Unless otherwise agreed in a signed bilateral contract, this Master Services Agreement, together with applicable Specific Service Terms and Conditions by mode or service set forth incorporate the entire agreement between RICOH LOGISTICS CORPORATION and its affiliates, (“RLUS”) and its Customer for any of the logistics services or multimodal transportation identified herein, including:
RLUS undertakes to arrange for ocean, air and motor transportation and/or transloading and warehousing of the goods, retaining qualified carriers and subcontractors.
Pursuant to these terms and conditions RLUS neither owns nor operates ships, aircraft, trucks or other conveyances that actually transport the goods unless by separate written undertaking. Customer understands that different limits of cargo liability apply by statute, international treaty, and custom and usage for different modes of service and accordingly the potentially less than full actual value limits of liability set forth in RLUS Specific Service Terms and Conditions shall apply to it and its retained service providers.
Cargo Insurance
The Customer understands and agrees that the rates do not include insurance or other compensation for loss, other than as expressly provided herein and limited hereby.
Accordingly, the Shipper or Consignee agrees that in the event it desires coverage for loss, it will obtain insurance, and that said insurance will contain a waiver of subrogation clause waiving any subrogation rights (for and on behalf of such insurance carrier). In the event that the Shipper or Consignee fails to obtain a waiver of subrogation, the Shipper or Consignee will defend, indemnify and hold harmless RLUS and any carrier(s) retained by it with respect to claims made by the Shipper or Consignee or third parties acting as subrogees of the Shipper or Consignee.
RLUS can assist a customer, upon the customer’s request, with the placement of cargo insurance. RLUS is not an insurance company or insurance broker. Unless requested by a customer to do so in writing and confirmed to customer, RLUS is under no obligation to procure insurance on a customer’s behalf. Additional information concerning cargo insurance, insurance deductibles, policy exclusions, and excluded commodities are available upon request.
Term of Agreement and Termination
The terms of this Agreement shall apply commencing upon the execution of same by the parties or upon Customer’s request for services and RLUS’s acceptance of same, whichever comes first. This Agreement shall remain in force thereafter until termination or delivery of any shipment(s) then in progress and payment in full for said shipment(s), or if no shipment is pending, upon 30 days’ written notice to the other party.
Rates and Payment
RLUS shall charge rates for services inclusive of charges payable to its retained service providers which will be made available to Customer upon request at time of the Customer’s service request.
Payment Terms
Customer shall pay RLUS for all charges applicable to services rendered without setoff within the time period set forth as the due date. Any objection to the rates and charges for services rendered must be submitted in writing within 10 days of receipt of invoice or shall be waived. Interest on payments which are due but which have not been made shall accrue at current maximum, legally allowed rate in the applicable state, from date due until paid in full.
Lien
In addition to other lien rights provided by law, RLUS or its affiliates or its service providers shall have a contractual lien on any cargo in its possession or the possession of its service providers for the payment of freight charges past and present which may be exercised in the event of Customer’s default.
Services
By Customer’s tender of goods to RLUS, Customer agrees to the terms of this Agreement, and mode‐specific service terms and documents incorporated by reference. Customer understands that from time to time RLUS may change its terms and conditions. At RLUS’s election, Customer may be notified of such changes by electronic mail or by other means. If Customer initiates any service after the date of such change, then by such initiation of such services, Customer accepts and agrees with the terms and conditions then in effect. Any additional or contradictory terms contained in any document issued by Customer are hereby rejected and of no effect.
Hazardous Materials
Customer and/or the consignor warrants that all shipments shall comply with all applicable hazardous materials rules and regulations for the applicable mode of transport and all other health, safety and security regulations. All shipments shall be properly packaged, marked and labeled, and clearly identified. No dangerous goods shall be tendered to RLUS for transportation, handling, or storage without prior written agreement of RLUS. Customer agrees that RLUS is authorized to inspect and screen all cargo, rejecting and returning at Customer’s expense any shipment tendered to it in violation of the warranties contained herein.
RLUS and its retained service providers reserve the right to open, inspect, and re‐seal any cargo tendered pursuant to this Master Services Agreement without incurring fine or liability. This right shall be exercised upon probable cause or as required by applicable safety and security regulations and requirements, or as required by law, by governmental authorities, or by applicable customs, safety and security regulations, or requirements.
Customer and/or consignor shall indemnify and hold harmless RLUS and all service providers from any liability, loss, damage, fine, or suit arising from breach of the warranties set forth herein.
Customer Warranties; Inspection of Shipments
RLUS is a TSA-compliant IAC retaining ground service providers pursuant to approved protocols. Customer warrants that it is solely responsible for properly identifying and credentialing the consignor and ensuring that all cargo is properly identified, marked and labeled, indemnifying and holding harmless RLUS and its service providers from any fine, claim or cause of action arising from breach of this warranty. RLUS has the right to reject, and return to Customer at Customer’s expense, any shipment tendered to it in violation of the Customer’s warranties as set forth herein. Customer agrees that RLUS is allowed to inspect, through physical or any other means, any shipment tendered to RLUS for transport, handling or storage, including shipments in sealed packaging. Neither RLUS nor its service providers shall be liable for any damage to cargo arising from TSA‐mandated inspection of cargo prior to transportation by air.
Additional Customer Warranties
Customer warrants that it is the beneficial owner or agent authorized to bind the beneficial owner with respect to all terms and conditions in this contract. Customer shall indemnify and hold harmless RLUS and its service providers from any liability or claim (including cargo) brought by the beneficial owner or its insurer which exceeds the contractual undertakings of RLUS and its service providers as set forth herein and in the applicable specific service terms and conditions.
Customer, Shipper and consignee shall be jointly and severally liable to pay and indemnify RLUS for all costs, including but not limited to, claims, fines, penalties, and attorneys’ fees incurred by RLUS by reason of any violation of these service conditions.
Customer agrees to comply with all applicable laws and government regulations of any country to, from, through, or over which its goods may be carried, including those relating to the packing, carriage, or delivery of goods, and shall furnish such information to RLUS as is necessary to comply with such laws and regulations. Shipments covered by RLUS’s terms and conditions are prohibited if diverted contrary to U.S. laws. Customer, and the person or entity that originates and tenders goods for handling or transport, hereby consent to an inspection of the cargo.
Customer specifically warrants that it shall not tender or cause to be tendered to RLUS any shipment containing explosives, destructive devices, hazardous materials, any controlled substances, or illegal items, including coins and currency, for transport, handling, or storage. In the event RLUS discovers such items in Customer’s cargo, Customer understands that the discovery of such items will cause the shipment to be seized by authorities and/or delay the shipment in violation of Customer’s warranties and due to no fault of RLUS. RLUS has the right to reject and return, at Customer’s expense, any shipment tendered to it in violation of Customer’s warranties herein.
Indemnification Obligations of RLUS
Each party shall indemnify, defend and hold harmless the other, its successors and assigns, and their respective affiliates, employees, directors, officers, owners, representatives and agents from any and all losses, claims, demands, damages, liabilities, obligations, costs and/or expenses, including, without limitation, reasonable attorneys’ fees to the extent caused by any negligent or willful act or omission of the indemnitor, its employees or agents. RLUS warrants that motor carriers retained by it hold insurance as required by federal statute and that such insurance will insure to Customer’s benefit. RLUS warrants that upon payment of applicable charges by Customer, RLUS will pay all relevant service providers retained by it and thereafter indemnify and hold harmless Customer, consignor and consignee from any liability for payment of freight charges to contracted parties.
Liabilities Not Assumed
RLUS shall not be liable for any damages, whether direct, incidental, punitive, exemplary, special or consequential, in excess of the Declared Value of a shipment, in any event, and including, but not limited to, damages resulting in loss of income or profits, whether or not either party had known that such consequential damages might occur.
