TERMS AND CONDITIONS REGARDING SERVICES RENDERED BY INTERNATIONAL WAREHOUSE SERVICES, INC.

Transcription

1 TERMS AND CONDITIONS REGARDING SERVICES RENDERED BY INTERNATIONAL WAREHOUSE SERVICES, INC. THE FOLLOWING TERMS AND CONDITIONS, UPON YOUR ACCEPTANCE AS PROVIDED HEREIN, SHALL CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND INTERNATIONAL WAREHOUSE SERVICES, INC., A FLORIDA CORPORATION ("IWS"). IT IS IMPERATIVE THAT YOU READ THESE ENTIRE TERMS AND CONDITIONS BEFORE ACCEPTANCE HEREOF. YOU ALSO HAVE THE RIGHT TO CONSULT AN ATTORNEY PRIOR TO ACCEPTANCE. IWS DOES NOT GUARANTEE RESULTS OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICES BEING PERFORMED BY IWS HEREUNDER AND PAYMENT IN FULL IS DUE AND PAYABLE TO IWS AS REQUIRED HEREBY AND YOU AGREE TO PAY THE SAME PURSUANT TO THE TERMS HEREOF UNDER ALL CIRCUMSTANCES. These Terms and Conditions govern your rights, responsibilities and obligations with IWS in connection with your on-line request to hire IWS to perform inspection and other services as required by the office of United States Customs and Border Protection, the United States Department of Agriculture and/or any other governmental agency (for purposes hereof, individually and/or collectively, "U.S. Customs"). In the event of any inconsistency between the terms, conditions and provisions contained in such on-line request and these Terms and Conditions, the terms, conditions and provisions contained in these Terms and Conditions shall govern and control. These Terms and Conditions shall be strictly enforced in all respects. 1. Acceptance. a. You understand, acknowledge and agree that You shall be permitted the use and access to the Services only in strict adherence to these Terms and Conditions. By selecting the "accept" option set forth below, you affirm and agree that you have read these Terms and Conditions, understand and accept these Terms and Conditions and agree to be bound and adhere to these Terms and Conditions in all respects. You represent, warrant and covenant that You are and shall continue to (i) be authorized by law and otherwise to "accept" these Terms and Conditions, (ii) have the power to bind Customer to these Terms and Conditions, (iii) be properly licensed pursuant to all applicable laws, rules and regulations in effect with respect to these Terms and Conditions to enter into the transactions contemplated hereby and all of such licenses are current and in full force and effect, and (iv) comply with all applicable laws, rules and regulations governing in all respects these Terms and Conditions. b. These Terms and Conditions are intended and shall be governed by the Electronic Signatures in Global and National Commerce Act. You manifest your acceptance of these Terms and Conditions by any act demonstrating your assent, including, without limitation, clicking any button containing the words "I accept" or similar syntax whether you have actually read these Terms or Condition or not as you will be deemed to have read them and shall be

2 charged with knowledge of all of the provisions hereof. IWS strongly recommends that You print these Terms and Conditions for your business and personal records. c. Upon acceptance, you have hired IWS to perform the Services and are legally and contractually bound to perform your obligations hereunder and as required by all applicable laws, rules and regulations governing in any and all respects the Services. 2. Definitions. a. "Customer" or "You" - Shall mean the person for whom IWS is rendering the Services as well as your agents and representatives, including, without limitation, shippers, importers, exporters, carriers, customs brokers, brokers, secured parties, warehousemen, buyers, sellers, shipper's agents, insurers, underwriters, break-bulk agents and consignees (if applicable, as each of such parties are defined and/or interpreted by Title 19 of the Code of Federal Regulations of the United States [the "CFR"]). It is your obligation, duty and responsibility to provide copies of these Terms and Conditions to all of such agents and representatives so that such agents and representative have notice hereof and of their respective rights, responsibilities and obligations hereunder. Any failure to provide such copies and notice shall be deemed a material default by You hereunder. b. IWS shall have the meaning set forth above and shall include the subsidiaries, related companies, agents and/or representatives of IWS and/or the IWS Parties (as defined herein). c. "Services" - Shall mean the aggregate of services to be performed by IWS hereunder in connection with your on-line request to hire IWS to perform inspection and other services as required by U.S. Customs. d. "Terms and Conditions" - These Terms and Conditions as may be modified, amended, supplemented and otherwise revised by IWS from time to time. IWS hereby reserves the right to so modify, amend, supplement or otherwise revise these Terms and Conditions. IWS shall provide notice of any such modification, amendment, supplement or revision to You and You shall then be obligated to forward any such notice to your agents and representatives as set forth in the definition of "You" above. e. Third Parties shall include, but shall not be limited to, the following: carriers, forwarders, agents, warehousepersons and others to which the shipment and goods are entrusted for transportation, cartage, handling, clearance, delivery, storage and/or otherwise. 3. Disclaimers; Limitation of Liability. a. IWS makes no express or implied warranties in connection with the Services and otherwise with respect to its performance hereunder and, to the fullest extent permitted by applicable law, specifically waives all implied warranties, unless such warranties are specifically set forth in these Terms and Conditions. 2

