All shipments to or from the Customer, which term shall include the exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments, will be handled with reasonable dispatch by FAK Distribution, LLC (hereinafter called the “Company”) subject to the following terms and conditions. In tendering a shipment to Company, Customer agrees that these terms and conditions, as amended from time to time by Company at its discretion, constitute a binding contract.
1. Services by Third Parties. Unless the Company actually carries, stores or otherwise physically handles the shipment and the loss, damage, expense or delay occurs during such activity, the Company assumes no liability as a carrier and is not to be held responsible for any loss, damage, expense or delay to the goods to be forwarded or imported except as provided in paragraph 12 and subject to the limitations of paragraph 10 below, but undertakes only to use reasonable care in the selection of carriers, truckmen, lightermen, forwarders, custom brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling and/or delivery and/or storage or otherwise. With respect to Company’s authorized brokerage operations engaging U.S. domiciled motor carriers licensed and operating under U.S. law on behalf of Customer, “reasonable care” will mean that Company has made reasonable efforts to place Customer’s shipments with motor carriers: (i) that are authorized to perform the services required by Customer; (ii) that do not hold an “unsatisfactory” safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. When the Company carries, stores or otherwise physically handles the shipment, it does so subject to the limitation of liability set forth in paragraph 10 below.
2. Liability Limitations of Third Parties. The Company is authorized to, at its discretion and subject to the standards sets forth herein, select and engage carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen and others, as required, to transport, store, deal with and deliver the goods, all of whom shall be considered as the agents of the Customer, and the goods may be entrusted to such agents subject to all conditions as to limitation or liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts or tariffs issued by such carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen and others. The Company shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by the Company to forward, enter and clear, transport or render other services with respect to such goods.
3. Choosing Routes or Agents. Unless express instructions in writing are received from the Customer, the Company has complete freedom in choosing the means, route and procedure to be followed in the handling, transportation and delivery of the goods. Advice by the Company to the Customer 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.
4. 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 shall not under any circumstances be binding upon the Company unless the Company in writing specifically undertakes the handling or transportation of the shipment at a specific rate.
5. Duty to Furnish Information. (a) On an import at a reasonable time prior to entering of the goods for U.S. customs, the Customer shall furnish to the Company invoices in proper form and other documents necessary or useful in the preparation of the U.S. Customs entry and, also, such further information as may be sufficient to establish, among other things, the dutiable value, the classification, the country of origin, the genuineness of the merchandise and any mark or symbol associated with it, the Customer’s right to import and/or distribute the merchandise, and the merchandise’s admissibility, pursuant to U.S. law or regulation. If the Customer fails in a timely manner to furnish such information or documents, in whole or in part, as may be required to complete U.S. Customs entry, or if the information or documents furnished is inaccurate or incomplete, the Company shall be obligated only to use its best judgment in connection with the shipment, including taking no further action on the shipment, without incurring any liability. Where a bond is required by U.S. Customs to be given for the production of any document or the performance of any act the Customer shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by the Company as principal, it being understood that the Company entered into such undertaking at the instance and on behalf of the Customer, and the Customer shall indemnify and hold the Company harmless for the consequences of any breach of the terms of the bond. (b) On an export at a reasonable time prior to the exportation of the shipment the Customer shall furnish to the Company the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods. (c) On an export or import the Company shall not in any way be responsible or liable for increased duty, penalty, fine or expense unless caused by the negligence or other fault of the Company, in which event its liability to the Customer shall be governed by the provisions of paragraph 10. The Customer shall be bound by and warrant the accuracy of all invoices, documents and information furnished to the Company by the Customer or its agent for export, entry or other purposes and the Customer agrees to indemnify and hold harmless the Company against any increased duty, penalty, fine or expense including attorneys’ fees, resulting from any inaccuracy or omission or any failure to make timely presentation, even if not due to any negligence of the Customer.
6. Duty of Provide Accurate Information. Customer shall provide accurate and complete information about any shipment for which Company may arrange transport. The submission of incomplete or inaccurate information related to any shipment, including descriptions, quantities, classifications, weights, purchase prices, discounts, commissions, changed selling prices at time of exportation, assists, country of origin, etc. may make Customer or Company liable to severe governmental penalties or sanctions. In the event the information provided to Company, or which accompanied the shipment, does not accurately reflect the entire transaction, it is essential that Customer immediately notify Company. Failure to do so will be considered a breach of these terms and conditions.
