GENERAL TERMS & CONDITIONS

All services, except those as a motor carrier, air carrier, rail carrier, non-vessel-operating common carrier or other carrier, or warehouse operator, performed by the legal entity named on the front of this document (hereinafter called the “Company”) for the Customer, which term shall include the person or entity for which services are performed, its agents and/or representatives, including, but not limited to, shippers, exporters, importers, senders, receivers, owners, consignors, consignees, carriers, secured parties, warehousemen, insurers and underwriters, and transferors or transferee of shipments, are subject to the following terms and conditions:

 

1. APPLICATION OF TERMS AND CONDITIONS.

The Company and the Customer agree that these terms and conditions of service constitute a legally binding contract. The Customer acknowledges and agrees that it is responsible to provide notice and a copy of these terms and conditions to all its agents or representatives. The Company does not accept any terms or conditions contained in the Customer’s service contract or agreement with the Company, correspondence of any kind, invoices, or any other written or unwritten material and, in the event of conflict between the Company’s terms and conditions herein and the Customer’s terms and conditions, if any, the terms and conditions of the Company take precedence and control.

 

2. STANDING OF COMPANY.

The Company acts as an independent contractor, except with respect to the performance of the following services where Company acts as an “agent” of Customer: entry and release of goods; post-entry services; the securing of export licenses; export documentation filing for the Customer; other dealings with government agencies on behalf of Customer.

 

3. PERFORMANCE OF SERVICES.

Unless the Company carries, stores or otherwise physically handles the goods and loss, damage or expense occur during such activity, the Company assumes no liability as a carrier and shall not be held responsible for any loss, damage or expense to the goods to be forwarded or imported except as provided in paragraph 12 and subject to the limitations of paragraph 13 below, but undertakes only to use reasonable care in the selection of carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others to whom it may entrust the goods for carriage, transportation, forwarding, cartage, handling, storage, delivery or otherwise. When the Company carries, stores or otherwise physically handles the goods, it does so subject to the limitation of liability set forth in paragraph 12 below unless a separate air bill of lading or waybill, ocean bill of lading, sea waybill, bill of lading, warehouse receipt or other contract is issued by the Company, in which event the terms and conditions thereof shall govern.

 

4. CHOOSING AGENTS; LIABILITY LIMITATIONS OF THIRD PARTIES.

The Company is authorized to select and engage carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others, as required, to forward, carry, transport, cart, handle, store, deal with and deliver the goods, all of whom shall be considered as the agents of the Customer, and the goods may be entrusted to such agents subject to all terms and conditions as to limitation of liability for carriers, forwarders, customs brokers, agents, warehousemen and others. The Company shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by the Company to carry, transport, forward, cart, handle, store, deliver, enter and clear, or render other services with respect to such goods. If a person or entity hired by Company is determined to be the agent of the Company, the agent’s liability is ascertained according to the provisions of these terms and conditions, particularly as set forth in paragraphs 10 and 11 below, as if they were a party hereto.

 

5. REFERRAL TO ANOTHER BROKER.

The Customer acknowledges and agrees that the Company may, in its sole discretion, refer the Customer’s shipment to another broker to arrange transportation services for the Customer and/or to select a carrier to transport the Customer’s shipment. The Company shall not be responsible for the acts or omissions of any broker to whom a shipment is referred or of any third-party selected by such broker in connection with the transportation of the Customer’s shipment. The Customer acknowledges and agrees that any services provided by a broker to whom the Customer’s shipment is referred may be subject to such broker’s separate terms and conditions.

 

6. CHOOSING MODES, MEANS, METHODS, ROUTES.

Unless express instructions in writing are received from the Customer and accepted by the Company prior to shipment, the Company has complete freedom in choosing the modes, means, methods, route and procedure to be followed in the carriage, transportation, forwarding, cartage, handling, storage and delivery of the goods.

 

7. QUOTATIONS NOT BINDING.

Quotations as to fees, rates of taxes, duty and tariffs, freight charges, insurance costs or other fees, rates, costs and charges given by the Company to the Customer are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon the Company unless the Company in writing specifically undertakes the transportation or handling of the shipment at a specific rate.

