TERMS AND CONDITIONS GOVERNING AIR FREIGHT

1. DEFINITIONS.

(a) “Bill” means this document whether issued as a bill of lading or a waybill and whether issued in paper or electronic form. Notwithstanding anything else contained in or incorporated into this Bill, this document will not be a document of title to the Goods if it is issued as a waybill.

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

(c) “Carrier” means SouthQuest Transportation LLC and any Sub-Contractor or third-party motor carrier that undertakes Carriage hereunder.

(d) “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 Carrier’s applicable Tariff.

(e) “Freight” means all freight and charges payable to Carrier in accordance with Carrier’s applicable Tariff and this Bill, including storage, demurrage and detention.

(f) “Goods” means the whole or any part of the goods and cargo received from the Merchant and described on the front of this Bill and includes any container, packaging or equipment not supplied by or on behalf of Carrier. The term “Goods” includes, where applicable, Dangerous Goods.

(g) “Merchant” means the Shipper, Consignee, any Person to whom the Bill is endorsed, owner of the Goods, receiver of the Goods, a Person owning or entitled to possession of the Goods or of this Bill, the holder of this Bill, importer or exporter of the Goods, and anyone acting on behalf of any such Person. The term “Merchant” does not include the Carrier or any of its parent, subsidiary, affiliated or related companies.

(h) “Package” means where a container is loaded with more than one package or unit, the packages or other shipping units enumerated on the face of this Bill as packed in such container and entered in the box on the face hereof 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 Carrier in performance of the Carriage, as well as any direct or indirect subcontractor or agent of any of the foregoing.

2. CARRIER’S TARIFF.

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

3. NEGOTIABILITY AND TITLE TO THE GOODS.

This 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 Carrier.

4. CARRIER’S RESPONSIBILITY.

Carrier undertakes to procure the services necessary to effect the transport of the Goods from the place where they are accepted as designated on the front hereof to the place of final delivery as designated on the front hereof. Carrier shall not be responsible for loss of or damage to the Goods occurring before the receipt of the Goods by Carrier or after the delivery of the Goods to Merchant or its designee. The custody and Carriage of the Goods are subject to this Bill, as well as Carrier’s Tariffs, rates and rules. Subject to the other terms and conditions of this Bill, Carrier 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 Carrier except with the express written instructions of Merchant prior to receipt of the Goods by Carrier and then only upon the payment of premium by Merchant and lodgment of a declaration as to value prior to shipment.

5. SUBCONTRACTING.

(a) Carrier 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 Carrier 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 the Carrier 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 Carrier or to which Carrier is entitled herein or otherwise, including but not limited to the right to enforce Clause 22 hereof, as if such provisions were expressly for such Person’s benefit. In entering into this contract, Carrier, 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 Carrier 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 Carrier 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, Carrier 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 Carrier) 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.

(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 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 Carrier 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 Carrier, 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) Merchant shall be jointly and severally liable and remain so, whether or not this Bill has been transferred, to Carrier for the due fulfilment of all obligations to be undertaken or performed by Merchant in this Bill and shall defend, indemnify and hold harmless Carrier 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 Carrier, 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 this Bill, including but not limited to the warranties and undertakings herein, Carrier’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 Carrier is not responsible. Any obligation to defend, indemnify and hold harmless Carrier or others set forth in this Bill shall include and encompass Carrier’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) Carrier shall be deemed prima facie to have delivered the Goods as described in this Bill unless notice of loss of or damage to the Goods indicating the general nature of such loss or damage shall have been given to Carrier or its agent within 120 days from delivery of the Goods or, if the Goods are not delivered, 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 Carrier 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, Carrier shall be discharged from all liability whatsoever in respect of the Goods unless Merchant gives Carrier notice of loss or damage in time for Carrier to comply with the requirements of the Sub-Contractor.

(c) Carrier 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 Carrier within one year 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 Carrier until jurisdiction shall have been obtained by service of process on Carrier.

8. LIMITATION OF LIABILITY.

(a) Except as otherwise expressly agreed in a written agreement signed by an authorized representative of Carrier, Carrier’s maximum liability for loss or damage to the Goods shall be limited to the lesser of: (i) the actual value of the Goods; (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 Carrier’s liability exceed $50,000 for any single occurrence.

(b) If the Merchant declares a value of the Goods and pays applicable additional charges, the Carrier’s liability shall be limited to the lesser of the amount of any damage actually sustained or the declared value.

(c) IN NO EVENT SHALL CARRIER 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. WAIVER OF CARMACK AMENDMENT.

If the Carmack Amendment (“Carmack”) to the Interstate Commerce Act (49 U.S.C. §§ 14706 et. seq.) is compulsorily applicable to any portion of the Carriage, then these terms and conditions shall be considered an agreement entered into pursuant to 49 U.S.C. § 14101(b) and the Merchant hereby expressly waives any and all rights or remedies it may have under Carmack. In the event Carmack applies to any portion of the Carriage, the Merchant must file a written notice of claim for any loss or damage to the Goods within nine months from the date of delivery of the Goods to the Merchant and the Merchant must file a lawsuit no later than two years after the Carrier’s denial of the claim.

10. DELAY.

Carrier 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 final 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. Carrier 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 Carrier should nevertheless be held liable or 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 this Bill.

