These Terms and Conditions of Service ("T&C") constitute a contract between the COMPANY, its AFFILIATES and the CUSTOMER. In the event COMPANY and/or AFFILIATE renders services and/or issues a document containing terms and conditions governing such services, the terms and conditions set forth in that document shall govern those services to the extent they conflict with the terms in this document.
1. Unless specifically provided for otherwise, the following definitions shall apply:
a) "CUSTOMER" shall mean and include the consignor, shipper, CUSTOMER, consignee, receiver, and retriever of the GOODs as well as any person, including any corporation, COMPANY or other legal entity having any interest in the GOODs, or anyone acting on behalf of any such person.
b) "COMPANY" shall mean "PEGASUS WAREHOUSING AND DISTRIBUTION, INC." and any logistics COMPANY performing any service(s) pursuant to these T&Cs. Any reference to COMPANY shall include a reference to AFFILIATE(s).
c) "AFFILIATE" shall mean any corporate affiliate, subsidiary, or parent COMPANY of the COMPANY.
d) "GOODS" and "GOODs" shall mean the cargo tendered by or on behalf of the CUSTOMER for services to be performed by COMPANY pursuant to these T&Cs and shall include any and all packaging and/or containers not supplied by or on behalf of COMPANY. Any goods accepted by COMPANY shall constitute GOODS under these T&Cs and this Contract. Goods in other forms shall be interpreted based upon context.
e) "T&C" shall mean these contract terms and conditions entitled "Terms and Conditions of Service." as applicable to this Contract.
f) "AGREEMENT" shall mean these T&Cs and may be used interchangeably with the term "Contract".
g) "FORCE MAJEURE EVENT" shall mean any circumstance beyond the reasonable control of COMPANY, including but not be limited to, natural disasters, strikes or lockouts or stoppage/restraint of labor from whatever cause, equipment failure not attributable to the fault of COMPANY (to include electrical power, heat, light, air conditioning or communications equipment), civil unrest, acts of war or armed conflicts, acts of public authorities, or acts or threatened acts of public enemies, hijackers or assailing thieves, seizure under legal process, embargo, prohibition of import or export of GOODs, closure of public highways, railways, airways or shipping lanes, port congestion or unavailability of containers, chassis, trailers, trucks or drivers. Upon the occurrence of such an event, the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one that nevertheless requires COMPANY to continue to protect the GOODs, CUSTOMER agrees to pay the storage or similar charges associated with COMPANY's obligation during the continuance of the force majeure. All GOODs are stored, handled, and transported at CUSTOMER's sole risk of loss, damage, or delay caused by any of the above.
SCOPE OF TERMS AND CONDITIONS OF SERVICE
These T&Cs shall apply to all services performed by COMPANY or AFFILIATE. Services governed by these T&Cs shall specifically include, but not necessarily be limited to, warehousing and distribution handling services such as consolidation, deconsolidation, transloading, labeling, packing and cross-docking.
The act of tendering GOODS to COMPANY or any AFFILIATE or agent shall constitute acceptance of and agreement to these T&Cs.
3. 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.
4. CUSTOMER purchase orders, receipts, order forms and all other CUSTOMER documents shall be deemed to have been provided for convenience purposes only and to the extent any term therein conflicts with any term of these T&Cs, these T&Cs shall control.
5. Unless either: (1) transportation and/or drayage services are performed with COMPANY-operated equipment; or (2) COMPANY issues a bill of lading identifying itself as "carrier," any transportation services rendered by COMPANY in conjunction with warehousing and distribution handling services or otherwise are rendered strictly in COMPANY's capacity as CUSTOMER's agent and/or property broker, as defined under 49 USC 13102 or any successor statute and in no event shall COMPANY or any COMPANY Affiliate be deemed to be a carrier of any type or a freight forwarder as defined under 49 USC 13102 or any successor statute.
6. Third-party freight forwarders, carriers and other vendors' liability limit for loss or damage shall apply to all GOODs handled by them; COMPANY will not request excess valuation coverage on CUSTOMER's behalf unless specific written instructions from the CUSTOMER in advance of the tender of the GOODs to such third-party, and CUSTOMER agrees to pay any additional charges therefore.
