MARTIN E. BUTTON, INC.
COSDEL INTERNATIONAL TRANSPORTATION
TERMS AND CONDITIONS OF SERVICE
These terms and conditions of service constitute a legally binding contract between "Company" and "Customer". In the event Company renders services and issues a document containing other Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services to the extent of any conflict between the Terms and Conditions set forth in such other document and these Terms and Conditions of Service.
(a) "Company" shall mean Martin E. Button, Inc. or Cosdel International Transportation, as applicable, and its subsidiaries, related companies, affiliates, agents and/or representatives;
(b) "Customer" shall mean the person or entity for which Company is rendering service, as well as its agents and/or representatives. Customer represents that it is either the shipper of the cargo involved or its disclosed agent. It is the responsibility of Customer to provide notice and copy(s) of these terms and conditions of service to all such agents, representatives, and principals, where applicable;
(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.
According to the terms of this agreement and in consideration of service fees charged, the undersigned Customer retains Cosdel International Transportation ("Cosdel") as its agent to arrange transportation services and to provide logistics services. These services may include but are not limited to: preparing and/or processing export declarations, providing and/or arranging Customs brokerage services; booking, arranging for or confirming cargo space; preparing and/or processing delivery orders or dock receipts; preparing and/or processing bills of lading; arranging for and/or providing crating, packing, unpacking, and warehouse storage; arranging for cargo insurance; handling freight or other monies advanced by shippers, or remitting or advancing freight or other monies or credit in connection with the dispatching of shipments; and giving advice concerning letters of credit, licenses or inspections, or other documents or issues relating to the dispatch of cargo. Customer understands and agrees that Cosdel is not a carrier and that the terms and conditions of the storage receipts of warehousemen and contracts of carriage of the water, road, or air carriers which Cosdel retains will apply to Customer as if Customer had entered into those contracts itself. Under some circumstances, Cosdel may provide warehouse service, ocean carriage in its capacity as a Non-Vessel Operating Common Carrier, or air carriage in its capacity as an Indirect Air Carrier. In such instance, the terms of Cosdel's warehouse receipt or bill of lading will apply as if it had been issued to Customer.
Customer may retain Martin E. Button, Inc., or another designated customs broker as its customs brokerage agent for the purpose of performing duties in connection with the entry and release of goods, post entry services, securing of export licenses, filing of export documentation on behalf of Customer, and other related dealings with Government Agencies.
As to all services, Company acts as an independent contractor.
3. Limitation of Actions.
(a) For motor vehicle shipments, Customer agrees to inspect its shipment upon delivery and provide notice of any loss or damage prior to acceptance of the motor vehicle by the owner, owner's agent, or owner's designated representative. Such notice shall be in the form of a written exception report signed by the driver and/or warehouseman at delivery which is at the point at which the vehicle is physically turned over to the owner, owner's agent, or owner's designated representative. No claim for loss or damage to any motor vehicle will be accepted or considered after the vehicle is turned over at delivery.
For all other shipments, Customer agrees to inspect its shipment upon delivery and unless subject to a specific statute or international convention, all claims against Company for loss or damage must be made in writing and received by Company, within three (3) days of delivery for ocean shipments and five (5) days for air or ground shipments; failure to give Company timely notice shall be a complete defense to any suit or action commenced by Customer against Company. Any notice of delay must be made in writing no later than five (5) days after the anticipated date of delivery. In any event, Company is not liable for any loss or damage due to delay.
(b) To the extent not governed by applicable statutes, all suits against Company must be filed and properly served on Company within one (1) year from the date on which the services were completed.
4. No Liability for the Selection or Services of Third Parties and/or Routes.
(a) Unless services are performed by persons or firms engaged pursuant to express written instructions from 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 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 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, Company shall reasonably cooperate with Customer, which shall be liable for any charges or costs incurred by Company.