 

8. DUTY TO FURNISH INFORMATION.

The Customer acknowledges and agrees to provide the Company, in writing and in a timely manner, any and all necessary instructions, information, and/or documents required for the execution of the Company’s services, taking into account the nature of the services to be performed, the nature of the goods, and any constraints related to the services and/or goods including any precise operations to be performed in relation to the goods; the nature, weight, dimensions, and position of the center of gravity of the goods; the location and use of anchoring points; and/or the means of access to the sites or premises in which the service(s) must be performed. In particular, the Customer acknowledges and agrees it is required to inform the Company about the exact nature and specificity of the goods when the goods require special arrangements with regard to the value, fragility, or dangerous nature of the goods. Furthermore, the Customer expressly undertakes not to entrust the Company and/or its subcontractors with illegal, prohibited, or restricted goods. If the Customer fails to furnish in a timely manner such instructions, information or documents, in whole or in part, as may be required for the execution of the Company’s services, or if the information or documents furnished are inaccurate, incomplete or otherwise insufficient, the Company shall be obligated only to use the best judgment in connection with the services and in no instance shall be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete, omitted or otherwise insufficient information or document pertains. The Customer shall be bound by and warrants the accuracy, exclusivity, validity, and authenticity of all documents and information furnished to the Company by the Customer or its agent and the Customer agrees to indemnify and hold the Company harmless against any duties, taxes, costs, penalties, fines or expenses, including, but not limited, to attorneys’ fees, costs, expenses, additional assessments by any governmental or quasi-governmental agency, or the detention, blocking or forfeiture of the goods resulting from any inaccuracy, incomplete statement, omission or any failure to make timely presentation of required instructions, documents or information, even if not due to any negligence of the Customer.

 

9. CUSTOMER OBLIGATIONS.

The Customer shall provide written notice to the Company of the precise nature of the services to be provided by the Company. The Customer warrants that any goods tendered to the Company or its agent or subcontractors are suitable and capable of withstanding the execution of the Company’s services. The Customer acknowledges and agrees that it is solely responsible for ensuring the goods are packaged, marked, labeled, sealed, lashed, or braced: i) to withstand the execution of the services, as well as any incidental handling that may occur during execution of the services; ii) to allow for immediate and unambiguous identification of the sender, recipient, place of delivery, and nature of the goods; and/or iii) in accordance with all applicable federal, state, and local laws and regulations. The Customer warrants that any full trucks, semi-trailers, mobile boxes, or shipping containers loaded by the Customer will be sealed prior to commencement of the services. Unless otherwise agreed, the Customer shall be responsible to carry out the prior inspection of the ground and subsoil (pressure, condition, resistance, composition, etc.) for which they remain solely responsible. The Customer acknowledges and agrees that any goods tendered to the Company or its agent or subcontractors are not dangerous or harmful to the Company’s or its agents or subcontractors’ personnel, the environment, or other transported or stored goods, vehicles, or third parties. The Customer shall be bound by and warrants the suitability of goods tendered to the Company or its agents or subcontractors and shall be solely responsible for all consequences resulting from: i) an inadequacy of the entrusted goods with the execution of the ordered services; ii) an absence, insufficiency, defectiveness, or unsuitability of the conditioning, packaging, marking or labeling, lashing, securing, and bracing of the goods; and/or iii) any oral instructions not confirmed in writing. The Customer agrees to indemnify and hold the Company harmless against any duties, taxes, costs, penalties, fines or expenses including, but not limited to, attorneys’ fees, costs, expenses, additional assessments by any governmental or quasi-governmental agency, or the detention, blocking or forfeiture of the goods resulting from any absence, insufficiency, defectiveness, or unsuitability of the packaging, marking, labeling, sealing, lashing, or bracing of goods tendered to the Company or its agents or subcontractors. If the Company uses equipment belonging to the Customer for the execution of its services, the Customer remains solely responsible for carrying out the periodic general checks of the said equipment, as well as its good working condition and its ability to withstand the operations for which it will be used. The Company undertakes to promptly report to the client any defect or anomaly found on the equipment made available to it. The Customer alone bears, without recourse against the Company, and will indemnify the Company against all consequences, including recourse and claims from all third parties, resulting directly or indirectly from a defect or a poor condition of the equipment made available to the Company for the execution of its services.

10. DECLARING HIGHER VALUATION.

Inasmuch as the carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others to whom the goods may be entrusted (collectively, the “Third Parties”) usually limit their liability for loss or damage unless a higher value is declared and the charge based on such higher value is agreed to by any such Third Party, unless the Company receives specific written instructions from the Customer prior to shipment to pay such higher charges based on valuation and any such Third Party accepts such higher declared value, any valuation placed by the Customer on the goods shall be considered solely for export or customs purposes and the goods shall be delivered to the Third Party subject to the limitations of liability set forth herein in paragraphs 12 and 13 below with respect to any claim against the Company and subject to the provisions of paragraph 4 above.

