“ImEx Cargo’s services are provided subject to our Terms & Conditions of Service. These terms govern services arranged or performed by ImEx Cargo, including services involving third-party carriers and transportation providers.”
NCBFAA TERMS & 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.
- DEFINITIONS
(a) “Company” shall mean ImEx Cargo, its subsidiaries, related companies, agents and/or representatives.
(b) “Customer” shall mean the person for whom the Company is rendering services, 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 copies of these Terms and Conditions of Service to all such agents or representatives.
(c) “Documentation” shall mean all information received directly or indirectly from the Customer, whether in paper or electronic form.
(d) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel-operating common carrier.”
(e) “Third parties” shall include, but not be limited to, carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to whom the goods are entrusted for transportation, cartage, handling, delivery, storage or otherwise.
- 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, securing export licenses, filing export and security documentation on behalf of the Customer and other dealings with government agencies. The Company may also arrange transportation or other logistics services in any capacity other than as a carrier.
- 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 thirty (30) days of the event giving rise to the claim. Failure to provide the Company with timely notice shall be a complete defense to any suit or action commenced by the Customer.
(b) All suits against the Company must be filed and properly served on the Company as follows:
(i) For claims arising out of ocean transportation, within one year from the date of the loss;
(ii) For claims arising out of air transportation, within one year from the date of the loss;
(iii) For claims arising out of the preparation and/or submission of an import entry or entries, within sixty (60) days from the date of liquidation of the entry or entries; and
(iv) For any and all other claims, within one year from the date of the loss or damage.
- 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, the Company shall use reasonable care in selecting third parties and 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.
The Company does not assume responsibility or liability for any actions and/or inactions of such third parties or their agents. The Company shall not be liable for any delay or loss of any kind that 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. The Customer shall be liable for any charges or costs incurred by the Company.
- QUOTATIONS NOT BINDING
Quotations concerning fees, rates of duty, freight charges, insurance premiums or other charges provided 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 agrees in writing 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 upon between the Company and the Customer.
- RELIANCE ON INFORMATION FURNISHED
(a) The Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, other government agencies and/or third parties. The Customer shall immediately advise the Company of any errors, discrepancies, incorrect statements or omissions in any declaration or other submission filed on the Customer’s behalf.
(b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, the Company relies on the accuracy of all documentation and information furnished by the Customer, whether in written or electronic form.
The Customer shall use reasonable care to ensure the accuracy of all such information and shall indemnify and hold the Company harmless from any and all claims asserted, liability or losses suffered because of the Customer’s failure to disclose information or any incorrect, incomplete or false statement made by the Customer or its agent, representative or contractor upon which the Company reasonably relied.
The Customer agrees that it has an affirmative, non-delegable duty to disclose any and all information required to import, export or enter the goods.
- DECLARING HIGHER VALUE TO THIRD PARTIES
Third parties to whom the goods are entrusted may limit their liability for loss or damage.
The Company will request excess valuation coverage only upon specific written instructions from the Customer, who must agree to pay any associated charges.
Therefore, in the absence of written instructions or if the third party refuses to agree to a higher declared value, the goods may, at the Company’s discretion, be tendered to the third party subject to the third party’s limitations of liability and/or terms and conditions of service.
- INSURANCE
Unless requested to do so in writing and confirmed to the Customer in writing, the Company is under no obligation to procure insurance on the Customer’s behalf.
In all cases, the Customer shall pay all premiums and costs associated with procuring the requested insurance.
- DISCLAIMERS; LIMITATION OF LIABILITY
(a) Except as specifically set forth herein, the Company makes no express or implied warranties in connection with its services.
(b) In connection with all services performed by the Company, the 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 for it. The request must be confirmed in writing by the Company before services are rendered for the covered transaction(s).
(c) In the absence of additional coverage under subsection (b), the Company’s liability shall be limited as follows:
(i) Where the claim arises from activities other than those relating to customs business, the Company’s liability shall be limited to $50 per shipment or transaction; or
(ii) Where the claim arises from activities relating to “customs business,” the Company’s liability shall be limited to $50 per entry or the amount of brokerage fees paid to the Company for the entry, whichever is less.
(d) In no event shall the Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been notified of the possibility of such damages, or for the acts of third parties.
- ADVANCING MONEY
All charges must be paid by the Customer in advance unless the Company agrees in writing to extend credit to the 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.
- INDEMNIFICATION/HOLD HARMLESS
The Customer agrees to indemnify, defend and hold the Company harmless from any claims, liability, fines, penalties and/or attorneys’ fees arising from the importation or exportation of the Customer’s merchandise and/or any conduct of the Customer.
