DHL GLOBAL FORWARDING TERMS AND CONDITIONS

Transcription

1 DHL GLOBAL FORWARDING TERMS AND CONDITIONS These service terms and conditions constitute a legally binding agreement between Company and "Customer". In case a DHL Transport Document is issued, the terms and conditions set forth or evidenced in such DHL Transport Document, to the extent they are not consistent with DHL Terms, shall prevail and govern the Services for which such DHL Transport Document was issued. 1. Definitions "Company": means the DHL Global Forwarding operational unit in Latin America providing the service, its subsidiaries, companies of the same economic group, its agents and/or representatives; "Consignee": means the person to whom the Goods are addressed to. "Customer": means the person to whom the Company is providing services, as applicable, as well as its officers, agents and/or representatives, including but not limited to, carriers, importers, exporters, shipping companies, insured parties, warehouse companies, buyers and/or sellers, carriers, insurance and insured companies agents, break-bulk agents, consignees, etc. It is Customer's responsibility to provide notice and copy(ies) of these service terms and conditions to all such agents or representatives; "Documentation": means all information obtained directly or indirectly from Customer, whether in hard copy or electronic format; "Goods": means the shipment to which any business under these terms and conditions shall apply; "Ocean Transport Intermediary " ("OTI"): must include a freight forwarding agent (sea freight forwarder and a non-vessel operating carrier); "Owner": means the owner of the Goods or Transport Unit and any person that has or may have interest on them; "Third Parties" must include but are not limited to the following: "shipping companies, truckers, car operators, lightmen, freight forwarders, OTIs, customs brokers, agents, storage personnel and others that shall receive the Good for transport, shipping, handling and/or delivery and/or storage or similar activities; Services : means freight forwarding, shipping, storage, transport, shipping management and any other service described under this Agreement and/or price quote. DHL Transport Documents : means Airway Bill of Lading, Danmar Bill of Lading and Road Bill of Lading. "Transport Unit": means packaging boxes, pallets, containers, trailers, tanks or any other equipment used or related to transport of goods by air, sea or land. 2. Validity. If any provision of this Agreement is deemed invalid by a competent authority, all valid provisions that may be severed from the invalid one shall remain in full force and effect. In this event, the Parties shall start negotiations to replace the invalid or null provision, which to the maximum extent possible must maintain the same economic, legal and business purposes of the invalid and unenforceable provision. 3. Company as agent. The Company shall act as Customer's agent in order to comply with obligations relative to entry and exit of Goods, to provide post entry services, obtain export licenses, fill in export and safety documents on behalf of Customer and negotiate with Government entities, arrange contracts with transport companies, agents, expeditors, contract warehousing on behalf of or at Customer's account and others according to Customer's instructions and, hence, DHL is only liable for carefully selecting and instructing such suppliers. With regard to all other services, the Company shall act as independent contractor. 4. Non binding quotes. Quotes including prices, fees, customs clearance fees, insurance premiums or other charges undertaken by the Company for the Customer are for information purposes only and are subject to changes without prior notice. No quote shall bind the Company unless the Company agrees to it in writing and is responsible for shipping, handling or transport according to the charge or fee established in the quote, and provided payment conditions have been agree to between Company and Customer. 5. Examination. The Company must carefully examine Service orders. However, it is not responsible for checking the content of transport or shipping containers or even to confirm weights or sizes. In case the Company becomes aware of any discrepancy, it shall clarify such discrepancy as soon as possible for Customer. 6. Declaring a Higher Amount to Third Parties. Third parties to whom the Goods are entrusted may limit their liability for losses and damages. The Company shall only request additional coverage upon specific written instructions from Customer, who must agree to pay any charge resulting from such coverage. In the absence of written instructions or third party refusal to agree to state a higher amount, Page 1 of 6