RLUS will not be liable for nor shall any adjustment, refund or credit of any kind be made as a result of any loss, damage, delay, miss‐delivery, non‐delivery, misinformation or any failure to provide information, except such as may result from RLUS’s sole negligence. However, in no event will RLUS be liable for any such loss, damage, delay, miss‐delivery, non‐delivery, misinformation or failure to provide information caused by or resulting in whole or part from:
Complete Agreement
This Master Services Agreement and the Specific Service Terms and Conditions contain the entire Agreement between the parties, any prior written or oral representations or agreements are superseded and of no effect and in the case of conflict between this Agreement and any shipping document, tariff or other document issued by RLUS, its service provider or third parties, this Agreement and mode Specific Service Terms and Conditions shall control. No employee or service provider of RLUS shall have the power to waive or vary any of the contract terms and conditions of this Agreement or the Specific Service Terms and Conditions unless a duly authorized officer of RLUS, in writing, has specifically authorized such waiver or variation.
Waiver of Client Confidentiality
Notwithstanding any other provision in this Agreement, the Customer acknowledges and agrees that in relation to the services performed by the Company under this Agreement, the confidentiality provisions provided for under 19 CFR 111.24 (“Regulation”) are hereby waived.
The Customer explicitly authorizes the Company to use, disclose, or handle the records and information as may be necessary or desired for the performance of the services under this Agreement, or as may be required by other applicable law or legal process.
The Customer shall indemnify and hold the Company harmless from any claims, damages, or liabilities that may arise as a result of this waiver.
Venue and Jurisdiction
This Agreement shall be governed by general principles of federal transportation law except to the extent waived by inconsistent provisions herein and the laws of the State of New York (see 49 U.S.C. 14101(b)). The parties agree that venue and jurisdiction shall lie in the applicable federal or state courts for New York County, New York.
Customer agrees to submit to the personal jurisdiction of such courts and hereby waives any jurisdictional venue or forum nonconvenience objections to such courts.
WHEREFORE, the parties have caused their representatives to execute this Agreement and manifest their asset to its terms as follows:
RICOH LOGISTICS CORPORATION
By:
Its:
Dated:
CUSTOMER
By:
Its:
Dated:
Acting as a property broker authorized by the Federal Motor Carrier Safety Administration (FMCSA) to conduct operations in Docket No. MC# 842619, RLUS upon request, will arrange for expedited and substituted motor for air LTL service utilizing licensed, authorized and insured motor carriers in compliance with regulations issued by the FMCSA.
Application of Service Conditions
These Service Conditions shall apply when RLUS, a licensed property broker, undertakes to arrange for the surface transportation in interstate commerce of truckload and expedited LTL shipments utilizing selected and qualified Transportation Service Providers (“TSP” or “carriers”). The transportation is furnished by carriers selected by and under contract with RLUS. The following Service Conditions are applicable to the transportation of any shipment tendered to RLUS for movement by one or more of its contracted carriers.
These Service Conditions supersede all previous Service Conditions and other prior statements concerning the rates and conditions of RLUS service. Rates and service quotations by our employees and agents will be based upon information provided by customer, but final rates and service may vary based upon the shipment actually tendered and the application of the Service Conditions herein. Any conflict or inconsistency between any other written or oral statements concerning the rates, features of service, products and Service Conditions applicable to RLUS service will be controlled by the RLUS Uniform Shipping Confirmation and these Service Conditions, as modified, amended or supplemented by RLUS from time to time. RLUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED. Monetary amounts stated in these Service Conditions refer to U.S. dollars.
Other Bills of Lading or Shipping Documents
Any bill of lading or shipping document which is inconsistent with the transportation contract and receipt for goods published in these Service Terms and Conditions shall be executed for convenience only and shall be invalid to the extent it conflicts with the terms and conditions. Driver employees of RLUS’s qualified service providers are not authorized to bind RLUS or its carriers to different terms and conditions. The uniform bill of lading terms and conditions should apply to the extent not inconsistent with this agreement.
These service conditions and limitations shall apply notwithstanding the issuance of any other air waybill or bill of lading by any party tendering a shipment to carrier. The party tendering shipments to RLUS shall indemnify and hold RLUS and its carriers harmless from any demand or obligation which exceeds those set forth herein.
Cargo Loss or Damage
Liability for loss or damage as applicable to RLUS acting as a property broker and its carriers is governed by this provision.
Acting as a property broker, RLUS accepts no liability for cargo loss, damage or delay. All cargo claims shall be filed by customer or beneficial owner with the carrier retained by RLUS and in possession of the cargo at the time of the loss.
RLUS shall retain licensed authorized and insured motor carriers acting as independent contractors to render transportation services to customers as set forth on its load confirmation sheet unless otherwise agreed in writing. Customer is advised that its retained carriers contractually limit their liability for loss, damage or delay on expedited and substituted motor for air LTL shipments to $.50 per pound. Higher limits may be obtained only by special arrangement before tender, confirmed in a signed written agreement.
In the event the party tendering shipment to RLUS requires greater limits of liability pursuant to a through air bill by contract or otherwise, Customer shall assume sole responsibility for the liability to the extent it exceeds the agreed limitation and shall indemnify RLUS and its carriers, and shall waive subrogation with respect to any insurance purchased to provide excess liability coverage.
Where a forwarder, broker, or logistics provider has agreed to higher limits of liability with its shipper in tendering shipments to RLUS, it agrees RLUS as a property broker shall have no liability for cargo loss and its carriers’ liability shall not exceed the released rate limitation set forth herein and that it will indemnify and hold harmless RLUS and its carriers from all claims, including attorney’s fees, in the event that amounts greater than agreed to herein are so ought.
Commodities Not Accepted for Transport
Items of a fragile nature shall not be accepted for carriage unless agreed to in writing by a RLUS corporate officer. Such items shall include but not be limited to: statues of any kind, antiques of any kind, glass, crystal ware, glass bottled goods, china, clocks, stoneware, pottery, earthenware, marble and marble tiles, lighting fixtures with or without bulbs, electric bulbs, vacuum flasks, vitreous enameled objects, cast iron objects, bricks, firebricks, crucibles, asbestos, cement products, carborundum wheels, personal effects, jewelry, antiques, works of arts, or intangibles, and radio/TV/cathode ray and similar transmitting or receiving tubes, or coin and currency. Items of a fragile nature that may be inadvertently accepted without the written approval of a RLUS corporate officer shall still be subject to all terms and conditions, including but not limited to limitations of liability, whether or not any declared value is made.
Reasonable Dispatch
No time is fixed for the completion of carriage, and neither RLUS nor its carriers shall be liable for any loss or damage caused by failure to commence or complete carriage within a certain time. RLUS and its carriers assume no obligation to carry goods over any particular route. RLUS and its carriers assume no obligation to carry the goods in any particular vehicle, and are authorized to select alternate means of transportation and deviation from route without liability.
No Special Damages
Neither RLUS nor its carriers shall have any liability for any special or consequential damages. Shipments shall be governed by the Carmack Amendment, Title 49 U.S.C. Section 14706, and the release rate provisions contained herein shall be construed as complying with the notice, election of rates, and other requirements.
Pursuant to Title 49 U.S.C. Section 14101(b), Customer agrees that all rules and regulations which are waivable under that statute shall not apply to RLUS or its retained service providers to the extent inconsistent with the contractual service terms and conditions set forth herein.
Claims Handling‐Time Limits and Procedures
Cargo claims shall be filed with the motor carrier in accordance with the terms of the uniform bill of lading, 49 CFR 370.
RLUS warrants payment of claims for which its retained service providers are adjudged legally liable subject to the limits of liability contained herein. As a property broker, RLUS shall have no direct liability for cargo loss, damage, or delay.
Choice of Law
These Service Conditions and the relationship of the parties shall be construed according to the laws of the State of New York without giving consideration to principles of conflict of law.
Customer and RLUS
Acting as an NVOCC (Non‐Vessel Operating Common Carrier) authorized by the FMC (Federal Maritime Commission) to conduct operations at Docket No. 003944NF, RLUS holds out to arrange for the through ocean movement of containers in international commerce.
Acting as a licensed Ocean Freight Forwarder, RLUS, acting as its customer’s agent, will arrange for international transportation by sea including inland services at charges to be determined pursuant to the NCBFAA Terms and Conditions of Service set forth in the Forms section herein.
All service is provided in accordance with tariffs available upon request and pursuant to RLUS’s Combined Ocean Bill of Lading terms and conditions.