 

11. INSURANCE.

If the Company’s services include temporary storage or handling of the Customer’s goods, the Company will make reasonable efforts to effect marine, fire, theft and other insurance upon the goods only after specific written instructions have been received and accepted by the Company in sufficient time prior to the Company providing the services and the Customer states specifically the kind and amount of insurance to be placed. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy and instructs the Company to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by the Company. Any insurance placed shall be governed by the certificate or policy of insurance issued and will only be effective when accepted by such insurance companies or underwriters. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the certificate or policy may not be at the same rates as that charged or paid to the Company by the Customer or that the shipment was insured under a policy in the name of the Company. Customer agrees to pay all insurance premiums and any costs of the Company for arranging the same. If for any reason the goods are stored or held in a warehouse or elsewhere, the same will not be covered by any insurance unless the Company receives and accepts written instructions from the Customer prior to such storage or holding. Unless specifically agreed in writing, the Company assumes no responsibility to effect insurance on services undertaken by a subcontractor. The Company shall have no obligation to procure insurance on behalf of Customer except as specifically provided for herein and accepted by the Company. The Customer further acknowledges and agrees that any insurance placed by the Company on behalf of the Customer will exclude any and all coverage for cash, live animals, negotiable papers, securities, cigarettes and other tobacco products, computer memory modules and cards, fine art with a value greater than $10,000 per piece, flowers, jewelry, laptop computers, tablet computers and similar devices, mobile/smart phones and watches, pharmaceutical drugs, plants, precious stones and metals, and server racks (when containing computers, servers or electronic components) and that the Customer shall be solely responsible for any damage or loss to such goods and/or claims against the Company from any third-parties concerning or arising out of such goods.

 

12. LIMITATION OF LIABILITY FOR LOSS; WARRANTY DISCLAIMER.

(a) The Customer agrees that the Company shall only be liable for its negligent acts that are the direct and proximate cause of injury to the Customer, including any loss of or damage to the goods. Subject to any applicable law, statute or regulation, such liability shall be limited as follows: (i) If the Customer declares a value in advance of the transit and pays applicable additional charges, the Company’s liability shall be the lesser of the amount of any damage actually sustained or the declared value; (ii) If the Customer does not declare a value or pay applicable additional charges, the Company’s liability shall be the lesser of: (A) the amount of any damage actually sustained or (B) US$50 or the weight of the actual piece count lost or damaged in pounds multiplied by US$0.50, whichever is greater; (iii) the Company’s liability for any operation in customs, tax, and/or indirect contributions matters and including all related acts and any consulting service, whether carried out by its subcontractors, may not exceed US$5,000 per customs declaration, without being able to exceed US$50,000 per year of the occurrence and, in any event, US$100,000 per occurrence; (iv) when no other limitation of liability is explicitly stated here or otherwise applicable, the Company’s liability shall be limited to the price of the services contract but cannot exceed US$100,000; (v) in no event shall the Company’s liability exceed US$ 155,000 for any single occurrence.

(b) THE CUSTOMER AGREES THAT THE COMPANY SHALL, IN NO EVENT, BE LIABLE FOR ANY DIRECT OR INDIRECT SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF MARKET, LOSS OF USE, OR PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER OR HOWSOEVER CAUSED, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

(c) Except as specifically set forth herein, the Company makes no express or implied warranties in connection with its services.

(d) The Company does not warrant or undertake that the goods or any documents relating thereto shall arrive or be available at any point or place on any particular date or at any particular time (whether advertised or not) to meet any particular requirement of the Customer or any market or use. The Company shall, in no event, be liable for any delay whatsoever or however caused and shall in no circumstances be liable for any losses, damages, direct or indirect special or consequential loss or damages, indirect damages, incidental damages, loss of profit, loss of revenue, loss of market, loss of contract or loss of use directly or indirectly caused by or resulting from delay. If the Company should nevertheless be held liable for any loss or damage caused by or resulting from delay, such liability shall, in no event, exceed the fees and charges paid to Company for its services.

(e)  Other limits of liability may apply to motor vehicle carriage, international air carriage, rail carriage, ocean carriage, warehousing, customs entry and other services. These liability limits can be found in the Company’s terms and conditions for these services located on the Company’s website. (f) If the Company performs handling or weighing services, it shall not be responsible for damages resulting from: (1) an error or a design defect in the studies carried out by the Customer; (2) a defect in the handled object; (3) a defect, error, omission, or ambiguity in the documents submitted to the Company; (4) the adequacy of any equipment used at the Customer’s instructions; (5) a defect in packaging, conditioning, or protecting the goods entrusted to the Company, particularly due to humidity, condensation, atmospheric events, dustfalls or foreign bodies; or (6) an interruption of the services for climatic reasons. It is expressly agreed that a tolerance of two percent (2%) is allowed between the weight of the goods as determined by the weighing operation carried out by the Company and the actual weight of the goods at each weighing point. Any weight differences of less than or equal to two percent (2%) cannot give rise to a claim against the Company.