11. MODIFICATION OF SERVICES.

(a) Merchant reserves the right to modify or alter the services of Carrier upon written notice to Carrier. If Merchant modifies or alters the services performed by Carrier after the services have begun, Merchant shall be solely responsible for all costs incurred by Carrier due to such modification or alteration. Carrier 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 Carrier or fails to provide goods to Carrier less than 30 calendar days before the scheduled start of the services, Merchant agrees to pay Carrier, in addition to the reimbursement of all costs borne by Carrier 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 Carrier 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 Carrier 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 Carrier 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 Carrier less than 3 calendar days before the scheduled start of the services. If Merchant cancels the services of Carrier, in part or whole, less than 30 calendar days before the scheduled start date, Merchant agrees to pay Carrier, in addition to the reimbursement of all costs borne by Carrier 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 Carrier 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 Carrier 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 Carrier 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 Carrier 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, Carrier will request instructions from Merchant. The implementation of these instructions is subject to obtaining the necessary administrative authorizations. If Carrier has been unable to obtain timely instructions from Merchant, Carrier 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 Carrier, the services contract shall be automatically terminated, and the goods are considered abandoned by Merchant to Carrier, 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 Carrier, Merchant shall reimburse Carrier 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, Carrier 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.

12. MATTERS AFFECTING PERFORMANCE.

(a) Carrier 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 Carrier, 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), Carrier (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 this Bill or that which is usual for goods consigned to such place of delivery. If Carrier so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as Carrier may determine, notwithstanding the provisions of Clause 18; or (2) Suspend the Carriage of the Goods and store them subject to the terms and conditions of this Bill and use reasonable efforts to effect delivery of the Goods as soon as practicable, but Carrier makes no representation as to the maximum period of suspension. If Carrier so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as Carrier may determine, notwithstanding the provisions of Clause 18; 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 Carrier may, in its sole discretion, deem safe and convenient, whereupon Carrier’s responsibility in respect of the Goods shall cease. Carrier 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 Carrier 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 Carrier’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 Carrier 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.

13. LIEN.

Carrier shall have a lien on the Goods and any documents relating thereto for all sums whatsoever earned or due at any time to Carrier from Merchant under this Bill and/or any other contract or paid by Carrier, including, but not limited to, any liens or penalties levied on Carrier, for any acts or omissions for which Merchant is responsible. Carrier shall have the right to exercise the lien at any time and at any place at its discretion to recover the sums due to Carrier 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. Carrier shall be entitled to claim the difference in the event that the sale proceeds do not discharge in full the amount due from Merchant. Carrier’s lien shall survive the delivery of the Goods.

14. DESCRIPTION OF GOODS.

(a) Merchant shall provide Carrier with all information concerning the Goods, which is accurate, complete and sufficient to allow Carrier to comply with all laws and regulations concerning the storing, handling and transporting of the stored Goods. Merchant shall indemnify, defend and hold Carrier 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 the front hereof are furnished by or on behalf of Merchant and are unknown to Carrier. Merchant warrants to Carrier 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 on receipt of this Bill 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.

15. INSPECTION OF GOODS.

Carrier and any Person authorized by Carrier shall be entitled, but under no obligation, to inspect any and all Goods tendered to the Carrier at any time. If pursuant to any provision under this Bill 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, Carrier 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 Carrier for any and all charges, costs and expenses of all such measures taken.

16. DANGEROUS GOODS; CONTRABAND.

(a) No Dangerous Goods shall be tendered for Carriage without giving prior written notice to Carrier of their precise nature, character, type, name, label and classification, as well as the method of rendering them safe, and without obtaining Carrier’s prior express consent in writing. Carrier 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 Carrier 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 Carrier 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 Carrier, 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, Carrier, 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 Carrier’s rights to Freight. Such action shall be deemed to constitute final and due delivery under this Bill, and Merchant shall pay all costs and expenses incurred by Carrier. In exercising its discretion hereunder, Carrier 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, Carrier shall be entitled to have such Goods abandoned or left to Merchant at any place Carrier may choose or otherwise disposed of in Carrier’s sole discretion without compensation to Merchant.

(f) Merchant shall defend, indemnify and hold harmless Carrier 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 Carrier, 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 Carrier and, further, Merchant shall post any necessary bonds or financial guarantees as may be required because of such breach.

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

(a) Subject to Clause 8, if Carrier 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 Carrier 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 Carrier 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 in this Bill only when, with the written consent of Carrier: (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 Carrier’s applicable Tariff; and (2) in all other cases, the Merchant declares the value of the Goods and requests that Carrier insert the declared value of the Goods on the front of this Bill 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 in this Bill. 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 Carrier’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. Carrier’s knowledge of the value of the Goods and/or Merchant’s declaration of the value of the Goods to Carrier 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 Carrier for liability purposes or this sub-clause.

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

18. FREIGHT.

Full Freight shall be due and payable to Carrier by Merchant via wire transfer, ACH, check, or other payment method acceptable to Carrier without set-off, deduction or counterclaim on receipt of the Goods or part thereof by Carrier. Freight shall be deemed to have been fully earned and non-returnable on receipt of the Goods by Carrier, whether or not the Goods are lost or damaged. Merchant shall remain liable to Carrier 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 Carrier or its authorized agent shall not be deemed payment to Carrier 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 Carrier modifying or revoking any credit or payment terms previously agreed upon between Carrier and Merchant. Carrier 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 Carrier.

19. CONFIDENTIALITY.

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

20. COMPLIANCE.

Merchant and Carrier 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 Carrier, 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.

21. 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 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 Carrier 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. Carrier’s general lien set forth in the Lien clause herein shall remain in full force and effect after termination of this agreement.

22. GOVERNING LAW; JURISDICTION.

This Bill and the contract evidenced herein and/or the services provided by the Carrier 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, as well as the contract evidenced herein and/or the services provided by Carrier 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.

23. 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 Carrier’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 Carrier.

24. PRECEDENCE.

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