The terms and conditions of this applicable Combined Ocean Bill of Lading shall apply regardless of when and if the document is issued. Service is provided on both a port‐to‐port and door‐to‐ door basis. The applicable bill of lading terms and conditions contain Himalaya and Clause Paramount provisions pursuant to which pickup and delivery of containers is extended inland by truck as part of RLUS Shipping’s NVOCC services when requested.
All door‐to‐door pricing is inclusive of ocean and dray line haul charges and does not include demurrage or per diem and other accessorial charges which are the responsibility of the customer and which will be billed separately.
All services provided by RLUS Shipping pursuant to these Specific Terms and Conditions are subject to the terms and conditions of the Master Services Agreement, customer representations, warranties, payment terms, and duties and obligations set forth therein.
Cargo Liability
RLUS’s maximum liability for cargo loss or damage and liability of its retained ocean service provider is the package limitations set forth in the United States Carriage Of Goods by Sea Act (“COGSA”) or $500 per package, or the actual value of the items lost or damaged in transit, whichever is less. Where items are consolidated for shipping purposes into larger packages or shipping units as reflected on the piece count of the ocean bill of lading, the aggregated number of larger consolidated units shall constitute a “package” for the COGSA limitations.
As a TSA registered and compliant Indirect Air Carrier (IAC), RLUS holds out to provide both foreign and domestic air freight forwarding services subject to the provisions of these Service Conditions. RLUS warrants it is compliant with applicable supply chain security requirements with respect to shipments having a prior or subsequent shipment by air and that it will arrange for transportation utilizing only properly qualified ground and air service providers.
Hazardous goods which do not comply with Federal Aviation Administration (FAA) and Transportation Security Administration (TSA) requirements for shipment by air shall not be accepted. Customer, in compliance with law and regulations governing the transportation of such goods, shall have all shipments properly packed, distinctly marked and labeled, and shall notify RLUS in writing of their proper description, nature, and necessary precautions. Customer shall indemnify and hold harmless RLUS and its service providers against any and all loss, damage, liability, expense and fine, including without limitation, attorney’s fees that are incurred and arise out of or are in any way connected with or caused by in whole or in part, the omission of full disclosure required by this clause or any applicable treaty, convention, laws, code, or regulation. All shipments shall be transported pursuant to the current IATA Air Waybill.
Customer shall comply with all regulations and requirements of U.S. Customs and Border Protection authorities and shall pay all duties, taxes, import taxes, fines, and losses incurred including full return freight for goods to place of delivery incurred or sustained by reason of failure to comply or by reason of any illegally incorrect or insufficient marketing number or addressing of goods.
TSA and FAA Compliance
RLUS is a TSA-compliant IAC retaining ground service providers pursuant to approved protocols. Customer warrants that it is solely responsible for properly identifying and credentialing the consignor and ensuring that all cargo is properly identified, marked and labeled, indemnifying and holding harmless RLUS and its service providers from any fine, claim or cause of action arising from breach of this warranty. RLUS has the right to reject, and return to Customer at Customer’s expense, any shipment tendered to it in violation of the Customer’s warranties as set forth herein. Customer agrees that RLUS is allowed to inspect, through physical or any other means, any shipment tendered to RLUS for transport, handling or storage, including shipments in sealed packaging. Neither RLUS nor its service providers shall be liable for any damage to cargo arising from TSA‐mandated inspection of cargo prior to transportation by air.
Domestic Air Freight
Customer understands that domestic air freight, while not subject to imposed liability regimes by state or treaty, is subject to custom and usage in the industry, and standardized pricing which limits forwarders and service providers’ liability for loss, damage or unreasonable delay to 50¢ per pound or $500 per article, whichever is less. Customer accepts this limit of liability for all domestic air freight shipments tendered to forwarder regardless of whether the loss, damage or delay occurs while the shipment is in the possession and control of an air service provider, ancillary air service provider or pickup and delivery motor carrier.
International Air Shipments
Liability regimes for international air freight are governed by different treaty obligations depending upon the country of origin and destination and the applicable treaty and limitations thereto will apply to international air shipments arranged by RLUS. Most industrial nations have adopted the so‐called Montreal Protocol which limits the shipper’s recovery to 19 Special Drawing Rights per kilo. In tendering shipments to RLUS, Customer represents that it is a sophisticated shipper aware of the limitations of cargo liability applicable by international treaty to the cargo being shipped and accordingly indemnifies and holds harmless RLUS and its service providers against any claim for loss, damage or delay which exceeds the limitations of liability imposed by applicable treaty at the time of tender.
Weights and Measures
Unless specifically otherwise agreed to in writing, RLUS retains the right to re‐weigh and/or measure, for the purpose of applying correct charges, any shipment(s) at any time while in RLUS’s custody and control, and to collect the appropriate charges without first advising, reporting back to, pre‐alerting, or otherwise notifying the Shipper, Consignee or other interested party. RLUS reserves the right to assess transportation charges based on volumetric standards. Dimensional weight pricing is applicable on all shipments with a total volume of more than 194 cubic inches. Dimensional weight is calculated by multiplying length by width by height of each package (all in inches) and dividing by 194. The dimensional weight of each package in the shipment is added, and the total dimensional weight of the shipment is then compared to the actual weight of the shipment. If the dimensional weight exceeds the actual weight, transportation charges for the shipment are based on the dimensional weight.
“Transloading” is defined as activities performed in the loading, unloading or transfer of a product using non‐motor carrier equipment types. Examples of equipment used in transloading include cranes, forklifts, boom trucks, etc. Transloading can include short term storage of less than 30 days outside or inside of a facility.
Where transloading and/or warehousing services are provided, liability for cargo loss or damage shall be limited to the terms and conditions of each applicable transloader or warehouse provider used by RLUS unless Customer
1) declares a value and requests a higher limit of liability in writing and
2) receives a rate quotation from RLUS which expressly contemplates the higher valuation.
Customer is advised to obtain its own property insurance and to waive subrogation for any high value shipment. RLUS acts as a disclosed agent for the shipper which authorizes us to procure services at the lowest available release rate unless otherwise agreed to in writing.
Unless cargo is stored in transit for RLUS’s convenience pursuant to Service by Land, Service by Sea, or Service by Air Specific Service Terms and Conditions provided herein, all property received for storage or packing and crating shall be governed by the Master Services Agreement and these Special Service Conditions.
Upon request, RLUS will provide and/or arrange for warehousing and/or packing and crating services to be provided by qualified warehousemen and other service providers. All services will be rendered pursuant to the terms and conditions of the Master Service Agreement and these Specific Service Conditions.
Regardless of any other bill of lading, warehouse receipt, dock receipt or shipping document, all duties and obligations of customer and the warehouseman will be governed by the terms and conditions of the IWLA Non‐Negotiable Warehouse Receipt.
These terms and conditions shall apply regardless of whether the warehouse location is owned or leased by RLUS or provided to RLUS pursuant to arrangements by it for Customer’s benefit from a third party provider under contract with RLUS. All rates for storage and handling shall be determined at or prior to tender and shall be made available to Customer upon request unless otherwise published herein.
Customer shall be required to pay for storage charges in accordance with the terms and conditions of the Master Service Agreement. Handling charges and packing and crating charges will be billed when the services are provided and periodic storage charges will be invoiced as they accrue. Customer should take note that the Non‐Negotiable Warehouse Receipt provides for a spreading lien for payment of warehousing and accessorial charges and that all goods will be received and stored subject to a maximum liability for loss, damage or misdelivery of $.50 per pound or $500 per article, whichever is less. Neither RLUS nor its warehousemen and service providers shall be liable for special or consequential damages.
Storage and warehousing services will commence and charges will accrue upon tender of property to RLUS or its service providers by Customer or at the election of RLUS. When goods tendered to it or its retained service providers for transport by land, sea or air are rejected at destination and forwarding directions are not provided, the accrual of demurrage or per diem in excess of free time dictates the necessity of storage or due to occurrences beyond the control of RLUS and its service providers, ordinary transit has been interrupted, and therefore, storage is necessary to preserve Customer’s goods.