 

13. FORCE MAJEURE.

The Company shall not be liable for loss, damage, expense, delay or nonperformance directly or indirectly caused by or resulting from, in whole or in part, circumstances beyond the control of the Company (i.e., force majeure), including without limitation: (a) acts of God, including flood, earthquake, storm, hurricane, power failure, other natural disaster, pandemic or epidemic; (b) war, hijacking, robbery, theft, civil commotions or riots, or terrorist activities; (c) incidents or deteriorations to means of transportation, cyberattacks, ransomware, or major outages or telecommunication networks; (d) embargoes, acts by any governmental or quasi-governmental authority including denial, cancellation, or revocation of any import, export or other necessary license; (e) defects, nature or inherent vice of the goods, dampness of atmosphere (heat or cold), rusting, shrinkage, evaporation, ordinary loss of weight or volume, ordinary leakage, contamination, change in flavor, color, finish or texture, spoilage, freezing and/or extremes of temperature to fresh/frozen foods or perishable commodities; or (f) strikes, lockouts, slowdowns or other labor conflicts. Any additional costs or expenses incurred by the Company as a result of a force majeure event to preserve, store, or protect the goods shall be for the Customer’s account. The Company shall use reasonable efforts to notify the Customer of the occurrence of a force majeure event. The Company’s obligations shall be suspended for the duration of any force majeure event and, if the event continues for more than thirty (30) days, the Company may terminate the affected service(s).

 

14. LIMITATION OF ACTIONS.

(a) It is the responsibility of the Customer to note in writing any loss, damage or exception to the goods at the time of delivery. Receipt by the person entitled to delivery of the goods without complaint is prima facie evidence that the same have been delivered in good condition and in accordance with the Company’s services.

(b) Subject to any applicable law, statute or regulation, the Company shall not be liable under paragraph 11 for any claims for: (i) damage or loss discovered by the Customer after delivery and after a clean receipt has been given to the Company, unless a claim is reported in writing to the Company within 15 days after delivery of the goods with privilege to the Company to inspect the goods and their container(s), packaging and packing material within 15 days after receipt of such notice; or (ii) damage or loss in all other circumstances, unless made in writing and received by the Company within 120 days after the date of acceptance of the services by the Company.

(c) No claims with respect to a shipment, any part of which is delivered to the consignee, will be entertained until all transportation charges have been paid.

(d) Subject to any applicable law, statute or regulation, all suits against the Company must be filed and properly served on the Company as follows: (i) for claims arising out of ocean transportation, within one year from the date of delivery or the date the goods should have been delivered; (ii) for claims arising out of air transportation, within two years from the date of the loss; (iii) for claims arising out of preparation and/or submission of an import entry, within seventy-five days from the date of liquidation of the entry; or (iv) for any and all other claims of any other type, within two years from the date of the loss or damage.

(e) Claims for overcharges or duplicate billings must be made in writing and received by Company within 180 days from the acceptance date of the services by the Company or they are time-barred. Lawsuits for overcharges or duplicate billings must be filed no later than one year from the acceptance date of the services by the Company.

 

15. PAYMENT CONDITIONS; ADVANCING MONEY.

(a) All charges for the Company’s services are due and payable upon receipt of the Company’s invoice unless a written credit agreement has been established between the Company and the Customer. In its sole discretion, the Company may require pre-payment of any costs or charges prior to execution of the Company’s services. Any invoice not paid when due shall automatically result in a late payment fee equivalent to 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less, calculated from the day after payment was due. Any delay or failure to pay any invoice shall justify the Company modifying or revoking any credit or payment terms previously agreed upon between the Company and the Customer. The Company retains the right to apply any partial payment first to accrued interest and collection costs, then to the principal balance of any outstanding monies owed to the Company.

(b) The Company shall not be obliged to incur any expense, guarantee any payment or advance any money in connection with the carriage, transportation, forwarding, cartage, handling, storage, delivery, importing, exporting, entering, insuring, storing, packing or coopering of the goods, unless monies sufficient to satisfy such expense, payment or advance is previously provided to the Company by the Customer on demand. The Company shall not be under any obligation to incur, pay or advance freight charges, customs taxes, duties or tariffs, insurance premiums, or other fees or charges owed to third parties by the Customer for any services, nor shall any payment or advance by the Company be construed as a waiver of the provisions hereof. In the event that the Company should pay or advance any such monies to any person or entity that subsequently refunds all or any portion thereof to the Customer and the Customer, at the time of the refund, has not reimbursed the Company for those monies, then any portion of the refund corresponding to such unpaid, advanced monies, and any interest paid thereon, shall be deemed the exclusive property of the Company to which the Customer shall have no claim, and which the Customer shall return to the Company immediately upon receipt.

