These
terms and conditions of service constitute a legally binding
contract between the "Company" and the "Customer"
in the event the Company renders services and issues a
document containing Terms and Conditions set forth in
such other document(s) shall govern those services.
1.
Definitions.
a. "Company"
shall mean Paul Bellack Inc, its subsidiaries, related
companies, agents and/or representatives;
b. "Customer"
shall mean the person for which the Company is rendering
services, as well as its agents and/or sellers, shipper's
agents, insurers and underwriters, break-bulk agents,
consignees, etc. It is the responsibility of the Customer
to provide notice and copy(s) of these terms and conditions
of service to all such agents or representatives;
c. "Documentation"
shall mean all information received directly or indirectly
from Customer, whether in paper or electronic form;
d. "Ocean
Transportation Intermediaries" ("OTT")
shall include an "ocean freight forwarder" and
a "non-vessel operating carrier";
e.
"Third parties" shall include, but not
be limited to, the following: "carries, truckmen,
cartmen, lightermen, forwarders, OTIs, customs brokers,
agents, warehousemen and others to which the goods are
entrusted for transportation, cartage, handling and/or
delivery and/or storage or otherwise".
2. Company
as agent. The Company acts as the "agent"
of the Customer for the purpose of performing duties in
connection with the entry and release of goods, post entry
services, the securing of export licenses, the filing
of export documentation on behalf of the Customer and
other dealings with Government Agencies: as to all other
services, Company acts as an independent contractor.
3. Limitation
of Actions.
a. Unless subject to
specific statute or international convention, all claims
against the Company for a potential or actual loss, must
be made in writing and received by the Company, within
ninety (90) days of the event giving rise to claim; the
failure to give the Company timely notice shall be complete
defense to any suit or action commenced by Customer.
b. All suites
against Company must be filed and properly served on Company
as follows:
i. For
claims arising out of ocean transportation, within one
(1) year from the date of the loss;
ii. For claims
arising out of air transportation, within two (2) years
from the date of the loss;
iii. For claims
arising out of the preparation and/or submission of an
import entry(s), within seventy five (75) days from the
date of liquidation of the entry(s);
iv. For any
and all other claims of any other type, within two (2)
years from the date of the loss or damage.
4. No
Liability For The Selection or Services of Third Parties
and/or Routes. Unless services are performed by persons
or firms engaged pursuant to express written instructions
from the Customer, Company shall use reasonable care in
its selection of third parties, or in selecting the means,
route and procedure to be followed in the handling, transportation,
clearance and delivery of the shipment; advice by the
Company that a particular person or firm has been selected
to render services with respect to the goods, shall not
be construed to mean that the Company warrants or represents
that such person or firm will render such services nor
does Company assume responsibility or liability for any
actions(s) and/or inaction(s) of such third parties and/or
its agents, and shall not be liable for any delay or loss
of any kind, which occurs while a shipment is in the custody
or control of a third party or the agent of a third party;
all claims in the connection with the Act of a third party
shall be brought solely against such party and/or its
agents; in connection with any such claim, the Company
shall reasonably cooperate with the Customer, which shall
be liable for any charges or costs incurred by the Company.
5. Quotations
Not Binding. Quotations as to fees, rates of
duty, freight charges, insurance premiums or other charges
given by the Company to the Customer are for informational
purposes only and are subject to change without notice;
no quotation shall be binding up the Company unless the
Company in writing agrees to undertake the handling or
transportation of the shipment at a specific rate or amount
set forth in the quotation and payment arrangements are
agreed to between the Company and the Customer.
6.