7. In the event that COMPANY or any AFFILIATE performs transportation and/or drayage services with COMPANY-operated equipment, or in the event that COMPANY or any COMPANY Affiliate issues a bill of lading identifying itself as "carrier," or in the event that COMPANY is held liable for transportation and/or drayage for any reason notwithstanding paragraphs 5 and 6 of these T&Cs, then such carriage shall be governed by these T&C including, but not limited to, the liability limitation at paragraph 38(a)).
CUSTOMER WARRANTIES AND RESPONSIBILITIES
8. The party tendering the GOODs warrants their right to lawful possession of the GOODs and also warrants their authority to bind each and every CUSTOMER to these T&Cs. Such party also represents and warrants that it has complied with all applicable privacy and data protection laws with respect to personally identifiable information about individual contacts of CUSTOMER and clients of CUSTOMER, has obtained consent to disclose and transfer such data to COMPANY, and consents that COMPANY may use such data for performing services and for general administration processes which may involve communicating such data to others.
9. CUSTOMER warrants that it will provide COMPANY with information concerning the GOODS which is accurate, complete and sufficient to allow COMPANY to comply with all laws and regulations concerning the storage, handling and transporting of the GOODS.
10. CUSTOMER will indemnify and hold COMPANY harmless from all loss, cost, penalty and expense (including reasonable attorneys' fees) which COMPANY pays or incurs as a result of CUSTOMER failing to fully discharge this obligation.
11. CUSTOMER warrants it shall not ship GOODs to COMPANY or any AFFILIATE with COMPANY or AFFILIATE being the named, nominated or otherwise designated consignee absent prior written permission from COMPANY on a shipment-by-shipment basis.
12. All packages/shipments are subject to the size and weight limitations, as may be amended from time to time by COMPANY.
13. CUSTOMERrepresentsandwarrantsthatallGOODS deposited with COMPANY shall be properly marked and packaged for storage and handling. The CUSTOMER shall furnish at or prior to time of deposit a manifest showing marks, brands and/or sizes to be kept and accounted for separately, and the class of storage and other services desired.
14. CUSTOMER warrants that prior to, or simultaneous to, the deposit of GOODs with COMPANY for any service CUSTOMER will provide COMPANY with comprehensive and accurate information concerning the GOODs sufficient to facilitate COMPANY's compliance with all laws and regulations concerning the storage, handling and transportation of the GOODs. Inclusive thereof, CUSTOMER shall have the exclusive burden to provide Verified Gross Mass (VGM) of GOODs as obtained on calibrated and certified equipment. COMPANY shall be entitled to rely on the accuracy of the weight information provided by CUSTOMER for all purposes, including compliance with the VGM requirement under the Safety of Life at Sea Convention (SOLAS) if applicable. COMPANY shall be entitled to tender, counter-sign or endorse such certificates, weight tickets or other weight data provided by CUSTOMER as COMPANY's own VGM to third parties, including to any vessel operator(s) and/or other equipment operators as applicable.
15. CUSTOMER acknowledges that COMPANY is not a guarantor of the condition of such GOODS under any circumstances, including, but not limited to, hidden, concealed, or latent defects in the GOODS. Concealed shortages, damage, inherent vice or tampering will not be the responsibility of COMPANY.
16. In the event COMPANY or any AFFILIATE is named, nominated or otherwise designated as consignee, CUSTOMER agrees to notify the carrier, with copy of such notice to COMPANY, that COMPANY is a COMPANY and has no beneficial title or interest in such GOODs. CUSTOMER further agrees to indemnify and hold harmless COMPANY from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention or charges of any nature, in connection with GOODs so shipped. CUSTOMER further agrees that, if it fails to obtain COMPANY's prior written consent and fails to notify the carrier as required in this paragraph, COMPANY 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.
17. In the event COMPANY performs any type of packing or repacking for CUSTOMER, CUSTOMER shall be exclusively responsible for inspecting and acceptance testing of such packaging as being suitable for CUSTOMER's purposes and/or the anticipated rigors of transportation.