 

16. INDEMNIFICATION FOR FREIGHT, DUTIES, ETC.

In the event that a carrier, warehousemen, terminal,  other person or any governmental agency makes a claim or institutes legal action against the Company for freight, storage charges, detention, demurrage, duties, taxes, tariffs, fines, penalties, liquidated damages or other money due in connection with or arising out of a shipment of goods of the Customer, the Customer agrees to indemnify and hold the Company harmless for any amount the Company may be required to pay such carrier, warehousemen, terminal, other person or governmental agency, plus all reasonable expenses, including, but not limited, to attorneys’ fees, costs and expenses, incurred by the Company in connection with or arising out of responding to and defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the obligation and liability of the Customer to the Company to pay and indemnify all freight, storage charges, detention, demurrage, duties, taxes, tariffs, fines, penalties, liquidated damages or other money due promptly on demand.

 

17. O.D. SHIPMENTS.

Goods received with Customer’s or other person’s instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise or to collect on any specified terms by time drafts or otherwise are accepted by the Company only upon the express understanding that it will exercise reasonable care regarding such instructions and the Company shall not be responsible for any refusal by a bank or consignee to pay for a shipment or for any act, omission, default, suspension, insolvency, want of care, negligence or fault of any bank, consignee, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection. A C.O.D. instruction does not constitute a declaration of value and shall not increase the Company’s liability for loss or damage. Unless otherwise instructed in writing by the Customer and accepted by the Company, the Company and its agents may accept a consignee’s check (including personal or company checks) and shall have no liability for the non-payment or dishonor of such instruments.

 

18. GENERAL LIEN ON GOODS AND PROPERTY.

The Company shall have a general and continuing lien on any and all goods and other property (and documents relating thereto) of the Customer, either in the Company’s actual or constructive possession, custody or control or en route, for all claims for monies owed to Company, including, without limitation, charges, expenses or advances incurred by the Company in connection with or arising out of any shipments of the Customer, including prior shipments. 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 ongoing storage or other charges; Customer shall notify all parties having an interest in the shipment of Company’s rights and/or the exercise of such lien. Unless, within thirty days after receiving notice of the lien, Customer posts cash or a letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110 percent of the value of the total amount due in favor of the Company guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, the Company may sell at public or private sale, in accordance with governing law the goods or other property, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the monies owed to the Company. Any surplus from such sale shall be transmitted to the Customer, and the Customer shall be liable for any deficiency in the sale including, but not limited to, all costs or expenses of recovery, reasonable attorneys’ fees, and any costs associated with the storage, handling, or disposal of the goods.

 

19. COMPENSATION OF COMPANY.

The compensation of the Company for its services shall be included with and is in addition to the rates, charges, and surcharges of all carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others selected by the Company to carry, transport, forward, cart, handle, store, deliver, enter and clear, insure or render other services with respect to the goods and such compensation shall be exclusive of any brokerage, commissions, dividends or other revenue received by the Company from such third parties in connection with the shipment. Unless otherwise agreed, the compensation of the Company shall exclude consumables such as tolls, marking, and other costs resulting from site visits, authorization requests, requests for moving structures, immobilization, or postponement of any kind and such expenses shall be subject to markup for administrative and handling fees. Any modification to the services performed by the Company before or during their execution, whether at the Customer’s initiative or due to external circumstances, including but not limited to, any change of itinerary, immobilization or the vehicle and/or crew, will result in a price adjustment. In any referral for collection or action against the Customer for monies due to the Company, including, but not limited to, any action for the enforcement of any provision of the Master Customs Power of Attorney between the Customer and the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including reasonable attorneys’ fees, interests, costs and expenses.

 

20. MODIFICATION OF SERVICES.

(a) The Customer reserves the right to modify or alter the services of the Company upon written notice to the Company. If the Customer modifies or alters the services performed by the Company after the services have begun, the Customer shall be solely responsible for all costs incurred by the Company due to such modification or alteration. The Company shall be responsible for costs caused by modifications or alterations to the services that result from its own actions.

