Terms and Conditions of Service
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
governing such services, the Terms and Conditions set forth in such other
document(s) shall govern those services.
1. Definitions. (a) “Company” shall mean C.H. POWELL COMPANY,
its subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which the
Company is rendering service, as well as its agents and/or representatives,
including, but not limited to, shippers, importers, exporters, carriers,
secured parties, warehousemen, buyers and/or sellers, shipper’s agents,
insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to
provide notice and copy(s) of these terms and conditions of service to all such
agents or representatives;
(c) “Documentation” shall mean all information received
directly or indirectly from Customer, whether in paper or electronic form;
(d) “Ocean Transportation Intermediaries” (“OTI”) shall
include an “ocean freight forwarder” and a “non-vessel operating carrier”;
(e) “Third parties” shall include, but not be limited
to, the following: “carriers, truckmen, cartmen, lightermen, forwarders, 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 a 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 a
complete defense to any suit or action commenced by Customer.
(b) All suits 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 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 upon 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 prepared and/or filed with
the Customs Service, 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 from any and all claims asserted and/or liability or losses suffered
by reason of the Customer's failure to disclose information or any incorrect 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 therefor; 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 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 therefor,
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 this provision by the Company.
11. Indemnification/Hold
Harmless. The
Customer agrees to indemnify, defend, and hold the Company harmless from 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 not have 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 18% 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 Regulation(s), but not act as a “recordkeeper” or “recordkeeping agent” for Customer.
16. Obtaining Binding Rulings,
Filing Protests, etc. Unless requested by Customer in writing and agreed to by 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 of Company. The compensation of the Company for its services shall
be included with and is in addition to the rates and charges of all carriers
and other agencies selected by the 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
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 portion(s) hereof is found to be invalid and/or
unenforceable, then in such event the remainder hereof shall remain in full
force and effect.
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
Customer and Company (a) irrevocably consent to the
jurisdiction of the United States District Court and the State courts of Massachusetts;
(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 judgement may be instituted in any
jurisdiction.
Approved
by the National Customs Brokers & Forwarders Association of
