TERMS AND CONDITIONS GOVERNING AIR FREIGHT

All air freight services performed by DT America Corporation (“DT America”) inclusive of any Air Waybill issued by DT America are subject to the following terms and conditions:

1. DEFINITIONS.

(a) “Carriage” means the whole or any part of the loading, handling, carriage, transport, storing, weighing, custody, care and discharge of the Goods and all other operations and services whatsoever performed by or on behalf of DT America, or a Sub-Contractor in connection with the Goods under these terms and conditions.

(b) “Carrier” means all air carriers that carry or undertake Carriage hereunder or perform any other services incidental to such Carriage. Merchant acknowledges and agrees that DT America is an indirect air carrier that does not transport cargo but arranges for transport of cargo with direct air carriers and/or other transportation service providers.

(c) “Dangerous Goods” means Goods that are or may become of a dangerous, inflammable, explosive, radioactive, corrosive, noxious, hazardous, poisonous or damaging nature, Goods that are or may become liable to damage the mode of transportation, any property whatsoever, any person or any other cargo, and/or Goods that are classified or described as dangerous in DT America’s applicable Tariff.

(d) “Freight” means all freight and charges payable to DT America in accordance with DT America’s applicable Tariff and these terms and conditions, including storage, demurrage and detention.

(e) “Goods” means the whole or any part of the goods and cargo received from the Merchant and described on any applicable air waybill or other shipping document(s) and includes any container, packaging or equipment not supplied by or on behalf of DT America. The term “Goods” includes, where applicable, Dangerous Goods.

(f) “Merchant” means the Shipper, Consignee, owner of the Goods, receiver of the Goods, a Person owning or entitled to possession of the Goods, importer or exporter of the Goods, and anyone acting on behalf of any such Person. The term “Merchant” does not include DT America, a Carrier or any of their parent, subsidiary, affiliated or related companies.

(g) “Montreal Convention” shall mean the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999).

(h) “Package” means where a container is loaded with more than one package or unit, the packages or other shipping units enumerated on any applicable air waybill or other shipping document(s) as packed in such container and entered in the box on the face thereof entitled “Total number of Containers or Packages received by Carrier” are each deemed a Package.

(i) “Person” means an individual, group, company, corporation, partnership or other legal entity as the case may be.

(j) “Sub-Contractor” means any independent contractors, agents, servants or other Persons employed by or on behalf of DT America in performance of the Carriage, as well as any direct or indirect subcontractor or agent of any of the foregoing.

(k) “Warsaw Convention” shall mean the Convention for the Unification of Certain Rules Relating to the International Carriage by Air, signed at Warsaw on 12 October 1929 and any amendments or supplements thereto as may be applicable.

2. DT AMERICA’S TARIFF.

The terms and conditions of DT America’s applicable Tariff, if any, are incorporated herein. Copies of the relevant provisions of the applicable Tariff are obtainable from DT America upon request or, where applicable, from the governmental agency with whom such Tariff has been filed. In the case of inconsistency between these terms and conditions and any applicable Tariff, these terms and conditions shall prevail.

3. NEGOTIABILITY AND TITLE TO THE GOODS.

If DT America issues an air waybill in connection with its services, such bill shall be non-negotiable (straight bill of lading) and shall not constitute a document of title, unless expressly marked “Order Bill” on the front hereof by an authorized representative of DT America.

4. DT AMERICA’S RESPONSIBILITY.

DT America undertakes to procure the services necessary to effect the transport of the Goods from the place where they are accepted to the destination. DT America shall not be responsible for loss of or damage to the Goods occurring before the receipt of the Goods by DT America or after the delivery of the Goods to Merchant or its designee. The custody and Carriage of the Goods are subject to these terms and conditions, as well as DT America’s Tariffs, rates and rules. Subject to the other terms and conditions herein, DT America shall be liable for loss of or damage to the Goods occurring between the time when it receives the Goods and the time of delivery only to the extent set forth herein. Insurance on the Goods will not be arranged by DT America except with the express written instructions of Merchant prior to receipt of the Goods by DT America and then only upon the payment of premium by Merchant and lodgment of a declaration as to value prior to shipment.

5. SUBCONTRACTING.

(a) DT America shall be entitled to subcontract the whole or any part of the Carriage on any terms or conditions whatsoever, including liberty to further subcontract.

