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These terms and conditions of service constitute
a legally binding contract between the "Company" and
the "Customer". In the event the Company renders services
and issues a document containing Terms and Conditions governing
such services, the Terms and Conditions set forth in such other
document(s) shall govern those services.
1.
Definitions.
(a)
"Company" shall mean JAMES J.
BOYLE & CO., its subsidiaries, related companies, agents
and/or representatives;
(b)
"Customer" shall mean the person
for which the Company is rendering service, as well as its agents
and/or representatives, including, but not limited to, shippers,
importers, exporters, carriers, secured parties, warehousemen,
buyers and/or sellers, shipper's agents, insurers and underwriters,
break-bulk agents, consignees, etc. It is the responsibility of
the Customer to provide notice and copy(s) of these terms and
conditions of service to all such agents or representatives;
(c)
"Documentation" shall mean all information
received directly or indirectly from Customer, whether in paper
or electronic form;
(d)
"Ocean Transportation Intermediaries"
("OTI") shall include an "ocean freight forwarder"
and a "non-vessel operating carrier";
(e)
"Third parties" shall include, but
not be limited to, the following: "carriers, truckmen, cartmen,
lightermen forwarders, OTIs, customs brokers, agents, warehousemen
and others to which the goods are entrusted for transportation,
cartage, handling and/or delivery and/or storage or otherwise".
2.
Company as agent. The Company
acts as the "agent" of the Customer for the purpose
of performing duties in connection with the entry and release
of goods, post entry services, the securing of export licenses,
the filing of export documentation on behalf of the Customer and
other dealings with Government Agencies: as to all other services,
Company acts as an independent contractor.
3.
Limitation of Actions.
(a)
Unless subject to a specific statute or international
convention, all claims against the Company for a potential or
actual loss, must be made in writing and received by the Company,
within ninety (90) days of the event giving rise to claim; the
failure to give the Company timely notice shall be a complete
defense to any suit or action commenced by Customer.
(b) All suits against Company must
be filed and properly served on Company as follows:
(i) For claims arising out of ocean
transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air
transportation, within two (2) years from the date of the loss;
(iii) For claims arising out of the
preparation and/or submission of an import entry(s), within seventy
five (75) days from the date of liquidation of the entry(s);
(iv) For any and all other claims
of any other type, within two (2) years from the date of the loss
or damage.
4.
No Liability For The Selection or Services
of Third Parties and/or Routes. Unless services are performed
by persons or firms engaged pursuant to express written instructions
from the Customer, Company shall use reasonable care in its selection
of third parties, or in selecting the means, route and procedure
to be followed in the handling, transportation, clearance and
delivery of the shipment; advice by the Company that a particular
person or firm has been selected render services with respect
to the goods, shall not be construed to mean that the Company
warrants or represents that such person or firm will render such
services nor does Company assume responsibility or liability for
any actions(s) and/or inaction(s) of such third parties and/or
its agents, and shall not be liable for any delay or loss of any
kind, which occurs while a shipment is in the custody or control
of a third party or the agent of a third party; all claims in
connection with the Act of a third party shall be brought solely
against such party and/or its agents; in connection with any such
claim, the Company shall reasonably cooperate with the Customer,
which shall be liable for any charges or costs incurred by the
Company.
5.
Quotations
Not Binding. Quotations as to fees, rates of duty, freight charges,
insurance premiums or other charges given by the Company to the
Customer are for informational purposes only and are subject to
change without notice; no quotation shall be binding upon the
Company unless the Company in writing agrees to undertake the
handling or transportation of the shipment at a specific rate
or amount set forth in the quotation and payment arrangements
are agreed to between the Company and the Customer.
6.
Reliance
On Information Furnished.
