authenticate in any way such goods in transit regardless of description listed on the face of this contract. Insurance coverage will be voided should customer over-value goods or otherwise insure goods in transit in excess of their fair market value. The responsibility for providing documented proof of value in a claim shall rest entirely with the customer. By failing to provide such proof that is acceptable to carrier’s underwriter, the customer hereby releases the carrier’s underwriter to adjust claims to any fair value as determined by carrier’s adjuster. Claims for damage or loss of value may not exceed insurance amount purchased as listed on face of this BOL.
E. Groups or multiple items of freight consigned for insured transport, to which the customer assigns only one total insurance value for all items, shall be insured by A4 for Limited Risk on the entire lot only. Loss to any individual items will not be covered under this type of insurance and will be at the risk of the customer. This limitation shall apply whether or not A4 effects any packing to the freight.
F. A4 reserves the right to decline to provide insurance coverage based on A4’s inspection of freight. Any item that is deemed unfit to be covered by A4’s insurance policy will not be extended coverage.
G. Shipments under all-risk insurance coverage must be accepted at time of carrier’s delivery, including inspection of condition. The carrier may at its discretion deny coverage to items made subject to all-risk insurance claims in the event that customer or his agent declines or refuses to have such items unwrapped at time of carrier’s delivery.
6. Bills of Lading
A. Only A4 employees may alter the face of A4 BOLs. In the event that any shipper or consignee alters an A4 BOL by making written additions or omissions, without permission of the carrier, A4 shall be released from providing or completing services related to those additions or omissions. All conditions set forth on this side of the BOL (the reverse) are binding and cannot be modified, altered or waived by any person including A4 employees, save for officers of the carrier, and then only in writing and when signed by such an officer.
B. A4 retains the right to prepare other BOLs and addenda as necessary to sufficiently describe freight in transit. Should the customer, by his requests or actions, instigate the carrier to exchange this BOL for another, the shipper’s signature on the original BOL shall enforce and transfer all conditions, instructions and/or values from the original BOL onto any subsequent BOL bearing the same reference number.
C. If in the opinion or judgment of the carrier it becomes at any stage necessary or desirable to depart from customer’s instructions in relation to freight in transit, then the carrier shall be at liberty to do so. The carrier is also at liberty to execute any new BOL information or instructions as deemed necessary in the interest of safe handling of the freight.
7. Use Of Other Carriers
A. In the event that freight cannot be delivered to its destination, A4 may engage other carriers at A4’s discretion; these services to be engaged after reasonable attempts to verbally contact concerned parties to the shipment. Should another carrier become the consignee, all provisions of this contract terminate at the time of consignee’s receipt and signature. It is understood that A4’s receipt of other carrier’s BOL or receipt ticket constitutes an agreement between A4 and its customer to release freight to that other carrier and for said freight to be then governed by said other carrier’s terms and conditions as set forth on other carrier’s BOL or receipt ticket. A4 shall not be liable to review other carrier’s terms and conditions in full.
B. Customers who order A4 services in advance that are pre-arranged to involve A4 plus other carriers understand that they are also bound by the terms of section 7A.
8. Incomplete Bills Of Lading
A. In the event that freight remains unclaimed after ninety (90) days due to failure or refusal of consignee to receive, or due to inability of A4 to contact concerned parties after reasonable effort, then said freight will be placed at the disposal of A4 for lien or sale in order to recoup transport related charges due, as well as normal and reasonable storage fees and costs of disposal or sale. Prior to such disposal or sale A4 will notify all concerned parties in the shipA. In the event that freight remains unclaimed after ninety (90) days due to failure or refusal of consignee to receive, or due to inability of A4 to contact concerned parties after reasonable effort, then said freight will be placed at the disposal of A4 for lien or sale in order to recoup transport related charges due, as well as normal and reasonable storage fees and costs of disposal or sale. Prior to such disposal or sale A4 will notify all concerned parties in the shipment by US Mail and will enclose complete inventory and written terms of said disposal or sale.