(b) Merchant undertakes that no claim or allegation shall be made against any Person who performs or undertakes the Carriage (including all Sub-Contractors) other than the DT America that imposes or attempts to impose upon such Person any liability whatsoever in connection with the Goods or the Carriage, whether or not caused by or resulting from negligence, breach or other fault on the part of such Person, and, if any such claim or allegation should nevertheless be made, to indemnify and hold harmless DT America against all consequences thereof.

(c) Any Person who undertakes to perform the Carriage (including any Sub-Contractor) shall have the benefit of every privilege, right, defense, exclusion, immunity and exemption from or limitation of liability whatsoever applicable to DT America or to which DT America is entitled herein or otherwise, including but not limited to the right to enforce Clause 23 hereof, as if such provisions were expressly for such Person’s benefit. In entering into this contract, DT America, to the extent of those provisions, does so not only on its own behalf but also as agent or trustee for such Persons.

6. MERCHANT’S RESPONSIBILITY.

(a) Merchant shall comply with all laws, regulations and requirements that may be applicable during the Carriage, as well as concerning documentation and any other matters affecting or in any way relating thereto, and shall bear and pay (or indemnify DT America if it shall be obliged to pay first) any and all duties, taxes, fines, penalties, costs, expenses, losses and damages (whether direct, indirect or consequential) directly or indirectly caused by or resulting from Merchant’s failure to so comply. Merchant shall also bear and pay (or indemnify DT America if it shall be obliged to pay first) any and all duties, taxes, fines, penalties, costs, expenses, losses and damages (whether direct, indirect or consequential), as well as any attorney fees and expenses, in respect of the Goods directly or indirectly caused by or resulting from any illegal, incorrect, untimely or insufficient declaration, marking, number or addressing of the Goods. In particular, but without limitation, in case of any such noncompliance, DT America and/or its agents shall be at liberty to reserve not to receive the Goods.

(b) Merchant undertakes that the Goods are packed in a manner and, if applicable, packed into a container (in the case of not being packed by or on behalf of DT America) adequate to withstand the ordinary risks of Carriage having due regard to their nature and in compliance with all laws, regulations and requirements that may be applicable during the Carriage. Merchant further undertakes that the description of the Goods on the front hereof, including content, weight, dimensions, value, and classification is accurate, complete, and not misleading.

(c) Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property (including but not limited to containers) of DT America, Carrier or any Sub-Contractor directly or indirectly caused by Merchant or any Person acting on its behalf or for which Merchant is otherwise responsible. Merchant shall defend, indemnify and hold harmless DT America against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines and penalties of whatsoever kind or nature suffered or incurred by DT America, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from Merchant’s failure to comply with paragraph (b) of this Clause.

(d) Unless DT America prepares and issues an air waybill in connection with its services, Merchant shall have the duty to prepare and present an air waybill for any Goods tendered to DT America. If a Person other than Merchant prepares an air waybill, that Persona shall be deemed to have done so as agent of Merchant. DT America does not accept any terms and conditions contained in any air waybill or other shipping documents prepared by Merchant or any other Person and, in the event of conflict between DT America’s terms and conditions herein and Merchant’s terms and conditions, if any, the terms and conditions of DT America take precedence and control. 

(e) Merchant shall be jointly and severally liable and remain so, whether or not any applicable air waybill has been transferred, to DT America for the due fulfilment of all obligations to be undertaken or performed by Merchant in these terms and conditions and shall defend, indemnify and hold harmless DT America against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines, penalties customs, duties and taxes of whatsoever kind or nature suffered or incurred by DT America, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from any breach by Merchant of any provision of these terms and conditions, including but not limited to the warranties and undertakings herein, DT America’s applicable Tariff, any law, regulation or requirements that may be applicable during the Carriage, or any other cause in connection with the Goods for which DT America is not responsible. Any obligation to defend, indemnify and hold harmless DT America or others set forth herein shall include and encompass DT America’s negligence, whether sole or otherwise, to the full extent permitted by the applicable law and shall also include contractual liability to third parties.

7. NOTICE OF LOSS; TIME BAR.

(a) DT America shall be deemed prima facie to have delivered the Goods as described in any applicable air waybill or other shipping document unless written notice of loss of or damage to the Goods indicating the general nature of such loss or damage shall have been given to DT America within 14 days from delivery of the Goods or, if the Goods are not delivered, within 21 days from the date the Goods should have been delivered. In case of damage not apparent upon inspection, the onus of proof that such damage occurred during Carriage shall be on Merchant. Any notation of loss or damage on the delivery receipt or the notice given by Merchant shall be explicit, failing which DT America shall not accept responsibility for such loss or damage whatsoever or howsoever caused.