This includes, but is not limited to, inaccurate entry, export or security data supplied by the Customer or its agent or representative that violates any federal, state and/or other laws.
The Customer further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including, but not limited to, reasonable attorneys’ fees, which the Company may incur, suffer or be required to pay because of such claims.
If any claim, suit or proceeding is brought against the Company, the Company shall provide written notice to the Customer by mail at the Customer’s address on file with the Company.
- C.O.D. OR CASH COLLECT SHIPMENTS
The Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Delivery (C.O.D.)” shipments, bank drafts, cashier’s checks, certified checks, letters of credit and other similar payment documents and/or instructions regarding the collection of monies.
However, the Company shall not be liable if the bank or consignee refuses to pay for the shipment.
- COSTS OF COLLECTION
In any dispute involving monies owed to the Company, the Company shall be entitled to all costs of collection, including reasonable attorneys’ fees and interest at 10% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by the Company.
- GENERAL LIEN AND RIGHT TO SELL CUSTOMER’S PROPERTY
(a) The Company shall have a general and continuing lien on any and all property of the Customer coming into the Company’s actual or constructive possession or control for monies owed to the Company with regard to the shipment on which the lien is claimed, prior shipments and/or both.
(b) The Company shall provide written notice to the Customer of its intent to exercise such lien, the exact amount of monies due and owing and any ongoing storage or other charges.
The Customer shall notify all parties having an interest in its shipment(s) of the Company’s rights and/or exercise of such lien.
(c) Unless, within thirty (30) days of receiving notice of the lien, the Customer posts cash, a letter of credit at sight or, if the amount due is disputed, an acceptable bond equal to 110% of the total amount due in favor of the Company—guaranteeing payment of the monies owed plus all storage charges accrued or to be accrued—the Company shall have the right to sell such shipment(s) at a public or private sale or auction.
Any net proceeds remaining after the sale shall be refunded to the Customer.
- NO DUTY TO MAINTAIN RECORDS FOR THE CUSTOMER
The Customer acknowledges that, pursuant to Sections 508 and 509 of the Tariff Act, as amended (19 U.S.C. §§ 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 maintain only those records that it is required to maintain by statute and/or regulation. The Company shall not act as a “recordkeeper” or “recordkeeping agent” for the Customer.
- OBTAINING BINDING RULINGS, FILING PROTESTS, ETC.
Unless requested by the Customer in writing and agreed to by the Company in writing, the 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 and filing petitions and/or protests.
- PREPARATION AND ISSUANCE OF BILLS OF LADING
Where the Company prepares and/or issues a bill of lading, the Company shall be under no obligation to specify the number of pieces, packages, cartons or other units thereon.
Unless specifically requested to do so in writing by the Customer or its agent, and the Customer agrees to pay for the same, the Company shall rely upon and use the cargo weight supplied by the Customer.
- NO MODIFICATION OR AMENDMENT UNLESS WRITTEN
These Terms and Conditions of Service may only be modified, altered or amended through a written document signed by both the Customer and the Company.
Any attempt to unilaterally modify, alter or amend these Terms and Conditions shall be null and void.
- COMPENSATION OF THE COMPANY
The Company’s compensation for its services shall be included with, and shall be in addition to, the rates and charges of all carriers and other agencies selected by the Company to transport and handle the goods.
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.
For ocean exports, the Company shall, upon request, provide a detailed breakdown of the components of all charges assessed and a true copy of each pertinent document relating to those charges.
In any referral for collection or action against the Customer for monies due to the Company, the Customer shall, upon recovery by the Company, pay the expenses of collection and/or litigation, including reasonable attorneys’ fees.
- FORCE MAJEURE
The 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 the Company or its subcontractors, including, but not limited to:
(i) Acts of God, including floods, earthquakes, storms, hurricanes, power failures or other natural disasters;
(ii) War, hijacking, robbery, theft or terrorist activities;
(iii) Incidents involving or deterioration of the 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 the 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 the denial or cancellation of any import, export or other necessary license; or
(ix) Strikes, lockouts or other labor conflicts.
- SEVERABILITY
If any paragraph and/or portion of these Terms and Conditions is found to be invalid and/or unenforceable, the remainder shall remain in full force and effect.
The Company’s decision to waive any provision herein, whether by conduct or otherwise, shall not be deemed a further or continuing waiver of such provision or a waiver or invalidation of any other provision.
- 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 laws.
The Customer and the 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 the Company shall only be brought in such courts;
(c) Consent to the exercise of personal jurisdiction by such courts; and
(d) 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. (Revised 02/13)