Specialized Packing, Crating and Handling Services
Notwithstanding the duty of Customer to properly pack, crate and label all goods prior to tender to meet the perils of transportation and health security and safety requirements attendant to the mode of transport, RLUS will arrange for specialized packing and crating services including trade show and so‐called “white glove” services provided by affiliates which have experience in retaining qualified service providers to perform the services.
When such packing and crating services are provided as accessorial components to transportation arranged by RLUS, the maximum liability for loss, damage or delay for which RLUS and its service provider shall be liable is the limit of liability established for the mode of transportation set forth in RLUS’s Service By Land, Service By Sea, and Service By Air Specific Service Conditions.
The parties agree that RLUS shall have no liability for special and consequential damages arising out of loss, damage or attendant delay with respect to any of Customer’s property and that the maximum limit of liability for cargo loss or damage for which RLUS or its retained service providers shall be liable shall be measured by the actual loss of property lost, damaged or delayed subject to a limit of 50 cents per pound per article unless otherwise agreed in a signed written agreement executed by a duly authorized officer of RLUS before tender and acceptance of the goods.
When RLUS is requested to provide or arrange for packing, crating, staging, setup or breakdown services which are not part of a through service provided or arranged by it, the parties agree that the maximum for property lost, damaged or stolen shall be $.50 cents per pound or $500.00 per article, whichever is less.
Customer agrees to indemnify RLUS and its service providers against any demand for excess liability and agrees to avail itself of insurance as set forth in the Master Services Agreement waiving subrogation in the event higher limits for potential cargo loss or damage is required.
RLUS, as agent for its customers, holds out to provide customs brokerage services facilitating the import and export of goods subject to the NCBFAA Terms and Conditions of Service published by the National Customs Brokers and Freight Forwarders Association (NCBFAA). Customer warrants that all shipping information and customs declarations provided to RLUS shall be accurate and agrees to indemnify and hold harmless RLUS from and against all liability, claim, fine, loss or damage arising out of the customs brokerage services provided by RLUS at Customer’s behest to the fullest extent permitted by law.
Power of Attorney granted by customer as U.S. importer of record for import shipments Customer authorizes RLUS to make CBP entry on Customer’s behalf and execute a CBP power of attorney as required by Title 19 C.F.R. Section 141.46, and to apply for and obtain a CBP bond on Customer’s behalf, as the bond principal, under Title 19 C.F.R. Section 113. Customer waives any requirement to receive a copy of Customer’s charges and fees under Title 19 C.F.R. Section 111.36. Customer acknowledges responsibility for payment of all charges for brokerage service and any duty, tax or government mandated user fees. Customer agrees to be bound by the terms and conditions of service of any customs broker selected by RLUS. Customer acknowledges that as the importer of record, the liability for duties, both regular and additional, attaching on importation, constitutes a personal debt due from the importer to the United States which can be discharged only by payment in full of all duties legally accruing, unless relieved by law or regulations. Payment to a broker covering duties does not relieve the importer of liability to the government if the duties are not paid by the broker.
AIR WAYBILL – CONDITIONS OF CONTRACT
I. NOTICE APPEARING ON THE FACE OF THE AIR WAYBILL
It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF. ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE. THE SHIPPER’S ATTENTION IS DRAWN TO THE NOTICE
CONCERNING CARRIER’S LIMITATION OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.
II. CONDITIONS OF CONTRACT ON REVERSE SIDE OF THE AIR WAYBILL NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier’s limitation of liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a higher value is declared.
CONDITIONS OF CONTRACT
1. In this contract and the Notices appearing hereon:
CARRIER includes the air carrier issuing this air waybill and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage.
SPECIAL DRAWING RIGHT (SDR) is a Special Drawing Right as defined by the International Monetary Fund.
WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage:
the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929;
that Convention as amended at The Hague on 28 September 1955;
that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be.
MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
2./2.1 Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such carriage is not “international carriage” as defined by the applicable Conventions.
2.2 To the extent not in conflict with the foregoing, carriage and other related services performed by each Carrier are subject to:
2.2.1 applicable laws and government regulations;
2.2.2 provisions contained in the air waybill, Carrier’s conditions of carriage and related rules, regulations, and timetables (but not the times of departure and arrival stated therein) and applicable tariffs of such Carrier, which are made part hereof, and which may be inspected at any airports or other cargo sales offices from which it operates regular services. When carriage is to/from the USA, the shipper and the consignee are entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage include, but are not limited to:
2.2.2.1 limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods;
2.2.2.2 claims restrictions, including time periods within which shippers or consignees must file a claim or bring an action against the Carrier for its acts or omissions, or those of its agents;
2.2.2.3 rights, if any, of the Carrier to change the terms of the contract;
2.2.2.4 rules about Carrier’s right to refuse to carry;
2.2.2.5 rights of the Carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate Carrier or aircraft and rerouting.
3. The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.
4. For carriage to which the Montreal Convention does not apply, Carrier’s liability limitation for cargo lost, damaged or delayed shall be 22 SDRs per kilogram unless a greater per kilogram monetary limit is provided in any applicable Convention or in Carrier’s tariffs or general conditions of carriage.
5./5.1 Except when the Carrier has extended credit to the consignee without the written consent of the shipper, the shipper guarantees payment of all charges for the carriage due in accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention), government regulations, orders and requirements.
5.2 When no part of the consignment is delivered, a claim with respect to such consignment will be considered even though transportation charges thereon are unpaid.
6./6.1 For cargo accepted for carriage, the Warsaw Convention and the Montreal Convention permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.
6.2 In carriage to which neither the Warsaw Convention nor the Montreal Convention applies Carrier shall, in accordance with the procedures set forth in its general conditions of carriage and applicable tariffs, permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if so required.
7./7.1 In cases of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Carrier’s limit of liability shall be only the weight of the package or packages concerned.
7.2 Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S. Transportation Code:
7.2.1 in the case of loss of, damage or delay to a shipment, the weight to be used in determining Carrier’s limit of liability shall be the weight which is used to determine the charge for carriage of such shipment; and
7.2.2 in the case of loss of, damage or delay to a part of a shipment, the shipment weight in 7.2.1 shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
8. Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees, and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.
9. Carrier undertakes to complete the carriage with reasonable dispatch. Where permitted by applicable laws, tariffs and government regulations, Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the shipper. Carrier is authorised by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage.
10.1 In the case of loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made:
10.1.1 in the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo;
10.1.2 in the case of delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery.
10.1.3 in the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by the Carrier.
10.2 Such complaint may be made to the Carrier whose air waybill was used, or to the first Carrier or to the last Carrier or to the Carrier, which performed the carriage during which the loss, damage or delay took place.
10.3 Unless a written complaint is made within the time limits specified in 10.1 no action may be brought against Carrier.
10.4 Any rights to damages against Carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
11. Shipper shall comply with all applicable laws and government regulations of any country to or from which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to shipper’s failure to comply with this provision.
12. No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.
Standard Contract Terms and Conditions for Merchandise Warehousemen
(Approved and promulgated by American Warehouse Association, October 1968; revised and promulgated by International Warehouse Logistics Ass ociation, January 1998)
ACCEPTANCE‐ Sec. 1
(a) This contract and rate quotation including accessorial charges endorsed on or attached hereto must be accepted within 30 days from the proposal date by signature of depositor on the reverse side of the contract. In the absence of written acceptance, the act of tendering goods described herein for storage or other services by warehouseman within 30 days from the proposal date shall constitute such acceptance by depositor.
(b) In the event that goods tendered for storage or other services do not conform to the description contained herein, or conforming goods are tendered after 30 days from the proposal date without prior written acceptance by depositor as provided in paragraph (a) of this section, warehouseman may refuse to accept such goods. If warehouseman accepts such goods, depositor agrees to rates and charges as maybe assigned and invoiced by warehouseman and to all terms of this contract.
(c) This contract may be canceled by either party upon 30 days written notice and is canceled if no storage or other services are performed under this contract for a period of 180 days.