18. As to GOODS which are the subject of any international shipment, CUSTOMER warrants and agrees:
a) to act as the importer, exporter, or other principal party under all Import and Export Laws;
b) that CUSTOMER is solely responsible for complying with all Import and Export Laws applicable to the export, re-export, import, transshipment, transfer, or release of any GOODS a) from any country;
c) that CUSTOMER is solely responsible for (i) properly classifying under the Import and Export Laws all GOODs, Software, and Technology; (ii) obtaining any required licenses and other authorizations for export, re-export, import, transshipment, transfer, or release; (iii) correctly completing and filing with any government, as appropriate, all documents required under the Import and Export Laws; and (iv) ensuring that all export- related documents, including shipping and sales documents, generated in connection with the Services performed pursuant to this Agreement conform to and are maintained in accordance with the Import and Export Laws;
d) that CUSTOMER is solely responsible for providing accurate written instructions to COMPANY in advance of any export, re-export, import, transshipment, transfer, release, delivery, pickup, or other activity in relation to any GOODs which instructions will be in compliance with all Import and Export Laws and will set forth all information required for COMPANY to comply with all Import and Export Laws in connection with that export, re- export, transshipment, transfer, release, delivery, pickup, or other activity.
19. Where damage occurs to GOODs for which neither COMPANY nor any COMPANY Affiliate is liable, the CUSTOMER shall be responsible for the cost of removing and disposing of such GOODs and the cost of any environmental cleanup and site remediation resulting from the loss or injury of GOODs. CUSTOMER shall also reimburse COMPANY for all efforts taken to mitigate CUSTOMER's losses under circumstances of any FORCE MAJEURE EVENT, including but not limited to storage charges
20. CUSTOMER warrants that its insurers have waived all rights of subrogation for any losses or damages in excess of COMPANY's liability under these T&C.
21. CUSTOMER warrants and agrees to fully and completely release and forever discharge and indemnify COMPANY and COMPANY's Affiliates from and against all claims, damages and/or liabilities arising out of or caused by CUSTOMER's breach of any of its obligations, warranties and/or representations under paragraphs 8 through 20 of these T&C.
22. Except as may be allowed by COMPANY in its discretion, CUSTOMER warrants that it shall in no event deposit with COMPANY for any services or for any reason the following commodity types "Restricted Goods" or "Restricted Commodities"
a)any type of hazardous materials, hazardous waste, dangerous goods, or other GOODs of any type containing hazardous materials or dangerous goods regulated under or subject to Title 49 of the Code of Federal Regulations, or the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air, or the International Air Transport Association (IATA) Dangerous Goods Regulations, or the International Maritime Dangerous Goods Code ("Dangerous Goods"). Dry ice packages/shipments prepared in accordance with applicable regulations do not require a Shipper's Declaration, and there is no special handling fee for transporting dry ice. However, dry ice must be identified at time of making order for services. All dry ice packages/shipments require the proper marking and labeling. COMPANY shall not be liable to add dry ice to packages/shipments.
b) firearms, ammunition, alcohol, tobacco and/or any type of GOODs, which may be regulated by a governmental body, entity or agency, including but not limited to those GOODs which are regulated by the United States Food and Drug Administration, the United States Department of Agriculture, the United States Drug Enforcement Administration, the United States Bureau of Alcohol, Tobacco, Firearms and Explosives, and analogous regulatory agencies in countries in which the Services are provided.
c) illegal and/or counterfeit merchandise, perishables, meat/fish/poultry, plants and plant materials (including but not limited to seedlings, plant plugs and cut flowers), animal remains, live animals, human remains, infectious substances, medical waste, human or animal biological substances, bullion, collector's coins and/or stamps, gemstones, weapons, explosives, ammunition, ivory items, negotiable instruments, currency, pharmaceuticals, narcotics, particularly fragile items (including but not limited to electronic and electrical devices, scientific testing equipment, fluorescent tubes, neon lighting, neon signs, x-ray tubes, laser tubes, light bulbs, flat panel display screens of all types, fragile glass, crystal, scale models, porcelain or china).
d) any other commodity or type of GOODs determined as a Restricted Commodity by COMPANY in its sole discretion.
23. COMPANY reserves the right to subject Restricted Goods to any additional terms in COMPANY's discretion, to which terms CUSTOMER shall be deemed to have agreed upon tender of any Restricted Commodity to COMPANY for any services.
24. For any Restricted Goods that are accepted by COMPANY for any service, packaging must be first approved by COMPANY. COMPANY's approval of packaging for services shall not serve as a representation or warranty by COMPANY of sufficient, adequate or proper packing, but the failure of CUSTOMER to obtain COMPANY's prior approval of packaging shall relieve COMPANY from any liability for loss or damage in addition to all other remedies of COMPANY under applicable law.