(a)
Customer acknowledges that it is required to
review all documents and declarations prepared and/or filed with
the Customs Service, other Government Agency and/or third parties,
and will immediately advise the Company of any errors, discrepancies,
incorrect statements, or omissions on any declaration filed on
Customers behalf;
(b)
In preparing and submitting customs entries,
export declarations, applications, documentation and/or export
date to the United States and/or a third party, the Company relies
on the correctness of all documentation, whether in written or
electronic format, and all information furnished by Customer;
Customer shall use reasonable care to insure the correctness of
all such information and shall indemnify and hold the Company
harmless from any and all claims asserted and/or liability or
losses suffered by reason of the Customer's failure to disclose
information or any incorrect or false statement by the Customer
upon which the Company reasonably relied. The Customer agrees
that the Customer has an affirmative non-delegable duty to disclose
any and all information required to import, export or enter the
goods.
7.
Declaring
Higher Value To Third Parties. Third parties to whom the goods
are entrusted may limit liability for loss or damage; the Company
will request excess valuation coverage only upon specific written
instructions from the Customer, which must agree to pay any charges
therefor; in the absence of written instructions or the refusal
of the third party to agree to a higher declared value, at Company's
discretion, the goods may be tendered to the third party, subject
to the terms of the third party's limitations of liability and/or
terms and conditions of service.
8.
Insurance.
Unless requested to do so in writing and confirmed to Customer
in writing, Company is under no obligation to procure insurance
on Customer's behalf; in all cases, Customer shall pay all premiums
and costs in connection with procuring requested insurance.
9.
Disclaimers;
Limitation of Liability.
(a)
Except as specifically set forth herein, Company
makes no express or implied warranties in connection with its
services;
(b)
Subject to (c) below, Customer agrees that
in connection with any and all services performed by the Company,
the Company shall only be liable for its negligent acts, which
are the direct and proximate cause of any injury to Customer,
including loss or damage to Customer's goods, and the Company
shall in no event be liable for the acts of third parties;
(c)
In connection with all services performed by
the Company, Customer may obtain additional liability coverage,
up to the actual or declared value of the shipment or transaction,
by requesting such coverage and agreeing to make payment therefor,
which request must be confirmed in writing by the Company prior
to rendering services for the covered transaction(s).
(d)
In the absence of additional coverage under
(b) above, the Company's liability shall be limited to the following:
(i)
where the claim arises from activities other
than those relating to customs brokerage, $50.00 per shipment
or transaction, or
(ii)
where the claim arises from activities relating
to "Customs business," $50.00 per entry or the amount
of brokerage fees paid to Company for the entry, whichever is
less;
(e)
In no event shall Company be liable or responsible
for consequential, indirect, incidental, statutory or punitive
damages even if it has been put on notice of the possibility of
such damages.
10.
Advancing
money. All charges must be paid by Customer in advance unless
the Company agrees in writing to extend credit to customer;
the granting of credit to a Customer in connection with a particular
transaction shall not be considered a waiver of this provision
by the Company.
11.
Indemnification/Hold
Harmless. The Customer agrees to indemnify, defend, and hold
the Company harmless from any claims and/or liability arising
from the importation or exportation of Customers merchandise
and/or any conduct of the Customer, which violates any Federal,
State and/or other laws, and further agrees to indemnify and
hold the Company harmless against any and all liability, loss,
damages, costs, claims and/or expenses, including but not limited
to reasonable attorney's fees, which the Company may hereafter
incur, suffer or be required to pay by reason of such claims;
in the event that any claim, suit or proceeding is brought against
the Company, it shall give notice in writing to the Customer
by mail at its address on file with the Company.
12.
C.O.D.
or Cash/Collect Shipments. Company shall use reasonable care
regarding written instructions relating to "Cash/Collect
on Delivery (C.O.D.)" shipments, bank drafts, cashier's
and/or certified checks, letter(s) of credit and other similar
payment documents and/or instructions regarding collection of
monies but shall not have liability if the bank or consignee
refuses to pay for the shipment.
13.
