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Approved by the National Customs
Brokers & Forwarders Association of America, Inc. (Revised 6/94)
All shipments to or from the
Customer, which term shall include the exporter, importer, sender,
receiver, owner, consignor, consignee, transferor or transferee
of the shipments, will be handled by the forwarder and/or custom
broker handling this shipment (herein called the "Company")
on the following terms and conditions:
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Services by Third
Parties. Unless
the Company carries, stores or otherwise physically handles
the shipment, and loss, damage, expanse or delay occurs
during such activity, the Company assumes no liability as
a carrier and is not to be held responsible for any loss,
damage, expense or delay to the goods to be forwarded or
imported except as provided in paragraph B and subject to
the limitations of paragraph 8 below, but undertakes only
to use reasonable care in the selection of carriers, truckmen,
lightermen, forwarders, customs brokers, agents, warehousemen
and others to whom it may entrust the goods for transportation,
cartage, handling and/or delivery and/or storage or otherwise.
When the Company carries stores or otherwise physically
handles the shipment, it does so subject to the limitation
of liability set forth in paragraph 8 below unless a separate
bill of lading, air waybill or other contract of carriage
is issued by the Company, in which event the terms thereof
shall govern.
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Liability Limitations
of Third Parties.
The Company is authorized to
select and engage carriers, truckmen, lightermen, forwarders,
customs brokers, agents, warehousemen and others, as required
to transport, store, deal with and deliver the goods, all
of whom shall be considered as the agent of the Customer,
and the goods may be entrusted to such agencies subject
to all conditions as to limitation of liability for loss,
damage, expense or delay to all rules, regulations, requirements
and conditions, whether printed, written or stamped, appearing
in bills of lading, receipts or tariffs issued by such carriers,
truckmen, lightermen, forwarders customs brokers, agents,
warehousemen, and others. The Company shall under no circumstances
be liable for any loss, damage, expense or delay to the
goods for any reason what so ever when said goods are in
custody possession or control of third parties selected
by the Company to forward, enter and clear, transport or
render other services with respect to such goods.
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Choosing Routes
or Agents.
Unless express instructions in writing are received from
the Customer, the Company has complete freedom in choosing
the means, route and procedure to be followed in the handling,
transportation and delivery of the goods. Advice by the
Company to the Customer that a particular person of 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.
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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 and shall not under any circumstances be
binding upon the Company unless the Company in writing specifically
undertakes the handling or transportation of the shipment
at a specific rate.
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Duty to Furnish
Information.
(a) On an import at a reasonable
time prior to entering of the goods for U.S. Customs, the
Customer shall furnish to the Company invoices in proper
form and other documents necessary or useful in the preparation
of the U.S. Customs entry and, also, such further of origin,
the genuineness of the merchandise and any mark or symbol
associated with it, the Customer's right to import and/or
distribute the merchandise, and the merchandise's admissibility,
pursuant to U.S. law or regulation. If the Customer fails
in a timely manner to furnish such information or documents,
in whole or in part as may be required to complete U.S.Customs
entry or comply with U.S. laws or regulations, or if the
information or documents furnished are inaccurate or incomplete,
the Company shall be obligated only to use its best judgment
in connection with the shipment an in no instance shall
e charge with knowledge by the Customer of the true circumstances
to which such inaccurate, incomplete, or omitted information
or document pertains. Where a bond is required by U.S. Customs
to be given for the production of any document or the performance
of any act, the Customer shall be deemed bound by the terms
of the bond not with standing the fact that the bond has
been executed by the Company as principal, it being understood
that the Company entered into such undertaking at the instance
and on behalf of the Customer, and the Customer shall indemnity
and hold the Company harmless for the consequences of any
breach of the terms of the bond. (b) On an export at a reasonable
time prior to the exportation of the shipment the Customer
shall furnish to the Company the commercial invoice in proper
form and number, a proper consular declaration, weights,
measure, values and other information in the language of
and as may be required by the laws and regulations of the
U.S. and the country of destination of the goods. (c) On
an export or import the Company shall not in any way be
responsible or liable for increased duty, penalty, fine
or expense unless caused by the negligence or other fault
of the Company, in which event its liability to the Customer
shall be governed by the provisions of paragraphs 8-9 below.