SHIPPING‐ Sec. 2
Depositor agrees not to ship goods to warehouseman as the named consignee. If, in violation of this agreement, goods are shipped to warehouseman as named consignee, depositor agrees to notify carrier in writing prior to such shipment, with copy of such notice to the warehouseman, that warehouseman named as consignee is a warehouseman and has no beneficial title or interest in such property and depositor further agrees to indemnify and hold harmless warehouseman from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention or charges of any nature, in connection with goods so shipped. Depositor further agrees that, if it fails to notify carrier as required by the preceding sentence, warehouseman shall have the right to refuse such goods and shall not be liable or responsible for any loss, injury or damage of any nature to, or related to, such goods.
TENDER FOR STORAGE‐ Sec. 3
All goods for storage shall be delivered at the warehouse properly marked and packaged for handling. The depositor shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.
STORAGE PERIOD AND CHARGES‐ Sec. 4
(a) All charges for storage are per package or other agreed unit per month.
(b) Storage charges become applicable upon the date that warehouseman accepts care, custody and control of the goods, regardless of unloading date or date of issue of warehouse receipt.
(c) Except as provided in paragraph (d) of this section, a full month’s storage charge will apply on all goods received between the first and the 15th, inclusive, of a calendar month; one‐half month’s storage charge will apply on all goods received between the 16th and the last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
(d) When mutually agreed by the warehouseman and the depositor, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS‐ Sec. 5
(a) Instructions to transfer goods on the books of the warehouseman are not effective until delivered to and accepted by warehouseman, and all charges up to the time transfer is made are chargeable to the depositor of record.
If a transfer involves rehandling the goods, such will be subject to a charge. When goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer.
(b) The warehouseman reserves the right to move, at his expense, 14 days after notice is sent by certified or registered mail to the depositor of record or to the last known holder of the negotiable warehouse receipt, any goods in storage from the warehouse in which they may be stored to any other of his warehouses; but if such depositor or holder takes delivery of his goods in lieu of transfer, no storage charge shall be made for the current storage month. Warehouseman will store the goods at, and may without notice move the goods within and between, any one or more of the warehouse buildings which comprise the warehouse complex identified on the front of this warehouse receipt.
(c) The warehouseman may, upon written notice to the depositor of record and any other person known by the warehouseman to claim an interest in the goods, require the removal of any goods by the end of the next succeeding storage month. Such notice shall be given to the last known place of business or abode of the person to be notified. If goods are not removed before the end of the next succeeding storage month, the warehouseman may sell them in accordance with applicablelaw.
(d) If warehouseman in good faith believes that the goods are about to deteriorate or decline in value to less than the amount of warehouseman’s lien before the end of the next succeeding storage month, the warehouseman may specify in the notification any reasonable shorter time for removal of the goods and in case the goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
(e) If as a result of a quality or condition of the goods of which the warehouseman had no notice at the time of deposit the goods are a hazard to other property or to the warehouse or to persons, the warehouseman may sell the goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the goods. If the warehouseman after a reasonable effort is unable to sell the goods he may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the goods, the warehouseman may remove the goods from the warehouse and shall incur no liability by reason of such removal.
HANDLING‐ Sec. 6
(a) The handling charge covers the ordinary labor involved in receiving goods at warehouse door, placing goods in storage, and returning goods to warehouse door. Handling charges are due and payable on receipt of goods.
(b) Unless otherwise agreed, labor for unloading and loading goods will be subject to a charge. Additional expenses incurred by the warehouseman in receiving and handling damaged goods, and additional expense in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the depositor.
(c) Labor and materials used in loading rail cars or other vehicles are chargeable to the depositor.
(d) When goods are ordered out in quantities less than in which received, the warehouseman may make an additional charge for each order or each item of an order.
(e) The warehouseman shall not be liable for demurrage or detention, delays in unloading inbound cars, trailers or other containers, or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless warehouseman has failed to exercise reasonable care.
DELIVERY REQUIREMENTS‐ Sec. 7
(a) No goods shall be delivered or transferred except upon receipt by the warehouseman of complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, TWX or similar communication, provided warehouseman has no liability when relying on the information contained in the communication as received. However, when no negotiable receipt is outstanding, goods may be delivered upon instruction by telephone in accordance with a prior written authorization, but the warehouseman shall not be responsible for loss or error occasioned thereby.
(b) When a negotiable receipt has been issued no goods covered by that receipt shall be delivered, or transferred on the books of the warehouseman, unless the receipt, properly endorsed, is surrendered for cancellation, or for endorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of goods may be made only upon order of a court of competent jurisdiction and the posting of security approved by the court as provided by law.
(c) When goods are ordered out a reasonable time shall be given the warehouseman to carry out instructions, and if he is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond the warehouseman’s control, or because of loss or destruction of goods for which warehouseman is not liable, or because of any other excuse provided by law, the warehouseman shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
EXTRA SERVICES (SPECIAL SERVICES)‐ Sec. 8
(a) Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor.
(b) Special services requested by depositor including but not limited to compiling of special stock statements; reporting marked weights, serial numbers or other data from packages; physical check of goods; and handling transit billing will be subject to a charge.
(c) Dunnage, bracing, packing materials or other special supplies, may be provided for the depositor at a charge in addition to the warehouseman’s cost.
(d) By prior arrangement, goods may be received or delivered during other than usual business hours, subject to a charge.
(e) Communication expense including postage, teletype, telegram, or telephone will be charged to the depositor if such concern more than normal inventory reporting or if, at the request of the depositor, communications are made by other than regular United States Mail.
BONDED STORAGE‐ Sec. 9
(a) A charge in addition to regular rates will be made for merchandise inbond.
(b) Where a warehouse receipt covers goods in U.S. Customs bond, such receipt shall be void upon the termination of the storage period fixed by law.
MINIMUM CHARGES‐ Sec. 10
(a) A minimum handling charge per lot and a minimum storage charge per lot per month will be made. When a warehouse receipt covers more than one lot or when a lot is in assortment, a minimum charge per mark, brand, or variety will bemade.
(b) A minimum monthly charge to one account for storage and/or handling will be made. This charge will apply also to each account when one customer has several accounts, each requiring separate records and billing.
LIABILITY AND LIMITATION OF DAMAGES‐ Sec. 11
(a) THE WAREHOUSEMAN SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY THE WAREHOUSEMAN TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL MAN WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND WAREHOUSEMAN IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
(b) GOODS ARE NOT INSURED BY THE WAREHOUSEMAN AGAINST LOSS OR INJURY HOWEVERCAUSED.
(c) THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO 100 TIMES THE STORAGE RATE IDENTIFIED, PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THIS CONTRACT AS PROVIDED IN SECTION 1 BE INCREASED UPON DEPOSITOR’S WRITTEN REQUEST ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT AN ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION.
(d) WHERE LOSS OR INJURY OCCURS TO STORED GOODS, FOR WHICH THE WAREHOUSEMAN IS NOT LIABLE, THE DEPOSITOR SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THEGOODS.
NOTICE OF CLAIM AND FILING OF SUIT‐ Sec. 12
(a) Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
(b) No action may be maintained by the depositor or others against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in paragraph (a) of this section and unless such action is commenced either within nine months after date of delivery by warehouseman or within nine months after depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.
(c) When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by warehouseman.
LIABILITY FOR CONSEQUENTIAL DAMAGES‐ Sec. 13
Warehouseman shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
LIABILITY FOR MISSHIPMENT‐ Sec. 14
If warehouseman negligently misships goods, the warehouseman shall pay the reasonable transportation charges incurred to return the misshipped goods to the warehouse. If the consignee fails to return the goods, warehouseman’s maximum liability shall be for the lost or damaged goods as specified in Section 11 above, and warehouseman shall have no liability for damages due to the consignee’s acceptance or use of the goods whether such goods be those of the depositor or another.
MYSTERIOUS DISAPPEARANCE‐ Sec. 15
Warehouseman shall not be liable for loss of goods due to inventory shortage or unexplained or mysterious disappearance of goods unless depositor establishes such loss occurred because of warehouseman’s failure to exercise the care required of warehouseman under Section 11 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by depositor of conversion must be established by affirmative evidence that the warehouseman converted the goods to the warehouseman’s own use.