25. COMPANY will not provide any special handling for shipments bearing labels "Fragile," "Refrigeration Required" or orientation markings, such as "UP" or "THIS END UP" arrows.
26. In the event COMPANY accepts for any services one or more of the "Restricted Commodities" for any reason, these T&C shall apply, including the following commodity-specific special terms:
a) Dangerous Goods may not be included in the same shipment with non-regulated commodities. Dangerous Goods and non-Dangerous Goods shall be declared separately. CUSTOMER shall have the sole obligation and responsibility to properly identify Dangerous Goods and to comply with any and all regulations applicable to the shipment and transportation of such Dangerous Goods.
b) Perishable Goods shall not be subject to any special handling unless agreed to in writing by COMPANY in advance. CUSTOMER is responsible that thermostatic controls have been adequately set before COMPANY's receipt of any perishable goods and, if necessary, that the perishable Goods have been precooled before their stuffing into conveyances and/or containers. The CUSTOMER's attention is drawn to the fact that refrigerated conveyances and/or containers are not designed to lower temperature of perishable goods that have not been presented for stuffing at or below their designated carrying temperature. Unless otherwise agreed, any Perishable Goods accepted by COMPANY for any services must be packed to withstand without spoilage a minimum of 48 hours without external power or temperature control or special care of any kind and must be packed to withstand without spoilage a minimum of 24 hours beyond the scheduled pickup or delivery date.
c) As to any firearms or ammunition, CUSTOMER warrants that either the shipper or recipient is a licensed manufacturer, licensed importer, licensed dealer or licensed collector, and that both are authorized to ship and/or receive such firearms or ammunition by federal, state or local regulations. Firearms may not be sent C.O.D. Upon presenting the commodity for services, the shipper is required to inform COMPANY that the package/shipment contains a firearm. Firearms may not be tendered in one complete piece. When tendered for services, the firearm must be rendered "inoperable", either by removing the firing pin in the gun and disconnecting the barrel or by some other means so the shipment does not contain a completely assembled, usable weapon. The outside of the shipment should bear no label, marking or other written notice that a firearm is contained within. This includes the abbreviation of the name of the shipper or recipient, if the name would clearly indicate that the shipment could contain a firearm. Firearms and ammunition may not be shipped in the same package/shipment. Ammunition is always an explosive and must be shipped as "Dangerous Goods".
d) As to alcohol and/or tobacco, the shipper and consignee must both be either licensed wholesalers, dealers, distributors, manufacturers or importers.
e) As to any other GOODs which are subject to state or federal regulations with respect to their handling, COMPANY and CUSTOMER shall agree to terms governing their handling in advance of their delivery to COMPANY.
27. COMPANY may, without any liability and at CUSTOMER's sole expense, isolate and/or relocate and/or destroy and/or abandon and/or render innocuous Restricted Commodities if at any time in COMPANY's reasonable discretion such Restricted Commodities present an actual or potential threat to property or life and/or may be in violation of applicable law.
28. In the event a recall, field alert, product withdrawal
or field correction (together, "Recall") may be necessary with respect to any GOODs provided under this Contract, CUSTOMER shall immediately notify COMPANY in writing. COMPANY will not act to initiate a Recall without the express prior written approval of CUSTOMER unless otherwise required by applicable laws.
29. In the event that COMPANY shall agree to handle GOODs under a Customs Bond, a charge in addition to regular rates will be made for merchandise in bond and where a COMPANY receipt covers GOODs in U.S. Customs bond, COMPANY shall have no liability for GOODs seized or removed by U.S. Customs.
30. The cost of any hold, seizure, or "Recall" asserted by Customs, any other state or federal government agency, or court order, shall be borne by CUSTOMER. CUSTOMER shall indemnify and hold harmless the COMPANY from all loss, cost, penalty, and expense (including reasonable attorneys' fees) which COMPANY pays or incurs as a result of such action.
31. Where loss or damage occurs to tendered, stored or handled GOODS, for which COMPANY is not liable, the CUSTOMER shall be responsible for the cost of removing and disposing of such GOODS and the cost of any environmental cleanup and site remediation resulting from the loss or damage to the GOODS.