(b) Unless specific conditions are agreed upon, if the Customer modifies or alters the services of the Company or fails to provide goods to the Company less than 30 calendar days before the scheduled start of the services, the Customer agrees to pay the Company, in addition to the reimbursement of all costs borne by the Company and resulting from the modification of the services, a lump sum equal to: i) 20% of the total agreed-upon price where written notice is received by the Company between 15-29 calendar days before the scheduled start of the services; ii) 40% of the total agreed-upon price where written notice is received by the Company between 8-14 calendar days before the scheduled start of the services; iii) 60% of the total agreed-upon price where written notice is received by the Company between 3-7 calendar days before the scheduled start of the services; or iv) 90% of the total agreed-upon price where written notice is received by the Company less than 3 calendar days before the scheduled start of the services. If the Customer cancels the services of the Company, in part or whole, less than 30 calendar days before the scheduled start date, the Customer agrees to pay the Company, in addition to the reimbursement of all costs borne by the Company and resulting from the cancellation of the services, a lump sum equal to: i) 30% of the total agreed-upon price where written notice is received by the Company between 15-29 calendar days before the scheduled start of the services; ii) 50% of the total agreed-upon price where written notice is received by the Company between 8-14 calendar days before the scheduled start of the services; iii) 70% of the total agreed-upon price where written notice is received by the Company between 3-7 calendar days before the scheduled start of the services; or iv) 100% of the total agreed-upon price where written notice is received by the Company less than 3 calendar days before the scheduled start of the services.

(c) If the transportation of goods is prevented or temporarily interrupted, or if, for any reason, the execution of the transportation or the delivery of goods is or becomes impossible under the initially planned conditions, the Company will request instructions from the Customer. The implementation of these instructions is subject to obtaining the necessary administrative authorizations. If the Company has been unable to obtain timely instructions from the Customer, the Company will take the measures that seem best in the Customer’s interest for the preservation of the goods or their transportation by other routes or means. In the absence of a response from the Customer within a maximum period of fifteen calendar days from the date of the first request for instructions from the Company, the services contract shall be automatically terminated, and the goods are considered abandoned by the Customer to the Company, who shall have the right to perform any act of disposal of the goods. Unless the impediment, interruption, or prevention to delivering the goods is attributable to the Company, the Customer shall reimburse the Company for any and all expenses or costs arising from the instructions given by the Customer or, if applicable, the measures taken in the best interest of the Customer to preserve the goods or completed the transportation, including vehicle immobilization costs, detention costs, demurrage, and/or crew-related costs, in addition to the agreed-upon services price. In the event of a definitive impediment due to force majeure, the Company is entitled to the part of the transport price corresponding to the journey made up to the transport stop, as well as all costs incurred for the performance of the services.

 

 

21. EQUIPMENT RENTAL.

Upon the Customer’s request, the Company performs equipment rental services through its own means or through its agents or subcontractors. The Customer assumes custody and full responsibility for the equipment from the date of its provision until its actual return to the Company. The Customer will be responsible for damage suffered by the equipment and damage caused to third parties due to the use of the equipment, except for damage resulting from a fortuitous event or force majeure or unless they prove that the damage does not result from a fault or a breach attributable to them or to one of their subcontractors. The Company cannot be held responsible for damages resulting from a specific defect or a design or manufacturing defect of the equipment made available to the Customer. It is expressly agreed that any claim or liability action concerning such defects or flaws must be brought directly by the Customer against the manufacturer of the said equipment. The Company does not guarantee in any case the equipment supplied against hidden or apparent defects. Furthermore, the Company cannot be held responsible for damages of any nature, resulting from a use of the equipment by the Customer that is not in accordance with its normal purpose or from any misuse, negligence, or lack of maintenance attributable to the Customer or their employees during the rental period, provided that the rented equipment is in good working condition and up-to-date with its regulatory checks at the time it is made available by the Company.

 

22. ENGINEERING SERVICES.

Any engineering work and technical studies carried out by the Company are based on the documents and information transmitted in a timely manner by the Customer, these elements serving as the basis for the execution of said services and for which the Customer is solely responsible. The services performed by the Company comply with the instructions and specifications communicated by the Customer, including the dimensions, weight, and center of gravity of the goods. The Customer remains responsible for the structural integrity of their part, considering the induced loads, particularly by transport. The Customer is required to check and approve all work or technical studies carried out by the Company, particularly concerning the support and lashing points of the goods for their handling and/or transport. The Company is not required to follow instructions that would lead the Company to act in contradiction with professional standards or outside its area of competence. The services are also based on the current state of knowledge, technique, and engineering concepts of the Company. If the Company designs a part specifically for the Customer’s needs and entrusts its production to a third-party manufacturer, it is expressly agreed that the Company cannot be held liable for damages resulting from a specific defect, a design defect, a manufacturing defect, or the materials used by the manufacturer. The Customer acknowledges that the manufacturing is carried out by an independent third party and accepts that any claim or liability action concerning such defects or flaws must be brought directly by the client against the manufacturer, the Company offering no guarantee as to the absence of specific defects or manufacturing defects of the part thus produced by a third party.