2 at the Company's discretion, the Goods may be delivered to the third party, subject to its limits of liability, and the Company's liability shall not exceed the maximum limit established in the transport document and/or service terms and conditions. 7. First Loading/Last Unloading. Insofar there are no agreements otherwise, the shipping company or consignee shall be responsible for the first loading to transport conveyance and containers. Carrier must be deemed an assistant to shipping company or consignee. 8. Delivery Dates. Warranties as to delivery dates are usually disclaimed unless previously agree to in writing. In this case, such agreements must at least state the maximum delivery date and the additional charge to be paid by Customer. 9. Unforeseen Intermediary Storage. If Consignee fails to take delivery of shipment at its destination or if shipment is retained in transit due to reasons beyond Company's control, shipment must be place at a storage facility at the Customer's risk and account. The Company must as soon as possible inform Customer of such unforeseen intermediary storage (each time). 10. C.O.D. or Cash Collect Shipments. The Company must use reasonable care with regard to written instructions relative to Cash/Collect on Deliver - C.O.D., bank authorizations, checks, letter(s) of credit and other similar payment documents and/or instructions relative to receipt of amounts, but shall not be held liable if the bank or consignee refuses to pay for shipment. Despite the Company's acceptance of Customer's instructions to receive freight, taxes, charges, fees or other expenses from Consignee or any other person, upon receipt of evidence of such proper request by the Company and without evidence of payment (for any reason) by such Consignee or other person, Customer shall remain liable for such freight, taxes, charges, fees or other expenses. The Company shall not be liable for currency exchange losses. 11. Additional Charges and Reimbursements. The Company shall not be held liable for inaccurate collection of freight, charges, fees, etc, for which it is not responsible. 12. Instructions Relative to Delivery or Release of Goods. Except upon special agreements previously executed in writing by an authorized representative of the Company, or under the terms of a printed document signed by the Company, all instructions relative to delivery and clearance of Goods under specific circumstances (including, but not limited to, against payment or delivery of a particular document) shall be accepted by the Company solely in the capacity of Customer's agent, to the extent the Company has to allocate third parties to comply with such instructions. Despite the Company's acceptance of Customer's instructions to pay Consignee's or any other person's freight, taxes, charges, fees or other expenses, upon receipt of evidence of such proper request by the Company and without evidence of payment (for any reason) by such Consignee or other person, Customer shall remain liable for such freight, taxes, charges, fees or other expenses. 13. No Liability for Selection or Third Party Services and/or Routes. Unless services are provided by individuals or companies allocated according the Customer's specific written instructions, the Company have the right to subcontract services and shall take all reasonable care to select such third party or to chose the means, route and procedures to be followed to handle, ship, clear customs and deliver shipment. The Company's advise that a given individual or company shall provide services relative to the Goods shall not be construed as Company's warranty that such individual or company shall provide such services, nor that the Company shall be liable for any action(s) or omission(s) of referred third party and/or its agents, and the Company shall not be liable for any delay or loss of any kind occurred while such third party or third party agent is in possession of or has control over shipment. All claims related to third party's act must be brought against such third party and/or its agents. The Company shall reasonably cooperate with Customer with regard to any claim and Customer shall be responsible for charges and costs incurred by the Company. 14. Goods Requiring Special Handling or Hazardous Goods. Unless previously agreed to in writing by an authorized representative of the Company, it shall not accept or handle Goods requiring special treatment with regard to shipping, handling or security, whether due to their nature prone to theft or robbery, including but not limited to gold, coins, precious stones, jewelry, valuable objects, antiques, paintings, human remains, live stock, domestic animals, animals, plants. If, however, any Customer delivers such Goods to the Company, or forces the Company to handle or deal with any such Goods, except upon prior agreement, the Company shall have no responsibility for or in relation to the Goods, regardless of the cause. Except according to instructions previously received in writing and accepted in writing by the Company, it Page 2 of 6

3 shall not accept or handle hazardous or dangerous Goods, nor goods susceptible to cause parasites or other plagues at port or ships harness, or even Goods subject to contaminate or affect other. If such Goods were accepted upon special arrangement but, after the fact and at the Company's discretion, such Goods constitute risk to other Goods, properties, life or health, the Company shall, always as soon as reasonably possible, contact Customer to request it to remove or in any other way handle such Goods, but the Company reserves itself the right to do so, in any event, at Customer's expenses. 