B. Should a customer or concerned party to a shipment redirect freight outside of A4’s route area in mid-transit, or otherwise render freight not deliverable, A4 shall retain the right to create new BOLs and direct freight via A4 or outside carriers as set forth above. A4 also retains the right to deliver freight to a warehouse selected by A4 at the destination city or at an intermediate point, with charges for such warehousing payable by the customer. All additional charges incurred by such actions shall be the responsibility of the customer unless A4 receives written instructions prior to delivery, and A4 approves said instructions in writing.
9. Rate Application And Payment Terms
A. Estimates and quotations are issued on the basis of immediate acceptance; the carrier maintains the right to withdraw or revise any estimate, whether issued verbally or in writing. Should any changes occur in regards to the rate of freight, packing services, insurance premium, or any other charges that are applicable to the goods, then estimates and charges shall be subject to immediate revision accordingly. The carrier may make such revision with or without notification to the customer, even after the carrier has accepted the goods. Conditions which nullify estimates and cause rate adjustment may include, but not be limited to, the following:
Additional volume in the form of larger or heavier freight.
Additional pick-ups, deliveries, packing/unpacking services and/or materials.
Delays due to lack of preparation, waiting time, poor access and/or non-availability of freight.
Delays due to errors or omissions made by the customer or concerned parties.
Delays due to customer or agent’s unwillingness to schedule, or omissions of adequate delivery information.
Additional services requested by concerned parties at either pick-up or delivery.
B. Payment terms are net receipt upon presentation of invoice unless otherwise stated on the face of this BOL. Invoices past due more than thirty days are subject to 1.5% per month service charge. A4 reserves the right to assess fees to the customer for collection procedures on delinquent accounts including, but not limited to, costs for administration, communication, legal procedures and interest on unpaid amounts. It is further understood that customer, shipper, consignee and owner of freight shall remain jointly and severally liable for such charges until payment in full is made to A4 for services rendered.
C. No claims for loss or damage will be entertained until all carrier’s charges have been paid in full. The amount of the claim may not be deducted from the total due and payable charges.
10. TSA Notification
All airfreight cargo is subject to search and inspections as per TSA regulations.
11. Customs Broker’s Terms & Conditions of Service as of February 19, 2015
These terms and conditions of service constitute a legally binding contract between the “Customs Broker” and the “Customer.” In the event the Customs Broker 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). “Customs Broker” shall mean Atelier4, Inc., agents, and/or representatives.
(b). “Customer” shall mean the person for which the Customs Broker 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 carrier”;
(e). “Third parties” shall include, but not be limited to, the following: carriers, truckmen, cartmen, lightermen, forwarders, non-vessel operating carriers, Ocean Transportation Intermediaries (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. Customs Broker as agent. The Customs Broker 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, Customs Broker acts as an independent contractor.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Customs Broker for a potential or actual loss, must be made in writing and received by the Customs Broker, within ninety (90) days of the event giving rise to claim; the failure to give the Customs Broker timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Customs Broker must be filed and properly served on Customs Broker 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 ninety (90) days from the date of liquidation of the entry(s).
(iv). For any and all other claims of any other type, within six months 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, Customs Broker 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 Customs Broker 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 Customs Broker warrants or represents that such person or firm will render such services nor does Customs Broker 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 Customs Broker shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Customs Broker.
5. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Customs Broker to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Customs Broker unless the Customs Broker 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 Customs Broker and the Customer.
6. Reliance On and Use of 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 Customs Broker 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 Customs Broker 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 Customs Broker 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 Customs Broker 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.
(c). Customer waives the requirements of 19 C.F.R. § 111.24 to allow the Customs Broker, its subsidiaries, and related companies may share and have access to information about the Customer and its transactions as maybe necessary to provide Customer with services.
7. Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Customs Broker 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 Customs Broker’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, Customs Broker 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, Customs Broker makes no express or implied warranties in connection with its services.
(b). In connection with all services performed by the Customs Broker, 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 Customs Broker prior to rendering services for the covered transaction(s).