Reliance On Information Furnished.
a. Customer acknowledges
that it is required to review all documents and declarations,
documentation and/or filed with the Customers Services,
other Government Agency and/or third parties, and will
immediately advise the Company of any errors, discrepancies,
incorrect statements, or omissions on any declaration
filed on Customers behalf;
b. In preparing
and submitting customs entries, export declarations, applications,
documentation and/or export data to the United States
and/or a third party, the Company relies on the correctness
of all documentation, whether in written or electronic
format, and all information furnished by Customer; Customer
shall use reasonable care to insure the correctness of
all such information and shall indemnify and hold the
Company harmless form any and all claims asserted and/or
liability or losses suffered by reason of the Customer¡¦s
failure to disclose information or any incorrect or false
statement by the customer upon which the Company reasonably
relied. The Customer agrees that the Customer has
an affirmative non-delegable duty to disclose any and
all information required to import, export or enter the
goods.
7. Declaring
Higher Value To Third Parties. Third parties to whom
the goods are entrusted may limit liability for loss or
damage; the Company will request excess valuation coverage
only upon specific written instructions from the Customer,
which must agree to pay any charges therefore; in the
absence of written instructions or the refusal of the
third party to agree to a higher declared value, at Company's
discretion, the goods may be tendered to the third party,
subject to the terms of the third party's limitations
of liability and/or terms and conditions of service.
8. Insurance.
Unless requested to do so in writing and confirmed to
Customer in writing, Company is under no obligation to
procure insurance on the Customer's behalf; in all
cases, Customer shall pay all premiums and costs in connection
with procuring requested insurance.
9.
Disclaimers; Limitation of Liability.
a. Except as specifically
set forth herein, Company makes no express or implied
warranties in connection with its services;
b. Subject
to "c" below, Customer agrees that in connection
with any and all services performed by the Company, the
Company shall only be liable for its negligent acts, which
are the direct and proximate cause of any injury to Customer,
including loss or damage to Customer's goods, and the
Company shall in no event be liable for the acts of third
parties;
c. In connection
with all services performed by the Company, customer may
obtain additional liability coverage, up to the actual
or declared value of the shipment or transaction, by requesting
such coverage and agreeing to make payment therefore,
which request must be confirmed in writing by the Company
prior to rendering services for the covered transaction(s).
d. In the
absence of additional coverage under "b" above,
the Company's liability shall be limited to the following:
i. Where
the claim arises from activities other than those relating
to customs brokerage, $50.00 per shipment or transaction,
or
ii. Where
the claim arises from activities relating to "Customs
business" $50.00 per entry or the amount of brokerage
fees paid to Company for the entry, whichever is less;
e. In no event
shall Company be liable or responsible for consequential,
indirect, incidental, statutory or punitive damages even
if it has been put on notice of the possibility of such
damages.
10. Advancing
Money. All charges must be paid by Customer
in advance unless the Company agrees in writing to extend
credit to customer; the granting of credit to a Customer
in connection with a particular transaction shall not
be considered a waiver of the provision by the Company.
11. Indemnification/Hold
Harmless. The Customer agrees to indemnify, defend,
and hold theCompany harmless form any claims and/or liability
arising from the importation or exportation of customers
merchandise and/or any conduct of the customer, which
violates any Federal, State and/or other laws, and further
agrees to indemnify and hold the Company harmless against
any and all liability, loss, damages, costs, claims and/or
expenses, including but not limited to reasonable attorney's
fees, which the Company may hereafter incur, suffer or
be required to pay by reason of such claims; in the event
that any claim, suit or proceeding is brought against
the Company, it shall give notice in writing to the Customer
by mail at its address on file with the Company.
12. C.O.D.
or Cash Collect Shipments. Company shall use reasonable
care regarding written instructions relating to "Cash/Collect"
on "Deliver (C.O.D.)" shipments, bank drafts,
cashier's and/or certified checks, letter(s) of credit
and other similar payment documents and/or instructions
regarding collection of monies but shall have not liability
if the bank or consignee refuses to pay for the shipment.
13. Costs
of Collection. In any dispute involving monies owed
to Company, the Company shall be entitled to all costs
of collection, including reasonable attorney's fees and
interest at 15% per annum or the highest rate allowed
by law, whichever is less, unless a lower amount is agreed
to by Company.