3 b. Customer agrees that in connection with the Services and otherwise with respect to the performance by IWS hereunder, IWS shall only be liable for its gross negligent acts that are the direct and proximate cause of any injury to Customer or Customer s shipment and/or goods. In no event and under no circumstance shall IWS total liability arising from or related to any of the Services or otherwise with respect to IWS' performance hereunder exceed the aggregate amount paid by Customer to IWS for the Services. c. Other than as permitted pursuant to, and as limited by, these Terms and Conditions, and to the fullest extent permitted by applicable law, rules and regulations governing these Term and Conditions and the transactions contemplated hereby, Customer hereby waives (x) all claims, actions and/or demands and (y) any right now or in the future to assert any claim, action and/or demand against IWS and/or the IWS Parties with respect to in any manner the obligations associated with the Services and otherwise in connection with the performance by IWS hereunder. Furthermore, in connection therewith, Customer hereby agrees to release each of IWS and the IWS Parties of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, warranties, representations, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, demands, liabilities, costs and expenses whatsoever, in law or in equity, whether matured or contingent, whether liquidated or unliquidated, which Customer or any other party ever had, now has, or shall or may have in the future, or which any personal representative, successor, heir and/or assign of Customer hereafter can, shall or may have against IWS or any IWS Party with respect to the matters waived in the immediately preceding sentence. The waiver and release set forth herein includes, but is not limited to, any and all known, unknown, discoverable, latent and patent claims, actions and causes of action for, upon or by reason of any and all claims which may have been made by Customer or any other party, or could be made. This waiver and release of claims and all other matters set forth in this Section 3 shall survive the termination or expiration of these Terms and Conditions. 4. Indemnity/Hold Harmless. a. Customer agrees to indemnify, defend and hold IWS and all of IWS' officers, directors, shareholders, employees, agents, representative and attorneys (collectively, the "IWS Parties" and individually, an "IWS Party") from and against any and all potential and actual claims, liabilities, losses, demands, causes of actions, suits, proceedings, judgments, settlements, penalties, interest, costs and expenses (including, without limitation, costs and expenses of attorneys through all appeals) (in each case and instance an "Indemnified Event") arising from or in any way related to the performance of the Services by IWS hereunder and otherwise in connection with the importation, exportation, handling, transportation, clearance, delivery and/or storage of Customer s shipment and/or goods, any breach by Customer of its obligations hereunder and any conduct of Customer which violates in any respect Federal, State and/or other laws, rules and regulations governing in any respect the transactions and other provisions described in these Terms and Conditions, provided, however, the foregoing obligation to indemnify and hold harmless IWS and the IWS Parties shall not apply in the event of a final determination by a court of competent jurisdiction that (i) IWS was direct and proximate cause 3