(b) Where the Goods have been or may have been lost or damaged while in the custody of a Sub-Contractor, DT America shall be discharged from all liability whatsoever in respect of the Goods unless Merchant gives DT America written notice of loss or damage in time for DT America to comply with the requirements of the Sub-Contractor.

(c) DT America shall be discharged of all liability whatsoever in respect of the Goods unless suit is brought in the proper forum and written notice thereof is received by DT America within two years after delivery of the Goods or, if the Goods are not delivered, the date when the Goods should have been delivered. Suit shall not be deemed brought against DT America until jurisdiction shall have been obtained by service of process on DT America.

8. LIMITATION OF LIABILITY.

(a) If the Warsaw Convention or Montreal Convention is compulsorily applicable, DT America’s liability shall be governed by and limited according to those applicable rules and provisions and the herein terms and conditions shall apply only to the extent not inconsistent with such rules. Where the Warsaw Convention and Montreal Convention do not apply, DT America’s liability will be governed exclusively by these terms and conditions.

(b) For Carriage where neither the Warsaw Convention or Montreal Convention apply and except as otherwise expressly agreed in a written agreement signed by an authorized representative of DT America, DT America’s maximum liability for loss or damage to the Goods shall be limited to the lesser of: (i) the actual value of the Goods; or (ii) US$50 or the weight of the actual piece count lost or damaged in pounds multiplied by US$0.50, whichever is greater. In no event shall DT America’s liability exceed $50,000 for any single occurrence.

(c) If Merchant declares a value of the Goods and pays applicable additional charges and DT America receives written notice of such declaration, the DT America’s liability shall be limited to the lesser of the amount of any damage actually sustained or the declared value.

(d) IN NO EVENT SHALL DT AMERICA 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

9. DELAY.

DT America does not warrant or undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place during the Carriage or at the destination on any particular date or at any particular time (whether advertised or not), to meet any particular requirement of Merchant, or any market or use. Except where the Warsaw Convention or Montreal Convention is compulsorily applicable, DT America 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 DT America should nevertheless be held liable for any loss or damage caused by or resulting from delay, such liability shall in no event exceed the Freight paid for the Carriage covered by these terms and conditions.

10. MODIFICATION OF SERVICES.

(a) Merchant reserves the right to modify or alter the services of DT America upon written notice to DT America. If Merchant modifies or alters the services performed by DT America after the services have begun, Merchant shall be solely responsible for all costs incurred by DT America due to such modification or alteration. DT America 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 Merchant modifies or alters the services of DT America or fails to provide goods to DT America less than 30 calendar days before the scheduled start of the services, Merchant agrees to pay DT America, in addition to the reimbursement of all costs borne by DT America 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 DT America 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 DT America 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 DT America 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 DT America less than 3 calendar days before the scheduled start of the services. If Merchant cancels the services of DT America, in part or whole, less than 30 calendar days before the scheduled start date, Merchant agrees to pay DT America, in addition to the reimbursement of all costs borne by DT America 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 DT America 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 DT America 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 DT America 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 DT America 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, DT America will request instructions from Merchant. The implementation of these instructions is subject to obtaining the necessary administrative authorizations. If DT America has been unable to obtain timely instructions from Merchant, DT America will take the measures that seem best in Merchant’s interest for the preservation of the goods or their transportation by other routes or means. In the absence of a response from Merchant within a maximum period of fifteen calendar days from the date of the first request for instructions from DT America, the services contract shall be automatically terminated, and the goods are considered abandoned by Merchant to DT America, 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 DT America, Merchant shall reimburse DT America for any and all expenses or costs arising from the instructions given by Merchant or, if applicable, the measures taken in the best interest of Merchant 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, DT America 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.

11. MATTERS AFFECTING PERFORMANCE.

(a) DT America is not 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 DT America, including without limitation: (1) acts of God, including flood, earthquake, storm, hurricane, power failure, other natural disaster, pandemic or epidemic; (2) war, hijacking, robbery, theft, civil commotions or riots, or terrorist activities; (3) incidents or deteriorations to means of transportation, cyberattacks, ransomware, or major outages or telecommunication networks; (4) embargoes, acts by any governmental or quasi-governmental authority including denial, cancellation, or revocation of any import, export or other necessary license; (5) 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 (6) strikes, lockouts, slowdowns or other labor conflicts.