The Customer shall be bound by and warrant the accuracy
of all invoices, documents and information furnished to
the Company by the Customer or its agent for export, entry
or other purposes and the Customer agrees to indemnify and
hold harmless the Company against any increased duty, penalty,
or expense including attorney's fees, resulting from any
inaccuracy, incomplete statement, omission or any failure
to make timely presentation, even if not due to any negligence
of the Customer.
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Declaring Higher
Valuation.
In as much as truckers, carriers, warehousemen and others
to whom the goods are entrusted usually limit their liability
for loss or damage unless a higher value is declared and
a charge based on such higher value is agreed to by said
truckers, etc., the Company must receive specific written
instructions from the Customer to pay such higher charge
based on valuation and the trucker, etc. subject to the
limitation of liability set forth herein in paragraphs 8-9
below with respect to any claim against the Company and
subject to the provisions of paragraph 2 above.
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Insurance.
The Company
will make reasonable efforts to effect marine, fire, theft,
and other insurance upon the goods only after specific written
instructions have been received by the Company in sufficient
time prior to shipment from point of origin, and the Customer
at the same time states specifically the kind and amount
of insurance to be placed. The Company does not undertake
or warrant that such insurance can or will be placed. Unless
the Customer has its own open manned policy and instructs
the Company to effect insurance under such policy, insurance
is to be effected with one or more insurance companies or
underwriters to be selected by the Company. Any insurance
placed shall be governed by the certificate or policy issued
and will only be effective when accepted by such insurance
companies or underwriters. Should an insurer dispute its
liability for any reason, the insured shall have recourse
against the insurer only and the Company shall not be under
any responsibility or liability in relation there to not
with standing that the premium upon the policy may not be
at the same rates as that charged or paid to the Company
by the Customer, or that the shipment was insured under
a policy in the name of the Company. Insurance premiums
and the charge of the Company for arranging the same shall
be at the Customer's expanse. If for any reason the goods
are held in warehouse, or elsewhere, the same will not be
covered by any insurance, unless the Company receives written
instructions from the Customer. Unless specifically agreed
in writing, the Company assumes no responsibility to affect
insurance on any export or import shipment which it does
not handle.
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Limitation of Liability
for Loss, etc.
(a) The Customer agrees that
the Company shall only be liable for any loss, damage, expense
or delay to the goods resulting from the negligence or other
fault of the Company: such liability shall be limited to
an amount equal to the lesser of fifty dollars ($50.00)
per entry of shipment o the fee(s) charged for services,
provided that, in the case of partial loss, such amount
will be adjusted, pro rate. (b) Where the Company issues
its own bill of lading and receives freight charges as its
compensation, Customer has the option of paying a special
compensation and increasing the limit of Company's liability
up to the shipments actual value; however, such option must
e exercised by written agreement, entered into prior to
any covered transactions(s), setting forth the limit of
the Company's liability and the compensation received; (c)
In stances other than in (b) above, unless the Customer
makes specific written arrangements with the Company to
pay special compensation and declare a higher value and
Company agrees in writing, liability is limited to the amount
set forth in (a) above; (d) Customer agrees that the Company
shall, in no event, be liable for consequential, punitive,
statutory, or special damages in excess of the monetary
limit provided for above.
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Presenting Claims.
The Company
shall not be liable under paragraph 8 for any claims not
presented to it in writing within 90 days of either the
date of loss or incident giving rise to the claim; no suit
to recover for any claim or demand hereunder shall be maintained
against the Company unless instituted within six (6) months
after the presentation of the said claim or such longer
period provided for under statute(s) of the State having
jurisdiction of the matter.
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Advancing Money.