15. Failure to Take Delivery. If Customer, Consignee or owner of the Goods fails to take delivery at the appointed time and place and where and when the Company is authorized to deliver, the Company shall have the right to store the Goods, or any portion of such Goods, at Customer's, Consignee's or Owner's sole risk, completely ceasing the Company's liability with regard to such Goods, or respective portion of such Goods, in storage in the form mentioned above. The Company's liability, if any, in connection with such storage shall be governed by these conditions. All costs incurred by the Company as a result of failure to take delivery shall be deemed freight due and such costs must be paid by Customer upon request. The Company shall have the right to, at Customer's expenses, dispose of or handle the Goods (by selling them or any other reasonable form considering the circumstances): (i) after at least twenty-eight (28) calendar days counted as of prior written notice to Customer, or (in case Customer can not be located and after reasonable efforts have been taken to contact any of the parties that under reasonable assumption have interests in such Goods), without prior notice, all such Goods kept by the Company for ninety (90) calendar days and that could not be delivered as instructed, and (ii) without prior notice, all Goods that perished, deteriorated or changed, or are about to do so immediately in a way that may cause or is reasonably expected that they shall cause loss or damage. 16. Loss or Damage Notice. Any apparent loss or damage to shipment must be immediately informed in the transport document (HAWB, B/L or road bill of lading) at the time delivery of Goods is accepted. If delivery is incomplete or if there is evidence of damage to the boxes in which the goods are packaged, then the difference or apparent damage must be noted in the POD and Customer must notify the Company within two (2) business days informing the difference or damage. Both Parties, then, shall perform a joint inspection and a third party survey (for insurance purposes) of the products in question. Lack of annotation shall be construed as indication that the deliveries were made under the conditions described in the transport document. Customer must notify DHL in writing of all losses and damages within three (3) days counted as of the date of receipt. Upon identification of the loss or damage, DHL must be granted the opportunity to inspect the shipment within the following periods of time, whichever occurs first: (a) five (5) calendar days after written notice of loss or damage and consignee must not break down shipment until DHL's inspection or (b) expiration of a five (5) days period. 17. Statute of Limitation. Any Customer claim against the Company deriving from any service or the Company's commitment to provide services shall be subject to the statute of limitation set forth in international conventions or specific local regulations. Notwithstanding the above, any Customer claim against the Company must be made in writing and notified to the Company fourteen (14) calendar days from the date Customer becomes aware or reasonably should have become aware of any event or circumstance that would have caused such claim, and any claim not submitted or notified in the form mentioned above shall be deemed waived, unless Customer can provide evidence that it was not possible to comply with such deadline and that the claim was submitted as soon as it was reasonably possible for Customer to do so. 18. Reliance on Information Provided. Customer acknowledges that it must review all documents and statements prepared and/or submitted to Government bodies and/or to third parties, and must immediately notify the Company of any errors, discrepancies, incomplete information or omissions in any statement or other document submitted on behalf of the Customer. To prepare and submit customs declarations, export statements, orders, security requests, documents and/or other data required, the Company relies on the accuracy of all documentation, whether in written or electronic format, and of all information provided by Customer. Customer must use reasonable care to ensure accuracy of all information and must indemnify and hold the Company harmless from any and all claim and/or liability or damage suffered due to Customer's failure to disclose information or of any inaccurate, incomplete or false information provided by the Customer or its agents, representatives or contracted Page 3 of 6

4 parties on which the Company has reasonably relied. Customer agrees that it has the non assignable duty to disclose any and all information required to import, export or register Goods. Advice and information, in any form, is only provided by the Company to Customer. Customer must indemnify Company for all losses and damages suffered as a result of disclosure of such advice and information to third parties. 19. Disclaimers; Limitation of Liability. (a) Except as expressly provided for hereunder, the Company disclaims any warranties, express or implied, with regard to its services; (b) With regard to all services provided by the Company, Customer may obtain additional liability coverage, up to the actual or declared amount of the shipment or operation, requesting such additional coverage and agreeing to make the applicable payment. Such request must be confirmed in writing by the Company prior to the provision of services relative to the covered operation. (c) Absent additional coverage per item (b) above, the Company's liability shall be limited to the following: For shipping services, under no circumstances shall the Company be liable for any loss, damage, mistaken delivery or failure to deliver, in addition to the limitations specified in the Regular Conditions printed at the back of the transport documents (Bill of Lading, Air Way Bill, road bill of lading) or as established under applicable international conventions. Absent such terms or for any other