(b) If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind whatsoever or howsoever arising (even if the circumstances giving rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for the Carriage), DT America (whether or not the Carriage has commenced) may, without notice to Merchant and in its sole discretion, either: (1) effect Carriage of the Goods by an alternative route to that indicated in any applicable air waybill or that which is usual for goods consigned to such place of delivery. If DT America so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as DT America may determine, notwithstanding the provisions of Clause 17; or (2) Suspend the Carriage of the Goods and store them subject to the terms and conditions herein and use reasonable efforts to effect delivery of the Goods as soon as practicable, but DT America makes no representation as to the maximum period of suspension. If DT America so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as DT America may determine, notwithstanding the provisions of Clause 17; or (3) Abandon the Carriage and, where reasonably possible, place the Goods or any part of them at Merchant’s disposal at any place that DT America may, in its sole discretion, deem safe and convenient, whereupon DT America’s responsibility in respect of the Goods shall cease. DT America shall nevertheless be entitled to full Freight, and Merchant shall pay any additional costs of the Carriage to, as well as delivery and storage at, or place. If DT America elects to use an alternative route under paragraph (b)(1) of this Clause or to suspend the Carriage under paragraph (b)(2) of this Clause, this shall not prejudice its right subsequently to abandon the Carriage; or (4) Without prejudice to DT America’s rights subsequently to use an alternative route under paragraph (b)(1) of this Clause or to suspend Carriage under paragraph (b)(2) of this Clause or to abandon the Carriage under paragraph (b)(3) of this Clause, continue the Carriage.

(c) The circumstances referred to in paragraph (b) of this Clause shall include, but shall not be limited to, those caused by the existence or apprehension of war declared or undeclared, hostilities, warlike or belligerent acts or operations; riots, civil commotions or other disturbances; closure of, obstacles in or danger to any transportation route; interdiction or prohibition of or restriction on commerce or trading; quarantine, sanitary or other similar regulations or restrictions; strikes, lockouts or other labor troubles whether or partial or general and whether or not involving employees of DT America or Sub-Contractors; shortage, absence or obstacles of labor or facilities for loading, discharge, storage, delivery or other handling of the Goods; pandemics, epidemics or diseases; bad weather, landslide or other obstacle in navigation or carriage.

12. LIEN.

DT America shall have a lien on the Goods and any documents relating thereto for all sums whatsoever earned or due at any time to DT America from Merchant under this Bill and/or any other contract or paid by DT America, including, but not limited to, any liens or penalties levied on DT America, for any acts or omissions for which Merchant is responsible. DT America shall have the right to exercise the lien at any time and at any place at its discretion to recover the sums due to DT America and for that purpose to sell the Goods and documents by public auction or private treaty, without notice to Merchant and at Merchant’s expense and without any liability towards Merchant. DT America shall be entitled to claim the difference in the event that the sale proceeds do not discharge in full the amount due from Merchant. DT America’s lien shall survive the delivery of the Goods.

13. DESCRIPTION OF GOODS.

(a) Merchant shall provide DT America with all information concerning the Goods, which is accurate, complete and sufficient to allow DT America to comply with all laws and regulations concerning the storing, handling and transporting of the stored Goods. Merchant shall indemnify, defend and hold DT America harmless from all loss, liabilities, claims, costs, penalty and expense (including reasonable attorneys’ fees) arising out of Merchant’s failure to provide the information required in this section.

(b) The description and particulars of the Goods set out on any applicable air waybill or other shipping documents are furnished by or on behalf of Merchant and are unknown to DT America. Merchant warrants to DT America that the description and particulars provided by it or on its behalf, including but not limited to weight, measure, quantity, quality, description, conditions, marks, numbers, origin and value, have been checked by Merchant and that such description and particulars, including any other particular furnished by or on behalf of Merchant, are true, adequate and correct. Merchant is responsible for any customs, duties, taxes, fines or penalties imposed on or in respect of any Goods that have been incorrectly described or declared by Merchant.