The Company
shall not be obliged to incur any expense, guarantee payment
or advance any money in connection with the importing, forwarding,
transporting, insuring, storing or coopering of the goods,
unless the same is previously provided to the Company by
the Customer on demand. The Company shall be under no obligation
to advance freight charges, customs duties or taxes on any
shipment, nor shall any advance by the Company be construed
as a waiver of the provisions hereof.
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Indemnification
for Freight, Duties.
In the event that a carrier,
other person or any governmental agency makes a claim or
institutes legal action against the Company for ocean or
other freight, duties, fines, penalties, liquidated damages
or other money due arising from a shipment of goods of the
Customer, the Customer agrees to indemnify and hold harmless
the Company for any amount the Company may be required to
pay such carrier, other person or governmental agency together
with reasonable expenses, including attorneys' fees, incurred
by the Company in connection with defending such claim or
legal action and obtaining reimbursement from the Customer.
The confiscation or detention of the goods by any governmental
authority shall not affect or diminish the liability of
the Customer to the Company to pay all charges or other
money due promptly on demand.
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C.O.D. Shipments.
Goods received
with Customer's or other person's instruction to "Collect
on Delivery" (C.O.D.) by drafts or otherwise, or to collect
on any specified terms by time drafts or otherwise, are
accepted by the Company only upon the express understanding
that it will exercise reasonable care in the selection of
a bank correspondent, carrier or agent to whom it will send
such item for collection, and the Company will not be responsible
for any act, omission, default, suspension, insolvency or
want of care, negligence, or fault or such bank, correspondent,
carrier or agent, nor for any delay in remittance lost in
exchange, or during transmission, or while in the course
of collection.
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General Lion on
Any 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 claims or charges, expenses or advances
incurred by the Company in connection with any shipments
of the Customer and if such claim remains unsatisfied for
thirty (30) days after demand for its payment is made, the
Company may sell at public auction or private sale, upon
ten (10) days written notice, registered mail (R.R.R.),
to the Customer, the goods, wares, and/or merchandise, or
so much thereof as may be necessary to satisfy such lien,
and apply the net proceeds of such sales to the payment
of the amount due to the Company. Any surplus from such
sale shall be transmitted to the Customer, and the Customer
shall be liable for any deficiency in the sale.
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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 and other 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.
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No Responsibility
for Governmental Requirements.
It is the responsibility of
the Customer to know and comply with the marking requirements
of the U.S. Customs Service, the regulations of the U.S.
Food and Drug administration, and all other requirements,
including regulations of Federal, state ad/or local agencies
pertaining to the merchandise. The accompany shall not be
responsible for action taken or fines or penalties assessed
by a governmental agency against the shipment because of
the failure of the Customer to comply with the law or the
requirements or regulations of any governmental agency or
with a notification issued to the Customer by any such agency.
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Indemnity Against
Liability Arising from the Importation of Merchandise.
The Customer
agrees to indemnify and hold the Company harmless from any
claims and/or liability arising from the importation of
merchandise which violates any Federal, state and/or other
laws or regulations and further agrees to indemnify and
holds the Company harmless against any and all liability,
loss, damages, costs, claims and/or expanses, including
but not limited to attorney's fees, which the Company may
hereafter incur, suffer or be required to pay be reason
of claims by any government agency or private party. In
the event that any action, suit or proceeding is brought
against the Company by any government agency or any private
party, the Company shall give notice in writing to the Customer
by mail at its address on file with Company. Upon receipt
of such notice, the Customer at its own expense shall defend
against such action and take all steps as may be necessary
or proper to prevent the obtaining of a judgement and/or
order against the Company.
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Loss, Damage or
Expense Due to Delay.
Unless the services to be performed
by the Company on behalf of the Customer are delayed by
reason of the negligence or other fault of the Company,
the Company shall not be responsible for any loss, damage
or expense incurred by the in accordance with the provisions
of paragraphs 8-9 above.
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Construction of
Terms and Venue.
The foregoing terms and conditions
shall be construed according to the laws of the State of
North Carolina. Unless otherwise consented to in writing
by the Company no legal proceeding against the Company may
be instituted by the Customer, its assigns or subrogee except
in the City of Raleigh.
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