32. CUSTOMER shall indemnify and hold COMPANY harmless against: any and all extra costs that COMPANY has incurred for any reason whatsoever in connection with the Restricted Commodities and any and all liabilities incurred by COMPANY relating to and/or arising from the Restricted Commodities and/or CUSTOMER's obligations relating to the Restricted Commodities. CUSTOMER's indemnity obligation under this paragraph shall include, to the maximum extent allowable by law, circumstances of COMPANY's fault or strict liability and/or the fault or liability of third parties for whom CUSTOMER might not be liable absent this paragraph.
33. Signature release service is not available for packages/shipments that contain Restricted Commodities.
COMPANY'S RIGHTS AND LIABILITIES
34. COMPANY shall have the right to refuse goods for services and/or limit quantities for any reason in its discretion. Without any obligation to do so, COMPANY shall have the unrestricted liberty to inspect the packaging and contents of accepted GOODs for any purpose and to inquire and verify the accuracy or sufficiency of information provided and to seek assurances. Any discrepancies may result in delay and/or cancellation of services and/or additional charges assessed by COMPANY.
Where more than one type of service is indicated per package/shipment or if no service is indicated, COMPANY shall have the right (but not the obligation) to assume that CUSTOMER's shipment requires the highest level service available at the time.
35. Subject to 14 days prior notice by COMPANY, COMPANY shall have the right to move, at its expense, any GOODs in storage from the COMPANY in which they may be stored to any other COMPANY of COMPANY or AFFILIATE. COMPANY shall have the further liberty without any prior notice to move the GOODs, at its expense, within and between any one or more of the COMPANY buildings which comprise a single COMPANY complex.
36. Subject to 14 days prior notice by COMPANY to CUSTOMER, COMPANY shall have the right in its discretion to discard, destroy or sell by private or public auction or sale any GOODs deemed by COMPANY to be a hazard to other property, the COMPANY and/or human life if such GOODs are not removed within the notice period. For all other GOODs, COMPANY shall have the right to require that the CUSTOMER remove the GOODs from the facility of COMPANY for any reason, subject to 45 days prior notice by COMPANY to CUSTOMER. In the event the Goods are not timely removed within this 45 day period, COMPANY shall have the right to, in its sole discretion, discard, destroy or sell the GOODs by private or public auction without further notice. In the event that COMPANY's sale or auction of GOODs produces proceeds in excess of the costs of sale plus debts to COMPANY and AFFILIATE, such excess shall be refunded to CUSTOMER.
37. COMPANY shall have no recordkeeping obligations to CUSTOMER and shall only keep those records that it is required to maintain under applicable law.
38. Except as otherwise agreed to in writing between COMPANY and CUSTOMER, the maximum aggregate liability of COMPANY, AFFILIATE and any subcontractor(s) for whom COMPANY is liable shall be limited as follows:
a) in the event of loss of or damage to GOODs, however caused, 0.50 (fifty cents) per pound of the portion of the GOODs lost or damaged, never to exceed $50 per occurrence or shipment;
b) in the event of financial loss other than loss or damage to GOODs, including but not limited to an error or omission, $50 per shipment or transaction, never to exceed $500 in the annual aggregate.
39. CUSTOMER may obtain additional protection in excess of the foregoing liability limitations at paragraph 38 by making a written request and paying an additional charge prior to the provision of services, always subject to COMPANY's written approval or confirmation prior to the provision of services. The knowledge of COMPANY or any AFFILIATE of the value of GOODs and/or CUSTOMER's declaration of the value of the GOODs to COMPANY or any AFFILIATE in regular course or for any other purpose, such as for Customs purposes, shall in no event constitute a declared value of the GOODs for liability purposes. Declared value limitations apply as follows:
a) $50 for any shipments that include commodities of artwork (including but not limited to paintings, drawings, vases, tapestries, limited-edition prints, fine art, statuary, sculptures, collector's items, customized or personalized musical instruments); film (including but not limited to photographic images, negatives, chromes, slides and printed matter); any commodity that is particularly susceptible to damage or which has a subjective market value; antiques (including but not limited to furniture, tableware, glassware, collector's items such as coins, stamps, sports cards, souvenirs and memorabilia); glassware (including but not limited to signs, mirrors, ceramics, porcelains, china, crystal, glass, framed art, flat panel display screens, plasma screens, and any other commodity with similar fragile qualities); jewelry (including but not limited to costume jewelry, watches and their parts, mount gems or stones (precious or semi-precious), industrial diamonds and jewelry made of precious metal; furs (including but not limited to fur clothing, fur-trimmed clothing and fur pelts); precious metals (including but not limited to gold and silver bullion or dust, precipitates or platinum except as an integral part of electronic machinery); stocks, bonds, cash letters or cash equivalents (including, but not limited to, food stamps, postage stamps, traveler's checks, lottery tickets, money orders, pre-paid calling cards, bond coupons and bearer bonds).