services not included in a transport document, regardless of the fact that no reason can be attributed to the cause for such loss or damage, the Company's liability shall not exceed the following: (i) in case of claims for losses or damages to the Goods: (a) the amount of any loss or damage, or (b) the amount equivalent to two (2) Special Withdrawal Rights (DES) per kilogram of gross weight of any Good lost or damaged, whichever is lower. The Company's liability for losses or damages resulting from failure to deliver or to ensure delivery of Goods within a reasonable period of time, or to comply with dates of departure or arrival agreed to, shall not exceed, under any circumstances, the amount equivalent to two times the amount of charges received by the Company with regard to the applicable agreement and the Company's liability shall be limited to the aggregate amount of ten thousand (10.000) Special Withdrawal Rights (DES) for any calendar year starting on the date of the original error and/or omission. Under no circumstance shall the Company be held liable for indirect or consequential damages, including (but not limited to) a) loss of profits, loss of market or consequences resulting from delay or deviation, regardless of the cause. Upon express written instruction stating the good and corresponding amount received from Customer and accepted by the Company, the Company may accept additional liability above the limits established under this section, provided the Customer agrees to pay additional charges to the Company to accept such increase on liability. Details about the additional charges shall be provided by the Company upon request. If the request results from activities related to customs clearance services, the limit of liability shall be fifty United States dollars (USD 50,00) per process or the amount of the customs clearance services paid to the Company for the process in question, whichever is lower. 20. Insurance. Unless requested in writing and confirmed in writing by Customer and where permitted by applicable laws, the Company shall not be required to contract insurance on behalf of Customer, and in any event, Customer shall have to pay all premiums and costs associated with the insurance contracted upon request. All insurances contracted by the Company are subject to standard policies' caveats and terms established by the insurance companies or underwriters taking the risk. Unless otherwise provided for in writing, the Company shall not have to contract separate insurance for the Goods, but may include them in any open or general policy maintained by the Company. To the extent the Company undertakes to contract insurance, it shall only be acting as Customer's agent and the limits of liability under section 19 of these terms shall not apply to the Company's obligations. In certain Countries, the Company may, upon written request from Customer and subject to local terms and costs, provide Shipment Value Protection. 21. Cash in Advance. All charges must be paid in advance by Customer, unless the Company agrees, in writing, to grant credit to Customer. Credit grant to a Customer in connection with a particular operation shall not be deemed a waiver of this section by the Company. 22. Payment Terms. All prices and charges are net of taxes imposed by any Government or other authority and shall be added such taxes at the appropriate Page 4 of 6

5 amount. If any amount due hereunder is not paid on the respective due date, unless disputed in writing, the defaulting party shall have to pay to the nondefaulting party interest at the rate of one percent (1%) per month plus a two percent (2%) fine, calculated over the amounts adjusted for inflation according to the variation of IGP-M from the due date until the date of actual payment, or the higher interest rate permitted by applicable laws, accumulated on a daily basis, except that exercise of such right shall not affect any other right or remedy relative to the amount due. All payments by Customer to the Company hereunder shall be made in full, without any offsetting, withholding, restriction, condition or deduction of any nature or for any reason. 23. Indemnification. Customer agrees to indemnify, defend and hold the Company harmless with regard to any claims and/or liabilities, penalties and/or attorneys fees deriving from import or export of customer's goods and/or any Customer conduct, including but not limited to, inaccurate data, export or security data provided by the Customer or by its agents or representatives in violation of Federal, State and/or other laws and also agrees to indemnify and hold the Company harmless of any and all liabilities, loss, damage, costs, claims, penalties, fines and/or expenses, including but not limited to attorneys fees that the Company may incur, suffer or be forced to pay due to such claims. In the event of any claim, proceeding or action filed against the Company, it must notify the Customer in writing by mail to the Company's registered address. Customer agrees to indemnify, defend and hold the Company harmless from all claims, costs and demands of any nature and origin, for claims exceeding the Company's limits of liability under this Agreement, regardless of whether such claims, costs and/or demands are resulting from or related to failure to comply with this agreement, negligence or failure to comply with any duty by the Company, its employees, subcontracted parties or agents, and any claims of a general nature that may be filed against the Company. 