4 of the matter being indemnified for hereunder and (ii) the actions of IWS were actions that constituted gross negligent acts. b. In the event that an Indemnified Event shall exist in the sole opinion of IWS, IWS will give notice in writing to Customer as required hereby and any other form of notice as IWS shall elect at Customer's address and other contact information as listed in IWS s files. c. In the event that an Indemnified Event shall exist in the sole opinion of IWS, You shall immediately take over and defend the Indemnified Event with counsel satisfactory in all respects to IWS. No settlement of any Indemnified Event shall be made, or shall be enforceable against IWS or any IWS Party, without IWS and the affected IWS Party consenting thereto. d. The indemnification and hold harmless obligations and all other matters set forth in this Section 4 shall survive the termination or expiration of these Terms and Conditions. e. The terms and provisions governing indemnity in this Section 4 shall also govern any and all other indemnity terms and provisions set forth elsewhere in these Terms and Conditions. 5. Obligations With Respect to Third Parties. a. Any insight, advice or suggestion by IWS that Customer select a specific Third Party shall not under any circumstance or condition mean that (i) IWS warrants that such Third Party will render services in a particular manner and pursuant to a particular standard, (ii) such a suggestion constitutes a warranty of any sort, either express or implied, or (iii) IWS assumes any responsibility or liability for any act or omission of such Third Party. b. Any and all claims in connection with any act or omission by a Third Party or agent thereof, including, without limitation, any claims in connection with the means, route and procedure to be followed in the handling, transportation, clearance, delivery and/or storage of the shipment and/or goods that are the subject matter of these Terms and Conditions shall be brought solely and exclusively against such Third Party and/or its agents. c. Upon request of Customer, IWS agrees to reasonably cooperate with Customer in relation to any claim against a Third Party and/or its agents, provided, that Customer shall be responsible for any and all costs and expenses incurred and/or to be incurred by IWS and/or the IWS Parties in connection with any such cooperation, including, without limitation, the costs and expenses of counsel selected by IWS in the event that IWS believes that counsel representing the interests of IWS and/or the IWS Parties is necessary in connection therewith. d. IN NO EVENT AND UNDER NO CIRCUMSTANCE SHALL IWS BE LIABLE FOR THE ACTS OF THIRD PARTIES, EVEN IF IWS IS MADE AWARE OF THE POSSIBILITY OF ANY SUCH ACTUAL OR POTENTIAL LIABILITY OF THIRD PARTIES IN ADVANCE. 6. Claims Procedure. Unless subject to a specific statute or international convention, all claims against IWS permitted under and as limited by these Terms and Conditions must be 4

5 produced in writing and must be actually received by IWS within sixty (60) days of the occurrence of the underlying event upon which the claim(s) is/are based. Failure to comply with this requirement will be considered a failure to give timely notice, and shall be a complete defense to any suit or action commenced by Customer. 7. Payment of Fees for the Services and IWS s Costs and Expenses. a. Payment for the Services performed hereunder by IWS shall be due and payable upon receipt by Customer of an invoice therefor (the "Invoice"). The Invoice will reflect payment of IWS's fees for the Services rendered hereunder and all costs and expenses of IWS to be paid by Customer in connection with the Services as required hereby. Payment shall be made directly to IWS as strictly required by the Invoice. BE ADVISED THAT YOU ARE OBLIGATED BY LAW, INCLUDING, WITHOUT LIMITATION, TITLE 19, CFR, SECTIONS 151.6, AND OTHER SECTIONS OF FEDERAL LAW, TO PAY IWS FOR THE SERVICES AND OTHERWISE AS SET FORTH IN THESE TERMS AND CONDITIONS. b. In the event that payment is not made by Customer as strictly required by the Invoice, in addition to IWS's other rights and remedies set forth herein and otherwise as permitted by applicable law, IWS shall charge interest on such unpaid sums at one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is less. c. In the event that U.S. Customs or any other governmental agency, whether state or federal, causes or requests that a hold search, detention or seizure of any shipment and/or goods is appropriate or required, Customer agrees to reimburse IWS for any and all costs and fees associated with any such hold, detention or seizure, including, but not limited to, statutory fees for the retention and/or storage of Customer s shipment and/or goods in IWS s warehouse or holding facility. d. In the event of any referral for collection or action against Customer for non-payment of an Invoice or any other monies due IWS hereunder, Customer shall pay all costs and expenses of collection and/or litigation, including attorneys' fees and costs through all appeals. 8. Customer Responsible for Inspect Request Form and Information Furnished. a. Customer understands, acknowledges and agrees that it is solely responsibility to timely and properly fill out all forms (including, without limitation, "inspect and request" forms) required and/or necessary with respect to the Services or any matter related thereto as provided to Customer by IWS and/or any governmental agency or authority, including, without limitation, U.S. Customs (all of such forms are referred to herein, collectively, as the "Forms"). Customer's failure to properly and accurately complete the Forms shall be deemed a material breach of Customer's obligations under these Terms and Conditions and Customer shall be liable for, and indemnify IWS and the IWS Parties from and against, all costs, fees and expenses incurred by IWS or any IWS Party as a result of such material breach by Customer hereunder. Customer hereby represents, warrants and covenants that all of the information provided in the Forms is and shall continue to be true, accurate and correct in all respects. In the event that the information contained in the Forms at any time and from time to time becomes untrue, inaccurate 5