b) $100 for any C.O.D. shipment;
c) $1,000 for any other shipment.
Additional restrictions for declaration of value for greater liability may apply. Any effort to declare a value in excess of the maximums allowed is null and void and the acceptance for services of any shipment bearing a declared value in excess of the allowed maximums does not constitute a waiver by COMPANY of the allowed maximum. The declared value for each package/shipment will be determined by dividing the total declared value by the number of packages within the shipment, unless verifiable evidence supporting a different allocation is presented. In no event will the COMPANY's liability for a declared value shipment exceed the actual value or loss incurred.
40. In no event shall COMPANY be liable for an amount greater than the value of the affected portion of the GOODs or for any delay, loss of electronic data, consequential, indirect, incidental, or punitive damages even if COMPANY has been put on notice of the possibility of such damages. COMPANY shall have no liability for loss of, or damage to, the GOODs or any portion of the GOODs in circumstances of: inherent defect, quality or vice of the GOODs; defective packing not performed by the COMPANY; inadequate or inaccurate information provided by CUSTOMER; any event not attributable to the negligence of COMPANY, AFFILIATE or subcontractors for whom COMPANY is responsible; ordinary shrinkage, and/or any FORCE MAJEURE EVENT. COMPANY shall have no default liability for inventory shortages or mysterious or unexplained disappearance of GOODs and in such scenario, the burden of proof of COMPANY liability shall lie exclusively with the CUSTOMER to the maximum extent allowable by law. GOODs retrieved from COMPANY, without written exception for damaged condition, shall be deemed retrieved from COMPANY in good order and condition. COMPANY's liability shall be predicated on a duty of reasonable care, and COMPANY shall have no liability for any damages not directly attributable to COMPANY's breach of such duty except to the extent mandated by applicable law. COMPANY makes no warranties, representations or guarantees, either express, implied, statutory, or otherwise, oral or written, with respect to services furnished under these T&C, including without limitation any implied warranties of merchantability or fitness for a particular purpose.
41. Neither COMPANY nor any AFFILIATE shall have any liability for loss or damage to GOODs while in the custody of third-party carriers, except as for any error or omission on the part of COMPANY or such AFFILIATE in making any carriage preparations or carriage arrangements to the extent applicable. Otherwise, claims for such loss or damage shall be made directly to the responsible third-party carrier(s). Third-party carriers limit their liability and, in the absence of CUSTOMER's prior written instructions to COMPANY to declare a greater value on CUSTOMER's behalf, or in the event the third-party carrier refuses to agree to a higher declared value for liability, at COMPANY's discretion, the GOODs may be tendered to the third-party carrier, subject to the terms of the third-party carrier's limitations of liability and/or terms and conditions of service, this paragraph shall not apply in the event: (1) of transportation and/or drayage services performed with COMPANY-operated equipment; or (2) COMPANY issues a bill of lading identifying itself as "carrier."
42. NeitherCOMPANYnoranyAFFILIATEshallbeliable for demurrage or detention, delays in unloading inbound conveyances or containers, or delays in obtaining and loading outbound conveyances or containers. In the event COMPANY or any AFFILIATE shall nevertheless be held liable, such liability shall be deemed a single error or omission within the meaning of paragraph 38(b)) of these T&C.
43. COMPANY shall not be responsible for consequences of any delays in the delivery or receipt of instruction or authorization caused by a failure of any electronic systems or event beyond COMPANY's control.
