C.H. Powell Company Terms & Conditions of Service

These terms and conditions of service constitute a legally binding contract between the "Company" and the "Customer" and shall apply to all services by the Company. If 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 to the extent not inconsistent with these terms and conditions of service.

1. Definitions.

(a)    "Company" shall mean C.H. POWELL COMPANY, its subsidiaries, related companies, agents, contractors and/or representatives;

(b)    "Customer" shall mean the person for which the Company is rendering service, as well as its principals, 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 may provide services to Customer as principal or Agent, and these terms and conditions apply in either case. The Company acts as the "agent" of the Customer in all cases, except (a) where it issues a transport document evidencing its specific obligation to deliver goods and then only to the extent set forth in such transport document of (b) to the extent the Company physically handles the goods by its own employees and equipment in the performance of any service.

3. Limitation of Actions.

(a)    Unless subject to a specific statute or international convention of mandatory application, 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 one (1) year 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 U.S. Customs & Border Protection, other governmental authority and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on Customers behalf;

(b)   In performing services for Customer, including but not limited to preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, the Company relies on the correctness and completeness of all documentation, whether in written or electronic format,  all information furnished by Customer and all of Customer’s instructions or requests; Customer is responsible for  the correctness and completeness of all such documentation, information, instructions and requests and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of any inaccuracies or omissions  upon which the Company --- justifiably relied. The Customer has an affirmative non-delegable duty to disclose any and all information required to transport, 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 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)   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).

(c)   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 business, $100.00 per shipment or transaction, 

                               ii.   or where the claim arises from activities relating to "Customs business," $100.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;

(d)    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, or for the acts of third parties.

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 and hold harmless the Company from and against all charges, claims, damages, liabilities, costs, expenses or other payments or losses (including purchase price, freight, storage, demurrage, detention, duties, taxes, fines, penalties, consequential or exemplary damages, and the Company’s litigation expenses and reasonable attorneys’ fees) incurred by the Company in connection with or arising from (a) any failure of the Customer to pay or perform its obligations to the Company or to any third party (including any carrier, vendor, governmental authority or other person of organization), including for any violation of law, and/or (b)  the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or other laws.

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. When goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or other persons, the Customer remains responsible for same if the consignee or other person fails to pay.

13. Costs of Collection. If Customer fails to keep its account current, all amounts become due and payable immediately, plus interest at 18% per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company. Customer shall pay all costs, expenses and fees (including reasonable counsel fees) incurred by the Company in connection with the enforcement of payment of any obligations or indebtedness of Customer, including by any action or participation in, or in connection with, a case or proceeding under any Chapter of the U.S. Bankruptcy Code, any successor statute thereto, or under any other bankruptcy or insolvency law, wherever pending.

14. General Lien and Right To Sell Customer's Property. The Company shall have a general lien on any and all property (and documents relating thereto) of the Customer in its possession, custody or control or en route, for all existing and future indebtedness and obligations of the Customer to the Company. This lien is in addition to any other rights the Company may have under other agreements or applicable law and shall survive delivery or release of any property. If any such indebtedness or obligation remains unsatisfied, then in addition to all other rights and remedies under other agreements or applicable laws, the Company may exercise all of the rights and remedies of a secured creditor under the Uniform Commercial Code. Any notice required to be given of any sale or other disposition made by at least ten (10) days prior to any proposed action constitutes fair and reasonable notice. Any surplus from any sale, after deduction for all sums owed by the Customer to the Company, shall be transmitted to the Customer, and the Customer shall be liable for any deficiency.

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. Modification, Amendment and Waiver. Notwithstanding any course of dealing or course of performance, (a) neither failure nor delay on the part of the Company to exercise any right, power or privilege under these terms and conditions shall operate as a waiver thereof, (b) no single or partial exercise of any right, power or privilege under these terms and conditions of service shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege, (c) no notice to or demand upon Customer shall be deemed to be a waiver of the obligation of the Customer or of the right of the Company to take further action without notice or demand. The Company may modify these terms and conditions by publishing same on the Company’s website www.chpowell.com and providing a copy to Customer sent by mail to its address of record or electronically to designated recipient, changes to become effective thirty (30) days after publication.

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. All amounts owed to the Company shall be paid in the lawful currency specified by the Company’s invoices in immediately available funds, without abatement, counterclaim or set-off and free and clear of, and without any deduction or withholding for, any taxes or other matters.

20. Force Majeure. Company shall not be liable for losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or in part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or its sub-contractors, including but not limited to: (i) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster; (ii) war, hijacking, robbery, theft or terrorist activities; (iii) incidents or deteriorations to means of transportation, (iv) embargoes, (v) civil commotions or riots, (vi) defects, nature or inherent vice of the goods; (vii) acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else who may have an interest in the shipment, (viii) acts  by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or (ix) strikes, lockouts or other labor conflicts. 

21. 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. Company's decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.

22. 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 Commonwealth of Massachusetts without giving consideration to principles of conflict of law.

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 judgment may be instituted in any jurisdiction.

©The National Customs Brokers and Forwarders Association of America, Inc. (Revised)