TERMS
AND CONDITIONS OF SERVICE
These terms and conditions of service
constitute a legally binding contract between the "Company" and the
"Customer". In the event the
Company renders services and issues a
document containing Terms and Conditions governing such services, the Terms and
Conditions set forth in such other
document(s) shall govern those services.
1. Definitions.
(a) "Company" shall mean TRANS-WORLD SHIPPING CORP., 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, OTls,
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 to render services with respect to the goods,
shall not be
construed to mean that the Company warrants or
represents that such person or firm will render such services nor does Company
assume responsibility or liability for any
actions(s) and/or inaction(s) of such third parties and/or its agents, and
shall not be liable for
any delay or loss of any kind, which
occurs while a shipment is in the custody or control of a third party or the
agent of a third party; all
claims in connection with the Act of a
third party shall be brought solely against such party and/or its agents; in
connection with any such
claim, the Company shall reasonably
cooperate with the Customer, which shall be liable for any charges or costs
incurred by the
Company.
5. Quotations Not Binding. Quotations as to fees, rates of duty,
freight charges, insurance premiums or other charges given by the
Company to the
Customer are for
informational purposes only and are subject to change without notice; no
quotation shall be binding
upon the Company unless the Company in
writing agrees to undertake the handling or transportation of the shipment at a
specific rate
or amount set forth in the quotation
and payment arrangements are agreed to between the Company and the Customer.
6. Reliance On Information
Furnished.
(a) Customer acknowledges that it is
required to review all documents and declarations prepared and/or filed with
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 data to 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 therefore; in the absence of
written instructions or the refusal of the third party to agree to a higher
declared value, at
Company's discretion, the goods may
be tendered to the third party, subject to the terms of the third party's
limitations of liability and/or
terms and conditions of service.
8. Insurance. Unless requested to do so in writing
and confirmed to Customer in writing, Company is under no obligation to procure
insurance on Customer's behalf; in all cases,
Customer shall pay all premiums and costs in connection with procuring
requested
insurance.
9. Disclaimers; Limitation of
Liability.
(a) Except as specifically set forth
herein, Company makes no express or implied warranties in connection with its
services;
(b) Subject
to (c) below, Customer agrees that in connection with any and all services
performed by 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
therefore, 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 have no 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 annurn 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 on-going 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
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 wit 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
Customer and Company
(a) irrevocably
consent to the jurisdiction of the United States District Court and the State
courts of
(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.
Copyrighted by the National Customs Brokers and
Forwarders Association of