 

23. PACKAGING, LABELING SERVICES.

Upon request by the Customer, the Company may perform packaging and/or labeling services through its own means or through an agent or subcontractor. The Customer acknowledges and agrees the Company cannot be held liable for: (i) all risks resulting from the non-conformity of the product with the specifications of the sales contract; (ii) all risks of rejection by any authorities of the country of import; (iii) all damages resulting from an error in the labeling of the packaging allowing the marketing of the product; (iv) all risks resulting from the manufacturing of the container/material allowing the packaging of the goods; (v) all damages resulting from erroneous and/or incomplete information from the client; or (vi) all damages resulting from an unpredictable and sudden change in any applicable laws, rules, or regulations of the country of importation.

 

24. NO RESPONSIBILITY FOR GOVERNMENTAL REQUIREMENTS.

It is the responsibility of the Customer to know and comply with the requirements, laws, statutes and regulations of any international, national, federal, state and/or local governmental or other agency pertaining in any way to the goods and shipment, including, but not limited to, requirements, laws, statutes and regulations pertaining to marking, classification, licensing and transporting hazardous or dangerous goods, export controls, and any other transporting, importing, or exporting requirements. The Company shall not be responsible for action taken or fines or penalties assessed by any governmental or other agency against the shipment because of the failure of the Customer to comply with such requirements, laws, statutes and regulations or with a notification issued to the Customer by any such agency.

 

25. INDEMNITY AGAINST LIABILITY ARISING FROM THE IMPORTATION OF GOODS.

The Customer agrees to indemnify and hold the Company harmless from any and all claims and/or liability in connection with or arising out of the importation of goods and/or any conduct of the Customer that violates any international, national, federal, state and/or other requirement, law, statute or regulation and further agrees to indemnify and hold the Company harmless against any and all claims, liability, loss, damages, costs and expenses, including, but not limited, to reasonable attorney’s fees, costs and expenses that the Company may incur, suffer or be required to pay by reason of such claims and/or liability. If any claim, suit or proceeding is brought against the Company, the Company shall give notice in writing to the Customer by mail at its address on file with the Company. Upon receipt of such notice, the Customer, at its own expense and at the Company’s discretion, in cooperation with the Company’s designated counsel, shall defend against such claim and suit and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the Company.

 

26. NO DUTY TO MAINTAIN RECORDS FOR THE CUSTOMER.

The Customer acknowledges that, pursuant to Sections 508 and 509 of the Tariff Act of 1930, as amended, (19 U.S.C. §§ 1508 and 1509), it has the duty and is solely liable for maintaining all records required under the customs and/or other laws, statutes and regulations of the United States; unless otherwise agreed to in writing by the Company, the Company shall only keep such records that it is required to maintain by law, statute and regulations, but not as a “recordkeeper” for or “record-keeping agent” of the Customer.

 

27. PREPARATION AND ISSUANCE OF BILLS OF LADING AND WAYBILLS.

Where the Company prepares and/or issues a bill of lading or waybill, the Company shall be under no obligation to specify thereupon the number of packages, cartons. Pieces, etc. Unless specifically requested in writing by the Customer or its agent to weigh the goods prior to shipment and the Customer agrees to pay for same, the Company shall be entitled to rely upon and use the cargo weight supplied by Customer.

 

28. SHIPMENT SCREENING.

All shipments may, at Company’s option or as required by government law, statute or regulation, be screened and/or opened and inspected without liability to Company. The Customer consents to such screening and inspection and understands that this document containing its consent shall be maintained by Company and may be made available to governmental agencies upon request.

 

29. CARMACK AMENDMENT WAIVER.

If the Carmack Amendment (“Carmack”) to the Interstate Commerce Act (49 U.S.C. §§ 14706 et. Seq.) is compulsorily applicable to any stage of carriage or transportation, then these terms and conditions shall be considered an agreement entered into pursuant to 49 U.S.C. § 14101(b) and the Customer hereby expressly waives any and all rights and remedies under Carmack to the extent any term, condition, limitation or other provision in these terms and conditions differ from Carmack. In the event Carmack applies, the Customer must file a written notice of claim for loss or damage no later than nine months after the goods are delivered and the Customer must file a lawsuit no later than two years from the date the Company denies the claim.