24. Collection Costs. Under any dispute involving amounts due to the Company, the Company shall have the right to be reimbursed of all collection costs, including reasonable attorneys fees and interest rate of 12% per year, or the higher rate permitted by law, unless a lower amount is agreed to by the Company. 25. General Lien and Right to Sell Customer's Property. Subject to applicable laws, the Company has a general privilege and continued lien over any and all Customer's property under the Company's actual or implied possession or over control of amounts due to the Company in connection with the shipment to which the lien applies, previous shipments and/or both. The Company must provide written notice of its intent to enforce such lien to Customer, informing the exact amount due, as well as any ongoing storage or other charges. Customer shall notify all parties holding interest in such shipment(s) about enforcement of such lien. Unless Customer send cash or letter of credit payable upon presentation, or if the amount due is disputed within thirty (30) calendar days counted as of receipt of notice to enforce the lien, or if a collateral equivalent to one hundred and ten percent (110%) of the total outstanding amount due to the Company guaranteeing payment of the outstanding amounts to the Company is provided, in addition to all storage costs overdue or to become due, the Company shall have the right to sell the shipment(s) in a sale, private or public auction, and the remaining net balance after payment shall be reimbursed to Customer. 26. Offsetting. All payments due by Customer to DHL must be made in full, without any offsetting, withholding, restriction, condition or deduction of any nature or for any reason, unless Customer is required to do so by law. 27. Obtaining Binding Rulings, Filing Claims, etc. Except if requested in writing by Customer and agreed to in writing by the Company, the latter shall not be forced to file any claim prior to or after customs clearance, including but not limited to, to obtain any binding ruling, assist in recovery, file motion(s) and /or protests, etc. 28. Preparation and Issuance of Bills of Lading. When the Company prepares and/or issues bills of lading, the Company shall not have to detail in the bill of lading the number of parts, packaging and/or boxes, etc. Unless specifically requested by Customer or its agent and Customer agrees to pay additional charges for such activity, the Company shall rely on and use the cargo weight informed by Customer. The Company shall not have any responsibility with regard to adjustments referred to hereunder, unless such arrangements are made in writing and, in any event, the Company's liability with regard to performance or organizing completion of such instructions shall not exceed the limits established under section 19 of these terms. 29. No Amendment or Change Except in Writing. These terms and conditions of service shall only be modified, altered or amended by written document Page 5 of 6

6 signed by both Parties. Any attempt to unilaterally modify, alter or amend them shall be null and void. 30. Company's Remuneration. Fees and charges of all shipping companies and other agencies selected by the Company to ship and handle the Goods shall be added to the Company's remuneration and such remuneration shall be net of any brokerage fees, commissions, dividends or other income received by the Company from shipping, insurance and other companies in connection with the shipment. For sea exports, upon request and when possible, the Company shall provide details about the elements of all measurable charges and copies of each document evidencing such charges. In the event of collection or lawsuit filed against Customer for amounts due to the Company, upon receipt of such amounts by the Company, Customer shall have to pay collection and/or legal expenses, including reasonable attorneys fees. In those cases in which the Company is entitled to a commission or other remuneration usually paid to cargo agents, the Company shall have the right to withhold it. 31. Severability. If any provision(s) and/or portion(s) hereunder is deemed invalid and/or unenforceable, then, the remaining provision(s) of this Agreement shall remain in full force and effect. The Company's decision to waive the right to enforce any provision of this instrument, whether by conduct or any other way, shall not be construed as a general or continued waiver of such provision or shall in any way imply a waiver or invalidity or any other provision of this instrument. 32. Force Majeure. The Company shall be exempt from liability for any loss or damage if and to the extent such loss or damage is caused by: (a) strike, lock-out, labor stoppage or shortage and the results that the Company is unable to prevent using reasonable diligence, or (b) any cause or event that the Company is unable to prevent nor any results that the Company is unable to prevent using reasonable diligence. 33. Applicable Law and Competent Venue. These terms and conditions of service and the relationship between the parties shall be construed in accordance with the laws of the Country where the service is provided by the Company, without regard to the conflicts of laws principles. Customer and the Company agree that any lawsuit relative to the services provided by the Company shall only be subject to the venue of such Country. Page 6 of 6