RIGHT TO STORE GOODS‐ Sec. 16
Depositor represents and warrants that depositor is lawfully possessed of the goods and has the right and authority to store them with warehouseman. Depositor agrees to indemnify and hold harmless the warehouseman from all loss, cost and expense (including reasonable attorneys’ fees) which warehouseman pays or incurs as a result of any dispute or litigation, whether instituted by warehouseman or others, respecting depositor’s right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to warehouseman’s lien.
ACCURATE INFORMATION‐ Sec. 17
Depositor will provide warehouseman with information concerning the stored goods which is accurate, complete and sufficient to allow warehouseman to comply with all laws and regulations concerning the storage, handling and transporting of the stored goods. Depositor will indemnify and hold warehouseman harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which warehouseman pays or incurs as a result of depositor failing to fully discharge this obligation.
SEVERABILITY and WAIVER‐ Sec. 18
(a) If any provision of this receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions of this receipt shall not be affected thereby but shall remain in full force and effect.
(b) Warehouseman’s failure to require strict compliance with any provision of the Warehouse Receipt shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this Warehouse Receipt.
(c) The provisions of this Warehouse Receipt shall be binding upon the depositor’s heirs, executors, successors and assigns; contain the sole agreement governing goods stored with the warehouseman; and, cannot be modified except by a writing signed by warehouseman.
Definitions
– “Freight Forwarder” means the person/Multimodal Transport Operator who issues this Waybill (SWB) and is named on the face of it and assumes liability for the performance of this contract as a carrier.
– “Merchant” means and includes the Shipper, the Consignor, the Consignee, the Receiver and the Owner of the Goods.
“Consignor” means the person who concludes this SWB with the Freight Forwarder.
“Consignee” means the person named in or identiflable as such from this transport contract.
“Taken in charge” means that the Goods have been handed over to and accepted for carriage by the Freight Forwarder at the place of receipt evidenced in this SWB.
“Goods” means any property including live animals as well as containers, pallets or similar articles of transport or packaging not supplied by the Freight Forwarder, irrespective of whether such property is to be or is carried on or under deck.
1. Applicability
These conditions shall also apply if the transport as described in this SWB is performed by only one mode of transport.
2. Issuance of this SWB
2.1. By issuance of this SWB the Freight Forwarder
a) undertakes to perform and/or in his own name to procure the performance of the transport, from the place at which the Goods are taken in charge (place of receipt evidenced in this SWB) to the place of delivery designated in this SWB;
b) assumes liability as a carrier as set out in these conditions.
2.2. Subject to the conditions of this SWB the Freight Forwarder shall be responsible for the acts and omissions of his servants or agents acting within the scope of their employment, or any other person of whose services he makes use for the performance of the contract evidenced by this SWB, as if such acts and omissions were his own.
3. Agency
3.1. The Consignor on entering into this transport contract does so not only on his own behalf but also as agent for and on behalf of the Consignee, and warrants to the Freight Forwarder that he has authority so to do.
3.2. This rule shall apply if, and only if, it be necessary by the law applicable to this transport contract so as to enable the Consignee to sue and be sued thereon. The Consignee shall be under no greater liability than he would have been had the transport contract been covered by a bill of lading or similar document of title.
4. Right of control
4.1. Unless the Consignor has exercised his option under clause 4.2. below, he shall be the only party entitled to give the Freight Forwarder instructions in relation to this transport contract. Unless prohibited by the applicable law, he shall be entitled to change the name of the Consignee at any time up to the Consignee claiming delivery of the Goods after arrival at destination, provided he gives the Freight Forwarder reasonable notice in writing, or by some other means acceptable to the Freight Forwarder, thereby undertaking to indemnify the Freight Forwarder against any additional expense caused thereby.
4.2. The Consignor shall have the option, to be exercised not later than upon the receipt of the Goods by the Freight Forwarder, to transfer the right of control to the Consignee. The exercise of this option must be noted on the SWB prior to or at the time of its issue. Where the option has been exercised the Consignee shall have such rights as are referred to in clause 4.1. above and the Consignor shall cease to have such rights.
5. Dangerous Goods and indemnity
5.1. The Merchant shall comply with rules which are mandatory according to the national law or by reason of international convention, relating to the carriage of Goods of a dangerous nature, and shall in any case inform the Freight Forwarder in writing of the exact nature of the danger before Goods of a dangerous nature are taken in charge by the Freight Forwarder and indicate to him, if need be, the precautions to be taken.
5.2. If the Merchant fails to provide such information and the Freight Forwarder is unaware of the dangerous nature of the Goods and the necessary precautions to be taken and if, at any time, they are deemed to be a hazard to life or property, they may at any place be unloaded, destroyed or rendered harmless, as circumstances may require, without compensation. The Merchant shall indemnify the Freight Forwarder against all loss, damage, liability, or expense arising out of their being taken in charge, or their carriage, or of any service incidental thereto.
The burden of proving that the Freight Forwarder knew the exact nature of the danger constituted by the carriage of the said Goods shall rest on the Merchant.
5.3. If any Goods shall become a danger to life or property, they may in like manner be unloaded or landed at any place or destroyed or rendered harmless. If such danger was not caused by the fault and neglect of the Freight Forwarder he shall have no liability and the Merchant shall indemnify him against all loss, damage, liability and expense arising therefrom.
6. Description of Goods and Merchant’s Packing and Inspection
6.1. The information in this SWB shall be prima facie evidence of the taking in charge by the Freight Forwarder of the Goods as described by such information unless a contrary indication, such as “shipper’s weight, load and count”, “shipper-packed container” or similar expressions, has been made in the printed text or superimposed on this SWB.
6.2. The Consignor shall be deemed to have guaranteed to the Freight Forwarder the accuracy, at the time the Goods were taken in charge by the Freight Forwarder, of all particulars relating to the general nature of the Goods, their marks, number, weight, volume and quantity and, if applicable, to the dangerous character of the Goods, as furnished by him or on his behalf for insertion on the SWB.
The Consignor shall indemnify the Freight Forwarder against all loss, damage and expense resulting from any inaccuracy or inadequacy of such particulars.
6.3. The Freight Forwarder shall not be liable for any loss, damage or expense caused by defective or insufficient packing of Goods or by inadequate loading or packing within containers or other transport units when such loading or packing has been performed by the Merchant or on his behalf by a person other than the Freight Forwarder, or by the defect or unsuitability of the containers or other transport units supplied by the Merchant, or if supplied by the Freight Forwarder if a defect or unsuitability of the container or other transport unit would have been apparent upon reasonable inspection by the Merchant. The Merchant shall indemnify the Freight Forwarder against all loss, damage, liability and expense so caused.
6.4. The right of the Freight Forwarder to an Indemnity as per clause 6.2. and 6.3. shall in no way limit his liability under this SWB to any person other than the Consignor.
7. Freight Forwarder’s Liability
7.1. The responsibility of the Freight Forwarder for the Goods under these conditions covers the period from the time the Freight Forwarder has taken the Goods in his charge to the time of their delivery.
7.2. The Freight Forwarder shall be liable for loss of or damage to the Goods as well as for delay in delivery if the occurrence which caused the loss, damage or delay in delivery took place while the Goods were in his charge, unless the Freight Forwarder proves that no fault or neglect of his own, his servants or agents or any other person referred to in clause 2.2. has caused or contributed to such loss, damage or delay. However, the Freight Forwarder shall only be liable for loss following from delay in delivery if the Consignor has made a declaration of interest in timely delivery which has been accepted by the Freight Forwarder.
7.3. Arrival times are not guaranteed by the Freight Forwarder. However, delay in delivery occurs when the Goods have not been delivered within the time expressly agreed upon or, in the absence of such agreement, within the time which would be reasonable to require of a diligent Freight Forwarder, having regard to the circumstances of the case.
7.4. If the Goods have not been delivered within ninety consecutive days following such date of delivery as determined in clause 7.3., the claimant may, in the absence of evidence to the contrary, treat the Goods as lost.