(b) Customers of high value shipments are expressly advised that with the exception of NVOCC services, all arrangements for multimodal and surface transportation are made by Cosdel with qualified service providers which may limit their liability for loss, damage or delay and accept no liability for special or consequential damages or diminished value. Customers are accordingly advised to procure adequate property insurance to cover all risk of loss which exceed the service provider's limitations as same may be governed by federal statutes or international conventions. In the event of loss, damage or delay in transit, all claims should be filed by customer with the service provider in care, custody and control of the shipment at time of loss.
5. Quotations Not Binding.
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by Company to 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 handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between Company and 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 Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer's behalf;
(b) In preparing and submitting customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, 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 ensure the correctness of all such information and shall indemnify and hold Company harmless from any and all claims asserted and/or liability or losses suffered by reason of Customer's failure to disclose information or any incorrect or false statement by Customer upon which Company reasonably relied. Customer agrees that Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
(c) Customer shall comply with all applicable laws and government regulations of any country to, from, through or over which its goods may be carried and shall furnish such information to Company as may be necessary to comply with such laws and regulations.
7. Declaring Higher Value to Third Parties.
Third parties to whom the goods are entrusted may limit liability for loss or damage; Company will request excess valuation coverage only upon specific written instructions from 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. Customer agrees that Company has no obligation to consider claims or to facilitate such claims against carriers or warehousemen on behalf of Customer if Customer has not paid Company's invoices. Furthermore, Customer agrees that Company shall have a lien in the amount of any unpaid invoices on any insurance proceeds issuing as a result of loss, delay, or damage to Customer's cargo.
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 Company, 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 Company shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by 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 Company prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (b) above, Company's liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to customs brokerage, such as for truck transportation, warehousing, and domestic air transportation, liability for damage is limited to $.50 per pound or $40 per article, whichever is less; in international air transportation, liability for damage is limited to 19 Special Drawing Rights per kilogram or as may be amended from time to time in any applicable international conventions; for ocean shipments, loss or damage is limited to $500 per package or customary freight unit.
(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.
(f) Company shall not be liable for any loss, delay, or damage to goods caused by acts of God, public authorities, strikes, labor disputes, weather, mechanical failures, civil commotion, acts of terrorism, hazards incident to a state of war, acts or omissions of customs, or defects in the goods being shipped.
10. Advancing Money.
All charges must be paid by Customer in advance unless 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 Company.
11. Indemnification/Hold Harmless.
Customer agrees to indemnify, defend, and hold Company harmless from any claims and/or liability arising from any loss, delay, or damage to goods caused by a carrier or warehouse, or the importation or exportation of Customer's merchandise and/or any conduct of Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney's fees, which 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 Company, it shall give notice in writing to Customer by mail at its address on file with Company.
12. C.O.D. or Cash Collect Shipments.
Company shall use reasonable care regarding written instructions relating to "Cash/Collect" on "Deliver (C.O.D.)" shipments, bank drafts, cashiers and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall have not liability if the bank or consignee refuses to pay for the shipment.
13. Costs of Collection.
In any dispute involving monies owed to Company, Company shall be entitled to all costs of collection, including reasonable attorney's fees and interest at 18% 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, 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 United States; unless otherwise agreed to in writing, Company 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 "record keeping agent" for Customer.
16. Obtaining Binding Rulings, Filing Protests
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.
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; 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.
Customer agrees that Company is entitled to inspect, through physical or other means, any shipment tendered to Company for transport, handling, or storage, including shipments in sealed packaging. Company shall make no claim nor bring suit against Company or any person or entity acting on behalf of Company arising from an inspection.
Customer warrants that it shall not tender to Company any shipment containing explosives, destructive devices, or hazardous materials for transport, handling, or storage. Customer shall hold Company harmless from and shall defend and indemnify Company against any damage, loss, claim or suit arising from any breach of Customer's warranties hereunder.
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 Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, 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 Customer for monies due Company, upon recovery by Company, Customer shall pay the expenses of collection and/or litigation, including reasonable attorney's fees.
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. These Terms and Conditions may be amended from time to time as posted on Company's website at www.cosdel.com and Customer agrees to be bound by the amended Terms and Conditions as posted on the date of each shipment.