14.
General Lien and Right To Sell Customer's Property.
a. Company shall have a general and
continuing lien on any and all property of Customer coming
into Company's actual or constructive possession or control
for monies owed to Company with regard to the shipment
on which the lien is claimed, a prior shipment(s) and/or
both;
b. Company
shall provide written notice to Customer of its intent
to exercise such lien, the exact amount of monies due
and owing, as well as any on-going storage or other charges;
Customer shall notify all parties having an interest in
its shipment(s) of Company's rights and/or the exercise
of such lien.
c. Unless,
within thirty days of receiving notice of lien, Customer
posts cash or letter of credit at sight, or if the amount
due is in dispute, an acceptable bond equal to 110% of
the value of the total amount due, in favor of Company,
guaranteeing payment of the monies owed, plus all storage
charges accrued or to be accrued, Company shall have the
right to sell such shipment(s) at public or private sale
or auction and any net proceeds remaining thereafter shall
be refunded to Customer.
15. No
Duty To Maintain Records For Customer. Customer
acknowledges that pursuant to Sections 508 and 509 of
the Tariff Act, as amended, (19 USC 1508 and 1509) it
has the duty and is solely liable for maintaining all
records required under the Customs and/or other Laws and
Regulations of the United States; unless otherwise agreed
to in writing, the Company shall only keep such records
that it is required to maintain by Statute(s) and/or Regulations(s),
but not act as a "recordkeeper" or "recordkeeping
agent" for Customer.
16. Obtaining
Binding Rulings, Filing Protests, etc. Unless requested
by Customer in writing and agreed to by Company in writing,
Company shall be under no obligation to undertake any
pre- or post Customs release action, including, but not
limited to, obtaining binding rulings, advising of liquidations,
filing of petition(s) and/or protests, etc.
17. Preparation
and Issuance of Bills of Lading. Where Company
prepares and/or issues a bill of lading, company shall
be under no obligation to specify thereon the number of
pieces, packages and/or cartons etc.; unless specifically
requested to do so in writing by Customer or its agent
and customer agrees to pay for same, Company shall rely
upon and use the cargo weight supplied by Customer.
18. No
Modification or Amendment Unless Written. These terms
and conditions of service may only be modified, altered
or amended in writing signed by both Customer and Company;
any attempt to unilaterally modify, alter or amend same
shall be null and void.
19. Compensation
or Company. The compensation of the Company for all
its services shall be included with and is in addition
to the rates and charges of all carriers and all other
agencies selected by the Company to transport and deal
with the goods and such compensation shall be exclusive
of any brokerage, commissions, dividends or other revenue
received by the Company from carriers, insurers and others
in connection with the shipment. On ocean exports,
upon request, the Company shall provide a detailed breakout
of the components of all charges assessed and a true copy
of each pertinent document relating to these charges.
In any referral for collection or action against the Customer
for monies due to the Company, upon recovery by the Company,
the Customer shall pay the expenses of collection and/or
litigation, including a reasonable attorney fee.
20. Severability.
In the event any Paragraph(s) and/or portions(s) hereof
is found to be invalid and/or unenforceable, then in such
event the remainder hereof shall remain in full force
and effect.
21. Governing
Law; Consent to Jurisdiction and Venue. These terms
and conditions of service and the relationship of the
parties shall be construed according to the laws of the
State of Pennsylvania without giving consideration to
principals of conflict of law. Customer and Company.
a. Irrevocably
consent to the jurisdiction of the United States District
Court and the State courts of Pennsylvania.
b.
Agree that any action relating to the services performed
by Company shall only be brought in said courts;
c. Consent
to the exercise of in personam jurisdiction by
said courts over it, and
d.
further agree that any action to enforce a judgment may
be instituted in any jurisdiction.
Approved by the National
Customs Brokers and Forwarders Association of America,
Inc.
(Revised04/00)
