TAGGART INTERNATIONAL, LTD. GENERAL TERMS AND CONDITIONS OF SERVICE
(governing all transactions between parties)
These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer.” In the event the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services.
(a) “Company” shall mean Taggart International, Ltd., its subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its principals, agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these Terms and Conditions of Service to all such agents or representatives;
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating common 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, Third Party Logistics Provider or Consultant
The Company acts as the “Agent” of the Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with Government Agencies: as to all other services, Company acts as an Independent Contractor.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within thirty (30) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air transportation, within two (2) years from the date of the loss;
(iii) For claims arising out of the preparation and/or submission of an import entry(s), within seventy- five (75) days from the date of the entry(s);
(iv) For any and all other claims of any other type, within two (2) years from the date of the loss or damage.
4. No Liability For The Selection of Services, Third Party Logistic Providers, Fourth Party Logistic Providers, Service Providers, Carriers and/or Routes.
Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall select Services, Third Party Logistic Providers, Fourth Party Logistic Providers, Service Providers, Carriers and/or Routes at its sole discretion, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services, nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such person or firm 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 any person or firm, or the agent of any person or firm, regardless of whether or not such person or firm is a company related in ownership with Company; all claims in connection with the act of a person or firm shall be brought solely against such person or firm; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company for said cooperation.
5. Quotations Not Binding.
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice and subject to the Company’s Rate Quote Disclaimer. No quotation shall be binding upon the Company unless 1) the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation, and 2) payment arrangement is guaranteed and agreed to by the Customer. Any reasonable signal of acceptance of the quotation (oral, written or otherwise) that leads to an engagement for services shall subject the Customer to these Terms and Conditions of Service.
6. Reliance On Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, BIS, and any other Government Agency(ies) and/or third party (ies), and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customers behalf; (b) In preparing and submitting Customs entries, export declarations, applications, security or security-related filings, documentation (any and all data) data to the United States Government (any and all agencies, bureaus or departments) and/or a third parties, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use the highest standard of care to insure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect or false statement by the Customer upon which the Company relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to transport, import, export or enter the goods.
7. Declaring Higher Value To Third Parties.
Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
9. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its products or services, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose;
(b) Subject to (c) below, Customer agrees that in connection with any and all services performed by the Company, the Company shall only be liable for its grossly negligent acts, which are the sole, direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and the Company shall in no event be liable for the acts or omissions of other parties;
(c) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore; which said request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (b) above, the Company’s liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to Customs business, $50.00 per shipment or transaction; whichever is less, or
(ii) where the claim arises from activities relating to “Customs business,” $50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
(e) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages arising out of the use or inability to use Company’s products or services, even if Company has been put on notice of the possibility of such damages.
10. Advancing Money.
All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold Harmless.
The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney’s fees, including those of in-house counsel, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
12. C.O.D. or Cash Collect Shipments.
Company shall use reasonable care regarding written instructions relating to “Cash/Collect” on “Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall have 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, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees (including those of in-house counsel) and interest at a monthly rate of 2% per month from the date of the invoice, unless a lower amount is agreed to by Company in writing. If Customer breaches the promise to pay Company in a timely fashion, then the resulting damages would be impracticable or extremely difficult to determine, because of the state of the economy and rapidly fluctuating interest rates. Because of the difficulty in determining the damages resulting from the Customer’s failure to pay Company in a timely fashion, the parties agree that, in the event of such a breach, Customer shall pay the sum of two percent per month for all sums due to Company as liquidated damages. In the event, the legal interest rate in the state in which Customer is domiciled is higher, the interest rate in that state shall govern. In the event Customer knew or should have reasonably anticipated filing bankruptcy or files bankruptcy within 180 days of any transaction in which Company is involved, Customer’s debt to Company for services rendered shall survive, and be paid to Company prior to all other creditors; whether secured or unsecured creditor. Should company fail in this regard or be unable to pay or a different arrangement be adjudicated by a Court the members, owners or corporate officers will be held personally liable, and assume the debt of the Customer and render payment immediately without further adjudication on the matter.
14. General Lien and Right To Sell Customer’s Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both; (b) Company shall provide written notice to Customer of its intent to exercise such lien, the 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 irrevocable 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; without posting bond and without liability to Company; 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 otherLaws and Regulations of the United States; unless otherwise agreed to in writing by a Company corporate officer, the 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, etc.
Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
17. Preparation and Issuance of Bills of Lading.
Where Company prepares and/or issues any bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight and number of pieces supplied by Customer or their agent.
18. No Modification or Amendment Unless Written.
These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. Compensation of Company.
The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies handling the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including reasonable attorney fees (including those of in-house counsel).
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. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
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 County of Clay, State of Missouri without giving consideration to principals of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court for the Western District of Missouri and the State Courts of Clay County Missouri;
(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.
Based upon the National Customs Brokers and Forwarders Association of America, Inc. NCBFAA Terms & Conditions of Service (Revised 07/09)