7.5. When the Freight Forwarder establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more causes or events, specified in a)-e) of the present clause, it shall be presumed that it was so caused, always provided, however, that the claimant shall be entitled to prove that the loss or damage was not, in fact, caused wholly or partly by one or more of such causes or events:
a) an act or omission of the Merchant, or person other than the Freight Forwarder acting on behalf of the Merchant or from whom the Freight Forwarder took the Goods in charge;
b) insufficiency or defective condition of the packaging or marks and/or numbers;
c) handling, loading, stowage or unloading of the Goods by the Merchant or any person acting on behalf of the Merchant;
d) inherent vice of the Goods;
e) strike, lockout, stoppage or restraint of labour.
7.6. Defences for carriage by sea or inland waterways
Notwithstanding clauses 7.2., 7.3. and 7.4. the Freight Forwarder shall not be liable for loss, damage or delay in delivery with respect to Goods carried by sea or inland waterways when such loss, damage or delay during such carriage has been caused by:
a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship,
b) fire, unless caused by the actual fault or privity of the carrier, however, always provided that whenever loss or damage has resulted from unseaworthiness of the ship, the Freight Forwarder can prove that due diligence has been exercised to make the ship seaworthy at the commencement of the voyage.
8.Paramount Clauses
8.1. These conditions shall only take effect to the extent that they are not contrary to the mandatory provisions of international conventions or national law applicable to the contract evidenced by this SWB.
8.2. The Hague Rules contained in the International Convention for the unification of certain rules relating to Bills of Lading, dated Brussels 25th August 1924, or in those countries where they are already in force the Hague-Visby Rules contained in the Protocol of Brussels, dated 23rd February 1968, as enacted in the country of shipment, shall apply to all carriage of goods by sea and also to the carriage of goods by inland waterways, and such provisions shall apply to all Goods whether carried on deck or under deck.
8.3. The Carriage of Goods by Sea Act of the United States of America (US COGSA) shall apply to the carriage of Goods by sea, whether on deck or under deck, if compulsorily applicable to this SWB or would be applicable but for the Goods being carried on deck in accordance with a statement on this SWB.
9. Limitation of Freight Forwarder’s Liability
9.1. Assessment of compensation for loss of or damage to the Goods shall be made by reference to the value of such Goods at the place and time they are delivered to the Consignee or at the place and time when, in accordance with this SWB, they should have been so delivered.
9.2. The value of the Goods shall be determined according to the current commodity exchange price or, if there is no such price, according to the current market price or, if there are no such prices, by reference to the normal value of Goods of the same kind and quality.
9.3. Subject to the provisions of clauses 9.4. to 9.9. inclusive, the Freight Forwarder shall in no event be or become liable for any loss of or damage to the Goods in an amount exceeding the equivalent of 666.67 SDR per package or unit or 2 SDR per kilogramme of gross weight of the Goods lost or damaged, whichever is the higher, unless the nature and value of the Goods shall have been declared by the Consignor and accepted by the Freight Forwarder before the Goods have been taken in his charge, or the ad valorem freight rate paid, and such value is stated in the SWB by him, then such declared value shall be the limit.
9.4. Where a container, pallet or similar article of transport is loaded with more than one package or unit, the packages or other shipping units enumerated in the SWB as packed in such article of transport are deemed packages or shipping units. Except as aforesaid, such article of transport shall be considered the package or unit.
9.5. Notwithstanding the above mentioned provisions, if the transport does not, according to the contract, include carriage of goods by sea or by inland waterways, the liability of the Freight Forwarder shall be limited to an amount not exceeding 8.33 SDR per kilogramme of gross weight of the Goods lost or damaged.
9.6.
a) When the loss of or damage to the Goods occurred during one particular stage of the transport, in respect of which an applicable international convention or mandatory national law would have provided another limit of liability if a separate contract of carriage had been made for that particular stage of transport, then the limit of the Freight Forwarder’s llability for such loss or damage shall be determined by reference to the provisions of such convention or mandatory national law.
b) Unless the nature and value of the Goods shall have been declared by the Merchant and inserted in this SWB, and the ad valorem freight rate paid, the liability of the Freight Forwarder under US COGSA, where applicable, shall not exceed US$ 500 per package or, in the case of Goods not shipped in packages, per customary freight unit.
9.7. If the Freight Forwarder is liable in respect of loss following from delay in delivery, or consequential loss or damage other than loss of or damage to the Goods, the liability of the Freight Forwarder shall be limited to an amount not exceeding the equivalent of twice the freight for the transport under this SWB.
9.8. The aggregate liability of the Freight Forwarder shall not exceed the limits of liability for total loss of the Goods.
9.9. The Freight Forwarder is not entitled to the benefit of the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from a personal act or omission of the Freight Forwarder done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.
10. Applicability to Actions in Tort
These conditions apply to all claims against the Freight Forwarder relating to the performance of the contract evidenced by this SWB, whether the claim be founded in contract or in tort.
11. Liability of Servants and other Persons
11.1. These conditions apply whenever claims relating to the performance of the contract evidenced by this SWB are made against any servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract, whether such claims are founded in contract or in tort, and the aggregate liability of the Freight Forwarder and of such servants, agents or other persons shall not exceed the limits in clause 9.
11.2. In entering into this contract as evidenced by this SWB, the Freight Forwarder, to the extent of these provisions, does not only act on his own behalf, but also as agent or trustee for such persons, and such persons shall to this extent be or be deemed to be parties to this contract.
11.3. However, if it is proved that the loss of or such loss or damage to the Goods resulted from a personal act or omission of such a person referred to in clause 11.1., done with intent to cause damage, or recklessly and with knowledge that damage would probably result, such person shall not be entitled to benefit of limitation of liability provided for in clause 9.
11.4. The aggregate of the amounts recoverable from the Freight Forwarder and the persons referred to in clauses 2.2. and 11.1. shall not exceed the limits provided for in these conditions.
12.Method and Route of Transportation
Without notice to the Merchant, the Freight Forwarder has the liberty to carry the Goods on or under deck and to choose or substitute the means, route and procedure to be followed in the handling, stowage, storage and transportation of the Goods.
13.Delivery
13.1. Goods shall be deemed to be delivered when they have been handed over or placed at the disposal of the Consignee or his agent in accordance with this SWB or with the law or usage of the particular trade applicable at the place of delivery, or when the Goods have been handed over to any authority or other party to whom, pursuant to the law or regulation applicable at the place of delivery, the Goods must be handed over, or such other place at which the Freight Forwarder is entitled to call upon the Merchant to take delivery.
13.2. In case it proves impossible to perform or procure the performance of all acts necessary to ensure delivery of the Goods the Freight Forwarder shall also be entitled to store the Goods at the sole risk of the Merchant, and the Freight Forwarder’s liability shall cease, and the cost of such storage shall be paid, upon demand, by the Merchant to the Freight Forwarder.
13.3. The Freight Forwarder shall not be liable for incorrect delivery, unless he has failed to exercise reasonable care to ascertain that the party claiming to be the Consignee is in fact that party.
13.4. If at any time the carriage under this SWB is or is likely to be affected by any hindrance or risk of any kind (including the condition of the Goods) not arising from any fault or neglect of the Freight Forwarder or a person referred to in clause 2.2. and which cannot be avoided by the exercise of reasonable endeavour the Freight Forwarder may:
abandon the carriage of the Goods under this SWB and, where reasonably possible, place the Goods or any part of them at the Merchant’s disposal at any place which the Freight Forwarder may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of the Freight Forwarder in respect of such Goods shall cease.
In any event, the Freight Forwarder shall be entitled to full freight under this SWB and the Merchant shall pay any additional costs resulting from the above mentioned circumstances.
14. Freight and Charges
14.1. The terms and conditions of the Freight Forwarder’s applicable tariff, if any, are incorporated herein. Copies of the relevant terms and conditions thereof are available from the Freight Forwarder upon request. In the case of inconsistency between this SWB and the applicable tariff the SWB shall prevail.
All dues, taxes and charges or other expenses in connection with the Goods shall be paid by the Merchant. Where equipment is supplied by the Freight Forwarder, the Merchant shall pay all demurrage and charges which are not due to a fault or neglect of the Freight Forwarder.
14.2. Freight shall be paid in cash, without any reduction or deferment on account of any clairn, counterclaim or setoff, whether prepaid or payable at destination. Freight shall be considered as earned by the Freight Forwarder at the moment when the Goods have been taken in his charge, and not to be returned in any event.