14. INSPECTION OF GOODS.

DT America and any Person authorized by DT America shall be entitled, but under no obligation, to inspect any and all Goods tendered to DT America at any time. If pursuant to any provision herein or if by order of the authorities at any point or place, a package has to be opened and/or the seal of a shipment broken, DT America shall not be liable for any loss, damage or delay directly or indirectly caused by or resulting from any opening, unpacking, inspection, re-weighing, re-measurement, re-valuation, repacking or resealing of the Goods. Merchant shall indemnify DT America for any and all charges, costs and expenses of all such measures taken.

15. DANGEROUS GOODS; CONTRABAND.

(a) No Dangerous Goods shall be tendered for Carriage without giving prior written notice to DT America of their precise nature, character, type, name, label and classification, as well as the method of rendering them safe, and without obtaining DT America’s prior express consent in writing. DT America may, in its absolute discretion and option, accept or reject the Carriage of any Dangerous Goods.

(b) Merchant shall undertake that any Dangerous Goods that may be tendered to DT America for Carriage are clearly and durably marked to indicate the nature of the Dangerous Goods and as otherwise required by any laws, regulations, codes and conventions that may apply during the Carriage. Merchant shall also undertake to submit the documents or certificates required by any laws, regulations, codes and conventions that may apply during the Carriage.

(c) Merchant warrants that Dangerous Goods shall be packed in a manner to withstand the ordinary risks of Carriage, having due regard to their nature and in compliance with any laws, regulations, codes and conventions that may apply during the Carriage.

(d) If any Dangerous Goods are tendered to DT America without obtaining the prior written consent required by paragraph (a) of this Clause or without the marking or packing required by paragraphs (b) and (c) of this Clause or, if in the opinion of DT America, the Goods are or may become of a dangerous, inflammable, explosive, radioactive, corrosive, noxious, hazardous, poisonous, or damaging nature and cannot safely or properly be carried or carried further, whether or not taking any measures or incurring additional expense, DT America, at its absolute discretion and without notice to Merchant, (but as Merchant’s agent only) may at any time or place take such measures as it considers appropriate and/or incur reasonable additional expense to continue the Carriage and/or arrange at Merchant’s sole risk and expense for such Dangerous Goods or other Goods to be stored, sold, destroyed, disposed of, abandoned or rendered harmless without compensation to Merchant and without prejudice to DT America’s rights to Freight. Such action shall be deemed to constitute final and due delivery, and Merchant shall pay all costs and expenses incurred by DT America. In exercising its discretion hereunder, DT America shall not be under any obligation to take any particular measure and shall not be liable for any loss, damage or delay whatsoever or howsoever caused or any lack of action relating thereto.

(e) Merchant warrants that the Goods are lawful goods according to all laws, regulations and conventions that may apply during the Carriage and are not, or do not contain, contraband, sanctioned items, prohibited or illegal substances, or narcotics. Whenever the Goods are perceived or found to be in breach of this warranty, DT America shall be entitled to have such Goods abandoned or left to Merchant at any place DT America may choose or otherwise disposed of in DT America’s sole discretion without compensation to Merchant.

(f) Merchant shall defend, indemnify and hold harmless DT America against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines and penalties of whatsoever kind or nature suffered or incurred by DT America, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from a breach of paragraphs (a)-(e) of this Clause and all resulting actions taken by DT America and, further, Merchant shall post any necessary bonds or financial guarantees as may be required because of such breach.

16. AMOUNT OF COMPENSATION; DECLARED VALUE; VALUABLE GOODS.

(a) Subject to Clause 8, if DT America is liable for compensation in respect of loss of or damage to or in connection with the Goods, such compensation shall be calculated by reference to the commercial invoice value of the Goods plus Freight and insurance if paid. If there is no commercial invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of the Goods at the place and time they are delivered or should have been delivered to Merchant.

(b) Merchant agrees and acknowledges that DT America has no knowledge of the value of the Goods and, unless a declared value has been noted in accordance with paragraph (c) of this Clause, the liability of DT America for any and all loss of or damage to or in connection with the Goods shall in no circumstances exceed the limitations set forth in Clause 8 herein. Any limitation of liability provided for herein shall be a single, aggregate limitation, and satisfaction of such limitation by any beneficiary of such limit shall act as a satisfaction of such limitation by all beneficiaries and against all claimants.