 

30. TERMINATION.

Either party may terminate this agreement immediately upon written notice to the other party if the other party materially breaches any of the terms and conditions herein and such breach is not cured within fifteen (15) days after receipt of written notice identifying the breach. Receiving written notice of a breach shall not relieve the Customer of its obligation to pay any monies owed pursuant to these terms and conditions. Upon termination, all outstanding invoices, including those not yet due, shall become immediately payable and the Company shall have no obligation to release, return, or facilitate the release or return of the Customer’s goods until all outstanding monies owed hereunder have been paid in full. The Company’s general lien set forth in Paragraph 18 herein shall remain in full force and effect after termination of this agreement.

 

 

31. NO MODIFICATION OR AMENDMENT UNLESS WRITTEN.

These terms and conditions may only be modified, altered or amended in a writing signed by both the Customer and the Company. Any attempt to unilaterally modify, alter or amend these terms and conditions shall be null and void.

 

32. SEVERABILITY AND WAIVER.

These terms and conditions are several and separable. If any term or condition is held to be invalid, null and void, or unenforceable, such invalidity, nullity or unenforceability shall attach only to such provision and shall not affect in any way the validity or enforceability of any other term or condition. The services shall be performed as if such invalid, null and void, or unenforceable term or condition was not contained herein. The Company’s failure to require strict compliance with any provision of these terms and conditions shall not constitute a waiver or estoppels to later demand strict compliance with that or any other provision(s).

 

33. CONFIDENTIALITY

Except where disclosure may be required pursuant to a court order, government requirement, or other legal requirement, Customer and Company agree to treat as strictly confidential all documents, materials, tools, or information collected, and more generally, all matters or facts whatsoever that have been or will be brought to their attention, including but not limited to studies, plans, concepts, and know-how, transmitted for or on the occasion of their relationship. Both parties shall take all necessary measures to ensure that this confidentiality is maintained by their personnel. This obligation of confidentiality shall be enforceable for a period of five (5) years from the end of the commercial relationship between Customer and Company. Any confidential information must be returned to the disclosing party upon written request, the receiving party undertaking not to keep any copies of it with the exception of confidential information whose retention would be necessary to comply with its legal or regulatory obligations, particularly accounting or fiscal obligations.

 

34. INTELLECTUAL PROPERTY.

The Company retains, exclusively, all intellectual property rights attached to any materials made, prepared, or created by the Company or its agents and subcontracts during the execution of the services, including but not limited to, all documents, reports, plans, studies, analyses, operating procedures, instructions, drawings, sketches, calculations, data, notes, concepts, models, know-how, parts, and tools, or samples. The Customer acknowledges and agrees that it has no ownership, right, and/or claim to such materials and may use these documents only within the framework of the execution of the service and cannot in any case, without the prior written consent of the Company, allow third parties to design, develop, or manufacture products based on these documents, to copy them or to make them known in any way whatsoever to third parties who are not directly involved in the execution of the service or a part of it. The Customer hereby agrees to indemnify, guarantee, defend, and hold harmless the Company for all damages, losses, claims, actions, or other proceedings arising from any violation of the provisions of this article.

 

35. COMPLIANCE.

The Customer and the Company hereby warrant that their conduct respective to the services comply with all state, federal, and local rules, laws, and/or regulations including, where applicable, the Foreign Corrupt Practices Act of 1977, and all amendments to these provisions, commercial restrictions (in terms of customs, export and import controls, international sanctions and embargoes) including those enacted by France, the European Union, the United States, and the United Nations Organization, and all other legal obligations relating to any of the activities of the Customer and the Company, including, without limitation, the legal obligations applicable in matters of tax, product and/or consumer safety, protection of human rights, employees and the environment. The Customer expressly warrants it is not subject to any national, European, or international sanction(s). The parties agree, on the one hand, to inform each other without delay of any conduct and/or information that may become known that may incur liability under this article and, on the other hand, to provide all necessary assistance to respond to a request from a duly authorized authority relating to any potentially corrupt conduct. Any breach of this article by the Customer shall be considered a material breach under Paragraph 30 of this Agreement. 

 

36. GOVERNING LAW; JURISDICTION.

These terms and conditions, as well as the contract evidenced herein, and/or the services performed by the Company shall be governed by and construed according to the laws of the State of New York, without giving consideration to principles of conflict of law. Any suit, action or other legal proceeding arising out of, in connection with or related to these terms and conditions, as well as the contract evidenced herein, and/or the services performed by the Company must be commenced and litigated exclusively in the United States District Court for the Southern District of New York to whose jurisdiction the Customer consents for such purpose and if that court lacks subject matter jurisdiction, suit must be commenced in the Supreme Court for the State of New York, New York County to whose jurisdiction the Customer consents for such purpose.