6 or incorrect in any material respect, in addition to any and all other rights and remedies afforded to IWS with respect to such a material breach of these Term and Conditions as set forth herein, You shall be required and obligated to immediately notify IWS of the same so that such information is at all times current. b. Customer hereby understands, acknowledges and agrees that it is solely responsible to review all documents and declarations prepared and/or filed with U.S. Customs, and any other governmental agency or authority or any other third party, including, without limitation, Third Parties. Customer represents and warrants that it will immediately advise IWS of any errors, discrepancies, incorrect statements or omissions on any such document, declaration or Form filed by or on Customer's behalf. Further, Customer agrees that it has an affirmative, non-delegable duty to disclose any and all information required to import, export or enter Customer's shipment and goods. 9. Customer s Duty to Inform IWS of Hazardous Materials. In the event that Customer utilizes the Services to handle, transport, clear, deliver and/or store hazardous materials, Customer must inform and give notice to IWS, reasonably in advance, that the contents of the shipment and goods that are the subject matter of these Terms and Conditions are deemed hazardous materials. Failure to inform IWS timely and properly shall be a material breach of these Terms and Conditions and Customer shall be liable for, and indemnify IWS and the IWS Parties from and against, all costs, fees and expenses incurred by IWS or any IWS Party as a result of such material breach by Customer hereunder. For purposes of these Terms and Conditions the term "hazardous materials" shall be defined in the same manner as defined in all applicable environmental laws, rules and regulations. 10. Record Maintenance. a. Customer acknowledges that it has the exclusive duty and is solely liable for maintaining all records required under all applicable laws, rules and regulations governing the transactions contemplated by these Terms and Conditions, including, without limitation, Sections 508 and 509 of the Tariff Act, as amended (19 USC 1508 and 1509). b. Customer understands, acknowledges and agrees that IWS shall only keep such records as is required to be maintained by applicable law. IWS will not act as a record keeper or recordkeeping agent for Customer at any time or for any purpose whatsoever. 11. Rulings; Protests. It is Customer s duty, and not IWS s duty or responsibility under any circumstance whatsoever, to undertake timely any pre-or post release action in connection with the shipment and/or goods as required by U.S. Customs, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petitions and/or protests. 12. Default. In the event that Customer breaches in any respect its obligations under these Terms and Conditions, Customer will be immediately deemed in default hereunder. In the event that Customer is in default hereunder, IWS shall be entitled to enforce all of its rights and remedies as set forth in these Terms and Conditions as well as all of its rights and remedies permitted by applicable law and in equity. These rights include remedies afforded IWS under 6