(c) Merchant may claim higher compensation than the limits of liability provided for herein only when, with the written consent of DT America: (1) Merchant elects to avoid any limitation of liability provided herein by prepaying extra Freight and opting for full liability by complying with the terms in DT America’s applicable Tariff; and (2) in all other cases, the Merchant declares the value of the Goods and requests that DT America insert the declared value of the Goods on the front of an applicable air waybill and for which extra Freight has been paid by Merchant. In that case, the amount of the declared value shall be substituted for the limits of liability provided for herein. In such case, if the actual value of the Goods shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and DT America’s liability, if any, shall not exceed the declared value. Any partial loss of or damage to the Goods shall be adjusted pro rata on the basis of such declared value. DT America’s knowledge of the value of the Goods and/or Merchant’s declaration of the value of the Goods to DT America in the regular course or for any purpose other than this sub-clause, such as for customs purposes, shall in no event constitute a declared value of the Goods to DT America for liability purposes or this sub-clause.

(d) In the event of loss or damage subject to a compulsorily applicable law that invalidates DT America’s otherwise applicable maximum contractual liability hereunder, DT America’s liability shall be limited to the lowest amount permissible by such applicable law.

17. FREIGHT.

Full Freight shall be due and payable to DT America by Merchant via wire transfer, ACH, check, or other payment method acceptable to DT America without set-off, deduction or counterclaim on receipt of the Goods or part thereof by DT America. Freight shall be deemed to have been fully earned and non-returnable on receipt of the Goods by DT America, whether or not the Goods are lost or damaged. Merchant shall remain liable to DT America for Freight, regardless of whether Freight is stated on the front hereof or intended to be prepaid or collect. All Freight shall be paid without any set off, counterclaim or deduction. Payment of Freight to a freight forwarder, broker or any Person other than DT America or its authorized agent shall not be deemed payment to DT America and shall be made at Merchant’s sole risk. Any Freight unpaid 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 DT America modifying or revoking any credit or payment terms previously agreed upon between DT America and Merchant. DT America 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 DT America.

18. CONFIDENTIALITY.

Except where disclosure may be required pursuant to a court order, government requirement, or other legal requirement, Merchant and DT America 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 Merchant and DT America. 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.

19. CUSTOMS CLEARANCE.

All shipments that cross international borders shall be cleared through Customs in the destination country prior to delivery to Merchant. Customs clearance is the sole responsibility of Merchant and DT America is under no obligation to undertake Customs clearance of any Goods. Merchant shall indemnify and hold DT America harmless for any penalties, fines, forfeitures, or expenses resulting from inaccurate, incomplete, or improper Customs documentation or declarations.

20. TSA COMPLIANCE.

Merchant acknowledges and hereby consents that any Goods tendered to DT America or a Sub-Contractor may be subject to the U.S. Transportation Security Administration’s cargo screening requirements.

21. COMPLIANCE.

Merchant and DT America 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 Merchant and DT America, including, without limitation, the legal obligations applicable in matters of tax, product and/or consumer safety, protection of human rights, employees and the environment. Merchant 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 Merchant shall be considered a material breach of this agreement.

22. TERMONATION.

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 Merchant 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 DT America shall have no obligation to release, return, or facilitate the release or return of Merchant’s Goods until all outstanding monies owed hereunder have been paid in full. DT America’s general lien set forth in the Lien clause herein shall remain in full force and effect after termination of this agreement.

23. GOVERNING LAW; JURISDICTION.

These terms and conditions and/or the services provided by the DT America hereunder shall be governed and construed in accordance with the laws of the State of New York, without giving consideration to the principles of conflicts of law. Any suit, action or other legal proceeding arising out of, in connection with or related to these terms and conditions and/or the services provided by DT America must be commenced and litigated exclusively in the United States District Court for the Southern District of New York to whose jurisdiction Merchant 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 Merchant consents for such purpose.

24. SEVERABILITY AND WAIVER.

If any provision of these terms and conditions or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions shall not be affected thereby but shall remain in full force and effect. The DT America’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). The provisions of terms and conditions shall be binding upon the Merchant’s heirs, executors, successors and assigns; contain the sole agreement governing the Carriage; and cannot be modified except by a writing signed by the DT America.

25. PRECEDENCE.

The DT America does not accept any terms or conditions contained in the Merchant’s service contract or agreement with DT America, correspondence of any kind, invoices, or any other written or unwritten material and, in the event of conflict between DT America’s terms and conditions herein and Merchant’s terms and conditions, if any, the terms and conditions of DT America take precedence and control.