(c). In the absence of additional coverage under (b) above, the Customs Broker’s liability shall be limited to the following:
(i). where the claim arises from activities other than those relating to “Customs Business” as defined in 19 C.F.R. 111.1, fifty dollars (US$50) per shipment or transaction, or
(ii). where the claim arises from activities relating to “Customs Business,” fifty (US$50) per entry or the amount of brokerage fees paid to Customs Broker for the entry, whichever is less.
(iii). In no event shall Customs Broker 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 Customs Broker 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 Customs Broker.
11. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Customs Broker 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, State and/or other laws, and further agrees to indemnify and hold the Customs Broker 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 Customs Broker 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 Customs Broker, it shall give notice in writing to the Customer by mail at its address on file with the Customs Broker.
If Customer seeks to receive delivery of the Cargo prior to the availability and provision of the full set of shipping documents, Customs Broker may agree to do so but is not obligated to do so. If the Customs Broker does release the Cargo, as a condition precedent to and in consideration of Customs Broker releasing any such Cargo without the full set of shipping documents, Customer agrees to defend, indemnify, protect, release, and hold Customs Broker harmless from and against any and all liabilities, damages, fines, penalties, costs, claims, interest and expenses (including costs of defense, settlement, and reasonable legal fees (including attorney's fees). Customer agrees that within three (3) calendar days of Custom Broker's written demand, Customer shall surrender to Customs Broker any and all original bill(s) of lading or air waybills. Customs Broker may immediately undertake, at Customer's sole cost and expense, using counsel selected by Customs Broker in Customs Broker's sole discretion, the defense and/or settlement of any claim, suit, loss, damage, and/or liability that arises out of or is in any way connected to, directly or indirectly, Customs Broker's release of the Cargo. Customer and Principal will reimburse Customs Broker's legal defense, including all attorneys' fees and costs that Customs Broker incurs in its own defense or settlement upon demand.
12. C.O.D. or Cash Collect Shipments. Customs Broker 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. All invoices are due upon presentation to Customer. For any amount unpaid within 30 days from the date of the invoice, the Customs Broker shall be entitled to interest from the date of the invoice until payment at 2% per month or the highest rate allowed by law, whichever is less. In any dispute involving monies owed to Customs Broker, the Customs Broker shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 2% per month or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Customs Broker.
14. General Lien and Right to Sell Customer’s Property.
(a). Customs Broker shall have a general and continuing lien on any and all property of Customer coming into Customs Broker’s actual or constructive possession or control for monies owed to Customs Broker with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both.
(b). Customs Broker 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 Customs Broker’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 Customs Broker, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Customs Broker 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 Customs Broker 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 Customs Broker in writing, Customs Broker 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 Customs Broker prepares and/or issues a bill of lading, Customs Broker 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, Customs Broker shall rely upon and use the cargo weight supplied by Customer. Unless otherwise provided, Where Customs Broker prepares and/or issues a bill of lading, the Customs Broker’s Standard Trading Conditions applicable to the bill of lading shall apply and supplement these terms and conditions of service.
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 Customs Broker; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. Compensation of Customs Broker. The compensation of the Customs Broker 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 Customs Broker to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Customs Broker from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Customs Broker 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 Customs Broker, upon recovery by the Customs Broker, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee. All invoices are due upon presentation to Customer. If your charges are to be billed through a freight forwarder, to be collected by or through the forwarder, Customer waives the confidentiality requirements of 19 C.F.R. §§ 111.24 and 111.36 that the Customs Broker transmit a copy of its bill for service directly to the Customer, and authorizes the Customs Broker to transmit its bill for services and copies of the customs entry documents and related documents through Customer’s forwarder. A copy of the Customs Broker’s brokerage charges is always available upon request.
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. Customs Broker’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 New York without giving consideration to principals of conflict of law. Customer and Customs Broker:
(a). irrevocably consent to the jurisdiction of the United States District Court and the State courts of New York and venue within the Eastern District of New York and/or the Country of Queens;
(b). agree that any action relating to the services performed by Customs Broker, 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.