44. With respect to any claim arising from or related to this Agreement, or otherwise arising from the relationship of the parties, in no event will COMPANY be liable for chargebacks, special, indirect, exemplary, punitive, or consequential damages of any kind, including but not limited to lost profits, lost sales, or damages due to business interruption, regardless of whether such damages were foreseeable, or COMPANY had notice of the possibility of such damages.
45. If COMPANY negligently mis-ships GOODS, the COMPANY shall pay the reasonable transportation charges incurred to return the mis-shipped GOODS to the facility from which it was shipped. If the consignee fails to return the GOODS, COMPANY'S maximum liability shall be deemed as set forth in paragraph 38. COMPANY shall have no liability for damages due to the consignee's acceptance or use of the GOODS whether such GOODs be those of the CUSTOMER or another.
46. Any liability of COMPANY and/or AFFILIATE (s) shall be subject to the following conditions precedent:
a) COMPANY receiving written notice of claim within 90 calendar days after delivery of the GOODs or within 90 days from the date CUSTOMER became aware or should have become aware of the damage or loss which is the subject of the claim, whichever is shorter;
b) Legal action being commenced against COMPANY within 9 months after delivery of the GOODs or within 9 months from the date CUSTOMER became aware or should have become aware of the damage or loss which is the subject of the claim, whichever is shorter;
c) COMPANY or its representative being extended a reasonable opportunity to survey and/or inspect claimed damages and damaged GOODs being maintained by CUSTOMER for such purpose and for purposes of salvage mitigation pending claim resolution.
To the extent otherwise applicable, and for good and sufficient consideration hereby acknowledged received, CUSTOMER expressly waives, pursuant to 49 U.S.C. 14101, the minimum periods for the filing of claims and civil actions, as defined under 49 U.S.C. 14706(e)(1), and any successor statute(s). All claims are subject to proof of loss and proof of value.
47. The Parties shall keep in confidence and not disclose to any third-party (i) the terms of these T&Cs, and (ii) any confidential or proprietary information ("Confidential Information") that either learns about the other party, such as, but not limited to, the rates, value, origin, destination, or consignee of any GOODs or shipment made hereunder.
a) The parties may disclose such terms and information to the extent required by law, to obtain financing, to substitute service providers to the extent necessary to provide such substitute service, or to auditors retained for the purpose of assessing the accuracy of invoices or credits, or receipt for GOODs.
b) COMPANY may disclose and report, whether on a mandatory or voluntary basis, any and all regulatory non-compliance to authorities; such authorities may exercise forfeiture and/or assess penalties against CUSTOMER.
c) COMPANY shall not be liable for the loss of CUSTOMER data. COMPANY shall be responsible solely for restoring data from most recent backup.
d) COMPANY shall not be liable for loss or release of CUSTOMER data as a result of security breach. COMPANY shall be responsible solely for advising CUSTOMER of such a breach and requiring additional verifications of authority with respect to subsequent release of CUSTOMER GOODs.
FEES AND CHARGES
48. Quotations as to fees, rates and/or other charges given by COMPANY to the CUSTOMER are for informational purposes only and are subject to change without notice; no quotation shall be binding upon COMPANY unless COMPANY in writing agrees to undertake the services at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the CUSTOMER and COMPANY.
49. The quoted rates are based on the assumptions identified in the quotation. In the event the information changes, is untrue or differs greatly from the description provided by CUSTOMER, then COMPANY reserves the right to amend the quotation or immediately terminate this Agreement.
50. Any quoted handling charges for COMPANY services apply exclusively to ordinary labor involved in receiving GOODs at COMPANY door, placing GOODs in storage and returning GOODs to COMPANY door. Minimum charges may apply. Extra charges not quoted may apply under certain circumstances, including but not limited to:
a) extra labor required because of unusually fragile GOODs, damaged GOODs, physically awkward GOODs or other GOODs requiring special handling for any reason at the discretion of COMPANY;
b) extra labor required to unload GOODs from, or load GOODs on, conveyances or containers not at COMPANY door;
c) extra labor required or performed for any reason other than the ordinary receipt of GOODs at COMPANY door, placing GOODs in storage and returning GOODs to COMPANY door, including but not limited to consolidation and/or deconsolidation labor.
d) need for dunnage, bracing and/or other packing materials or special services;
e) deposit and/or retrieval of GOODs and/or other services performed outside of ordinary business hours, if allowed in COMPANY's discretion.