Costs
of Collection. In any dispute involving monies owed to Company,
the Company shall be entitled to all costs of collection, including
reasonable attorney's fees and interest at 15% per annum or
the highest rate allowed by law, whichever is less, unless a
lower amount is agreed to by Company.
14.
General
Lien and Right To Sell Customer's Property.
(a)
Company shall have a general and continuing
lien on any and all property of Customer coming into Company's
actual or constructive possession or control for monies owed
to Company with regard to the shipment on which the lien is
claimed, a prior shipment(s) and/or both;
(b)
Company shall provide written notice to Customer
of its intent to exercise such lien, the exact amount of monies
due and owing, as well as any ongoing storage or other charges;
Customer shall notify all parties having an interest in its
shipment(s) of Company's rights and/or the exercise of such
lien.
(c)
Unless, within thirty days of receiving notice
of lien, Customer posts cash or letter of credit at sight, or,
if the amount due is in dispute, an acceptable bond equal to
110% of the value of the total amount due, in favor of Company,
guaranteeing payment of the monies owed, plus all storage charges
accrued or to be accrued, Company shall have the right to sell
such shipment(s) at public or private sale or auction and any
net proceeds remaining thereafter shall be refunded to Customer.
15.
No
Duty To Maintain Records For Customer. Customer acknowledges
that pursuant to Sections 508 and 509 of the Tariff Act, as
amended, (19 USC §1508 and 1509) it has the duty and is solely
liable for maintaining all records required under the Customs
and/or other Laws and Regulations of the United States; unless
otherwise agreed to in writing, the Company shall only keep
such records that it is required to maintain by Statute(s) and/or
Regulation(s), but not act as a "recordkeeper" or
"recordkeeping agent" for Customer.
16.
Obtaining
Binding Rulings, Filing Protests, etc. Unless requested by Customer
in writing and agreed to by Company in writing, Company shall
be under no obligation to undertake any pre- or post Customs
release action, including, but not limited to, obtaining binding
rulings, advising of liquidations, filing of petition(s) and/or
protests, etc.
17.
Preparation
and Issuance of Bills of Lading. Where Company prepares and/or
issues a bill of lading, Company shall be under no obligation
to specify thereon the number of pieces, packages and/or cartons,
etc.; unless specifically requested to do so in writing by Customer
or its agent and Customer agrees to pay for same, Company shall
rely upon and use the cargo weight supplied by Customer.
18.
No
Modification or Amendment Unless Written. These terms and conditions
of service may only be modified, altered or amended in writing
signed by both Customer and Company; any attempt to unilaterally
modify, alter or amend same shall be null and void.
19.
Compensation
of Company. The compensation of the Company for all its services
shall be included with and is in addition to the rates and charges
of all carriers and all other agencies selected by the Company
to transport and deal with the goods and such compensation shall
be exclusive of any brokerage, commissions, dividends, or other
revenue received by the Company from carriers, insurers, and
others in connections with the shipment. On ocean exports, upon
request, the Company shall provide a detailed breakout of the
components of all charges assessed and a true copy of each pertinent
document relating to these charges. In any referral for collection
or action against the Customer for monies due the Company, upon
recovery by the Company, the Customer shall pay the expenses
of collection and/or litigation, including a reasonable attorney
fee.
20.
Severability.
In the event any Paragraph(s) and/or portion(s) hereof is found
to be invalid and/or unenforceable, then in such event the remainder
hereof shall remain in full force and effect.
21.
Governing Law; Consent to Jurisdiction
and Venue. These terms and conditions of service and the relationship
of the parties shall be construed according to the laws of the
State of California
without giving consideration to principals of conflict of law.
Customer and Company
(a)
irrevocably consent to the jurisdiction of the United
States District Court and the State courts of California;
(b) agree that any action relating
to the services performed by Company, shall only be brought
in said courts;
(c) consent to the exercise of in
personam jurisdiction by said courts over it, and
(d) further agree that any action
to enforce a judgment may be instituted in any jurisdiction.
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