7 Federal law, including Title 19 of the CFR governing "Customs Duties" and other Federal laws governing the rights and responsibilities of U.S. Customs brokers. In addition to and in no way in limitation of the foregoing, IWS reserves the right in all respects to cease offering the Services to You in connection with future transactions. Moreover, Customer shall be liable for any and all costs and expenses incurred by IWS with respect to any default by Customer hereunder, including, without limitation, all costs and expenses of attorneys whether or not litigation is commenced and in the event of litigation, through all appeals. 13. General Lien and Right to Sell Customer's Property. IWS shall have a general and continuing lien on any and all property of Customer (including, without limitation, all shipments and goods) coming into IWS s actual or constructive possession or control for monies owed to IWS under these Terms and Conditions and otherwise with respect to any breach by Customer of its obligations hereunder. IWS shall have the right, but not the obligation, to enforce and realize upon its lien rights in IWS s sole and exclusive discretion in the event of any breach of Customer's obligations hereunder. Accordingly, IWS shall be afforded all rights at law and in equity, including, without limitation, all rights under the Uniform Commercial Code as in effect in the State of Florida and all applicable similar Federals laws, rules and regulations and shall be deemed a secured party in connection with such lien rights. 14. Abandonment of Shipments/Goods. Customer shall have the sole obligation upon completion of the Services to retrieve the shipment and/or goods that are the subject of the Services in accordance with instructions provided to Customer by IWS. In the event that such shipment and/or goods are not so retrieved by Customer, such shipment and/or goods shall be deemed abandoned by Customer, Customer shall no longer have any rights and/or claims to the shipment and/or goods and such shipment and/or goods shall become the property of IWS free and clear of any lien, claim or right of Customer thereto. 15. Severability. In the event that any section and/or portion hereof is found to be invalid and/or unenforceable for any reason, then such section and/or portion shall be severable from these Terms and Conditions and the remainder of these Terms and Conditions shall remain in full force and effect. 16. Force Majeure. IWS and Customer shall be excused from performance hereunder for a reasonable period of time where such inability to perform is as a result of any act of God or reasonably unforeseeable event that is in all respects beyond the control of such party (each a Force Majeure Event ) if the party asserting such a Force Majeure Event can prove that, given the circumstances, reasonable steps were taken to minimize delay or damages and that the other party was timely notified of the occurrence or likelihood thereof. Such excuse from performance shall continue only as long as is reasonably required given the circumstances surrounding the Force Majeure Event. Notwithstanding anything contained herein to the contrary, under no circumstances shall Customer be excused at any time regardless of the occurrence of a Force Majeure Event from the timely payment of all sums due IWS under these Terms and Conditions and otherwise. 17. Governing Law; Venue. Customer and IWS agree that the laws of the State of Florida and United States Federal Law in the 11 th Circuit of the United States shall govern all disputes, 7

8 claims and issues arising from or relating to these Terms and Conditions and/or the Services. The parties agree that the sole and exclusive venue for all such disputes, claims and issues shall exist in the State Courts of Broward County, Florida or, where Federal jurisdiction is required or deemed appropriate by IWS, the Southern District of Florida. 18. Amendment; Waiver. Other than as set forth herein, these Terms and Conditions shall not be amended, modified, supplemented or otherwise changed in any manner without the prior written consent of IWS and You. The waiver by either party of any breach or failure to enforce any of these Terms and Conditions at any time shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance with every provision of these Terms and Conditions. 19. No Reliance; Successors and/or Assigns/Entire Agreement. Customer understands, acknowledges and agrees that Customer is entering into these Terms and Conditions without relying on any promises, statements, estimates, representations, warranties, conditions, inducements, results or guaranties, express, implied, oral or written, not specifically set forth in these Terms and Conditions. These Terms and Conditions, the on-line request relating hereto and any and all Invoices in connection herewith contain the entire agreement of the parties hereto and shall bind the parties and their respective successors and/or assigns. Customer may not assign its rights hereunder without the prior written consent of IWS, and no such assignment shall relieve Customer of its liabilities, responsibilities and/or obligations set forth hereunder 20. Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if (a) delivered in person, (b) transmitted by telecopy (with confirmation of receipt), (c) mailed by certified or registered mail (return receipt requested), or (d) delivered by an express courier (with confirmation) to the parties as follows: (i) if to You, at the address and other contact information as listed in IWS s files and (ii) if to IWS, at Post Office Box 21031, Fort Lauderdale, Florida 33335, Attention: Ms. Patricia Seiler, Finance Manager, Facsimile Number (954) Waiver of Jury Trial. The parties hereto hereby agree to waive in all respects the right to a trial by jury in connection with, whether directly or indirectly, any matter or thing related in any respect to these Terms and Conditions. 8