51. All fees and charges are payable as a condition of delivery of GOODS by COMPANY.
52. Where CUSTOMER has applied for and has been granted credit terms by COMPANY:
a) Fees for services are billed or billable on a monthly basis.
b) Storage charges are billed or billable by COMPANY in advance on the first day of each month. All other charges will be invoiced in accordance with the customary practice of COMPANY, details of which shall be provided upon request. CUSTOMER payments not received by COMPANY within 30 days after the COMPANY invoice date will cause
CUSTOMER's account to be considered past due and late fees of 1.5% per month will apply.
53. CUSTOMER, shippers, consignees and bill-to parties are jointly and severally liable for the compensation of COMPANY. COMPANY's charges may be reversed to the responsible parties if a shipment is refused or payment is not made by the original bill-to party.
54. CUSTOMER agrees to pay COMPANY in U.S. dollars within approved credit terms after receipt of invoice, and in the absence of approved credit terms upon receipt of invoice. In the event of a good faith dispute regarding an invoice, COMPANY shall pay any amounts that are not in dispute and, within seven (7) days of receipt of the invoice, provide written notice, detailing all bases for its dispute and the amounts that are in dispute, or else CUSTOMER will be deemed to have waived any dispute with respect to the invoice. Payments received by COMPANY may be applied first to late charges or the oldest storage charges due, at COMPANY's sole discretion. Failure by the CUSTOMER to timely pay all charges hereunder shall be considered a material breach of this Agreement, entitling COMPANY to; (i) withhold Services; (ii) enforce its COMPANY's lien;(iii) terminate this Agreement and/or; (iv) exercise any other remedy available by law or by virtue of this Agreement. In the event that COMPANY elects to terminate the Agreement, such termination shall not relieve the CUSTOMER from payment or satisfaction of any amounts or obligations accrued and outstanding as of the effective time of termination (iv) COMPANY shall not be liable to CUSTOMER for not continuing to perform services for CUSTOMER.
55. Unless all unpaid charges incurred with respect to the GOODs are paid in full, delivery or transfer thereof may be refused until full payment is received.
56. COMPANY shall have a general and continuing lien on any and all GOODs and property of CUSTOMER coming into COMPANY's actual or constructive possession or control for monies owed to COMPANY or any COMPANY Affiliate with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both. 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; the depositing CUSTOMER shall notify all parties having an interest in the GOODs of COMPANY's rights and/or the exercise of such lien. Unless, within thirty-five days of COMPANY issuing notice of lien, CUSTOMER satisfies the full amount owing COMPANY or provides alternative security satisfactory to COMPANY, COMPANY shall have the right to sell such GOODs and property at public or private sale or auction. In the event that COMPANY's sale or auction of GOODs or property produces proceeds in excess of the costs of sale plus debts to COMPANY and COMPANY Affiliates, such excess shall be refunded to CUSTOMER.
57. As to any claim against the COMPANY for overcharge, reimbursement and/or other billing dispute, the time-for- claim set forth in paragraph 46(a)) shall be increased to 180 days, however, the time-for-suit set forth in paragraph 46(b)) shall apply for unrevised, unused credit balances expire after 180 days from date of credit memo issuance.
58. These Terms and Conditions of Service, the relationship of the parties, and disputes between the parties shall be construed according to the laws of the State of California, without giving consideration to principles of conflict of law.
59. Titles are for convenience only.
60. The division of these T&Cs into sections or paragraphs is for convenience of reference only and shall not affect the interpretation or construction of these T&C.
61. These T&Cs may only be modified, amended and/or supplemented by a written instrument signed by both COMPANY and CUSTOMER.
62. A waiver of any right by COMPANY will not constitute a waiver of such right on any subsequent occasion.
63. If any provision of these T&Cs is determined to be invalid, such invalidity will not affect the validity of the remaining portions of these T&C.
64. CUSTOMER and COMPANY
a) irrevocably consent to the jurisdiction of the United States District Court, Central District of California, Western Division, and the State courts of California sitting in Los Angeles.
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;
e) if applicable, and for good and sufficient consideration acknowledged hereby, CUSTOMER expressly waives pursuant to 49 U.S.C. 14101 the venue provisions of 49 U.S.C. 14706(d) to the extent inconsistent with the foregoing.