14.3. Freight and all other amounts mentioned in this SWB are to be paid in the currency named in this SWB or, at the Freight Forwarder’s option, in the currency of the country of dispatch or destination at the highest rate of exchange for bankers sight bills current for prepaid freight on the day of dispatch and for freight payable at destination on the day when the Merchant is notified on arrival of the Goods there or on the date of withdrawal of the delivery order, whichever rate is the higher, or at the option of the Freight Forwarder on the date of this FWB.
14.4. The Merchant shall reimburse the Freight Forwarder in proportion to the amount of freight for any costs for deviation or delay or any other increase of costs of whatever nature caused by war, warlike operations, epidemics, strikes, government directions or force majeure.
14.5. The Merchant warrants the correctness of the declaration of contents, insurance, weight, measurements or value of the Goods but the Freight Forwarder has the liberty to have the contents inspected and the weight, measurements or value verified. If on such inspection it is found that the declaration is not correct it is agreed that a sum equal either to five times the difference between the correct figure and the freight charged, or to double the correct freight less the freight charged, whichever sum is the smaller, shall be payable as liquidated damages to the Freight Forwarder for his inspection costs and losses of freight on other Goods notwithstanding any other sum having been stated on this SWB as freight payable.
14.6. Despite the acceptance by the Freight Forwarder of instructions to collect freight, charges or other expenses from any other person in respect of the transport under this SWB, the Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason.
15. Lien
The Freight Forwarder shall have a lien on the Goods and any documents relating thereto for any amount due at any time to the Freight Forwarder from the Merchant including storage fees and the cost of recovering same, and may enforce such lien in any reasonable manner which he may think fit.
16. General Average
The Merchant shall indemnify the Freight Forwarder in respect of any claims of a General Average nature which may be made on him and shall provide such security as may be required by the Freight Forwarder in this connection.
17.Notice
17.1. Unless notice of loss of or damage to the Goods, specifying the general nature of such loss or damage, Is given in writing by the Consignee to the Freight Forwarder when the Goods are delivered to the Consignee in accordance with clause 13., such handing over is prima facie evidence of the delivery by the Freight Forwarder of the Goods as described in this SWB.
17.2. Where the loss or damage is not apparent, the same prima facie effect shall apply if notice in writing is not given within 6 consecutive days after the day when the Goods were delivered to the Consignee in accordance with clause 13.
18.Time bar
The Freight Forwarder shall, unless otherwise expressly agreed, be discharged of all liability under these conditions unless suit is brought within 9 months after the delivery of the Goods, or the date when the Goods should have been delivered, or the date when in accordance with clause 7.4. failure to deliver the Goods would give the Consignee the right to treat the Goods as lost.
19.Partial Invalidity
If any clause or a part thereof is held to be invalid, the validity of this SWB and the remaining clauses or a part thereof shall not be affected.
20. Jurisdiction and applicable law
Unless otherwise agreed in writing, actions against the Freight Forwarder may be instituted only in the place where the Freight Forwarder has his place of business as stated on the reverse of this SWB and shall be decided according to the law of the country in which that place of business is situated. In the absence of the specification of a place of business or jurisdiction, actions against the Freight Forwarder may be instituted only in the State and Federal courts of New York County, New York, and shall be decided according to the law of the State of New York without regard to that state’s conflict of laws principles.
These terms and conditions of service constitute a legally binding contract between the “RLUS” and the “Customer”. In the event the RLUS 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) “RLUS” shall mean Ricoh Logistics Corporation., its subsidiaries, related companies, agents and/or representatives;
b) “Customer” shall mean the person for which the RLUS 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) RLUS as agent. The RLUS 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 and security documentation on behalf of the Customer and other dealings with Government Agencies, or for arranging for transportation services or other logistics services in any capacity other than as a carrier.
3) Limitation of Actions.
a) Unless subject to a specific statute or international convention, all claims against the RLUS for a potential or actual loss, must be made in writing and received by the RLUS, within 90 days of the event giving rise to claim; the failure to give the RLUS timely notice shall be a complete defense to any suit or action commenced by Customer.
b) All suits against RLUS must be filed and properly served on RLUS as follows:
i) For claims arising out of ocean transportation, within 1 year from the date of loss;
ii) For claims arising out of air transportation, within 1 year from the date of the loss;
iii) For claims arising out of the preparation and/or submission of an import entry(s), within 75 days from the date of liquidation of the entry(s);
iv) For any and all other claims of any other type, within 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, RLUS 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 RLUS 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 RLUS warrants or represents that such person or firm will render such services nor does RLUS 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 RLUS shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the RLUS.
5) Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the RLUS to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the RLUS unless the RLUS 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 RLUS 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 Government Agency and/or third parties, and will immediately advise the RLUS of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on Customers behalf;
b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, the RLUS 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 ensure the correctness of all such information and shall indemnify and hold the RLUS 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, incomplete or false statement by the Customer or its agent, representative or contractor upon which the RLUS 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 RLUS 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 RLUS’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, RLUS 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, RLUS makes no express or implied warranties in connection with its services;
b) In connection with all services performed by the RLUS, 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 RLUS prior to rendering services for the coveredtransaction(s).
c) In the absence of additional coverage under (b) above, the RLUS’s liability shall be limited to the following:
i) where the claim arises from activities other than those relating to customs business, $ 50 per shipment or transaction, or
ii) where the claim arises from activities relating to “Customs business”, $ 50 per entry or the amount of brokerage fees paid to RLUS for the entry, whichever is less;
d) In no event shall RLUS 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 RLUS agrees inwriting 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 RLUS.
11) Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the RLUS harmless from any claims and/or liability, fines, penalties and/or attorneys’ fees arising from 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, and further agrees to indemnify and hold the RLUS harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the RLUS 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 RLUS, it shall give notice in writing to the Customer by mail at its address on file with the RLUS.
12) C.O.D. or Cash Collect Shipments. RLUS 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 RLUS, the RLUS 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 RLUS.
14) General Lien and Right To Sell Customer’s Property.
a) RLUS shall have a general and continuing lien on any and all property of Customer coming into RLUS’s actual or constructive possession or control for monies owed to RLUS with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
b) RLUS 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 RLUS’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 RLUS, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, RLUS shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shallbe refunded to Customer.
d) As an inducement to RLUS to extend credit to Customer, Customer hereby grants to RLUS a Security Interest in the goods and property in all shipments (and all proceeds from same) and hereby authorizes RLUS to file a UCC-1 financing Statement with the proper governing authority in the public records.
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 RLUS shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “record keeper” or “recordkeeping agent” for Customer.
16) Obtaining Binding Rulings, Filing Protests, etc. Unless requested by Customer in writing and agreed to by RLUS in writing, RLUS 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 RLUS prepares and/or issues a bill of lading, RLUS 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, RLUS shall rely upon and use the cargo weight supplied by Customer. Relative to the liability limits set forth elsewhere in this Agreement. Customer and RLUS hereby waive all rights and remedies under the Carmack Amendment and the ICC Termination Act of 1995 (the “Act”), pursuant to Section 1410(b) of the Act. As required by regulation, Customer and Client do not waive the provisions governing registration, insurance, or safety fitness. Unless the RLUS physically handles and carries the shipment, the loss, damage, expense or delay occurs during such carriage activity, the RLUS assumes no liability as a carrier.
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 RLUS; any attempt to unilaterally modify, alter or amend same shall be null and void.
19) Compensation of RLUS. The compensation of the RLUS 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 RLUS to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the RLUS from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the RLUS 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 RLUS, upon recovery by the RLUS, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
20) Force Majeure. RLUS 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 RLUS or its sub-contractors, including but not limitedto:
a) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster;
b) war, hijacking, robbery, theft or terrorist activities;
c) incidents or deteriorations to means of transportation, d)embargoes,
e) civil commotions or riots,
f) defects, nature or inherent vice of the goods;
g) acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else whomay have an interest in the shipment,
h) acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or
i) 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. RLUS’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 State of New York without giving consideration to principles of conflict of law. Customer and RLUS
a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of New York County, New York;
b) agree that any action relating to the services performed by RLUS, 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.