7. Recordkeeping. Customer acknowledges that it has the sole responsibility for maintaining records required of it by law or for use in its business and Company has no obligations related thereto. Company shall only be required to keep those records required of it by applicable law or regulation, including 49 C.F.R. Part 371. Except to the extent repugnant to law or regulation, Customer waives its rights to such records; such records are deemed confidential and may constitute trade secrets and Company shall have no liability to Customer if Company is determined by a competent authority not to have complied with relevant recordkeeping laws or regulations.
8. Declaring Higher Valuation. Insomuch as truckers, carriers, warehousemen and others to whom the goods are entrusted usually limit their liability for loss or damage unless a higher value is declared and a charge based on such higher value is agreed to by said truckers, etc., the Company must receive specific written instructions from the Customer to pay such higher charge based on valuation and the truckers, etc., must accept such higher declared value, otherwise the valuation placed by the Customer on the goods shall be considered solely for export or customs purposes and the goods will be delivered to the truckers, etc., subject to the limitation of liability set forth herein in paragraph 10 below with respect to any claim against the Company and subject to the provisions of paragraph 2 above.
9. Insurance. The Company will make reasonable efforts to arrange marine, fire, theft and other insurance upon the goods only after specific written instructions have been received by the Company in sufficient time prior to shipment from point of origin; and the Customer at the same time states specifically the kind and amount of insurance it requires. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy and instructs the Company to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by the Company. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies or other underwriters. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to the Company by the Customer, or that the shipment was insured under a policy in the name of the Company. Insurance premiums and the charge of the Company for arranging the same shall be at the Customer’s expense. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by any insurance, unless the Company receives written instructions from the Customer. Unless specifically agreed in writing, the Company assumes no responsibility to arrange insurance on any export or import shipment which it does not handle.
10. Limitation of $50 per shipment. The Customer agrees that the Company shall in no event be liable for any loss, damage, expense or delay to the goods resulting from the negligence or other fault of the Company for any amount in excess of $50.00 per shipment (or the invoice value, if less) and any partial loss or damage for which the Company may be liable shall be adjusted pro rata on the basis of such valuation. The Customer has the option of paying a special compensation to increase the liability of the Company in excess of $50 per shipment in case of any loss, damage, expense or delay from causes which would make the Company liable, but such option can be exercised only by specific written agreement made with the Company prior to shipment which agreement shall indicate the limit of the Company’s liability and special compensation to Company for the added liability by it to be assumed.
11. Presenting Claims. Unless otherwise required by applicable law, in no event shall the Company be liable for any act, omission or default by it in connection with the transportation of a shipment, unless a claim therefor shall be presented to it at its office within twenty (20) days from the date of initial transport of the goods in a written statement of which sworn proof of claim shall be attached. No suit to recover for any claim or demand hereunder shall in any event be maintained against the Company unless instituted within six (6) months after presentation of said claim, as above provided. For any claims received by Company for which Company has no liability hereunder, Company’s sole duty shall be to transmit the claim to the responsible carrier, and thereafter provide reasonable assistance to Customer in pursuing such claim against such carrier. No agent or employee of the Company shall have authority to alter or waive any of the provisions of this clause.
12. Liability of Company. It is agree that any claim or demand for loss, damage, expense or delay shall be only against the carriers, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen or others in whose actual custody or control the goods may be at the time of such loss, damage, expense or delay, and that the Company shall not be liable or responsible for any claim or demand from any cause whatsoever, unless in each case the goods were in actual custody or control of the Company and the damages alleged to have been suffered to be proven to be caused by the negligence or other fault of the Company, its officers or employees, in which event the limitation of liability set forth in paragraph 10 herein shall apply. The Company shall not in any circumstances be liable for any special or consequential damages, including but not limited to loss of profit, regardless of whether the Company had notice of the possibility of such damages. Company shall not be liable for any loss, damage, non-delivery or delay caused by the act, default or omission of Customer or the consignee, the nature of the Shipment or any defect, characteristic, or inherent vice thereof, any act of God, perils of the air, public enemies, public authorities acting with actual or apparent authority of law, acts or omissions of Customs or quarantine officials, riots, strikes, civil commotions, hazards incident to a state of war, terrorism, weather conditions, delay of aircraft or other vehicles used in providing transportation services or acts or omissions of any carrier or any other entity or person to whom a shipment is tendered by Company for transportation beyond that provided for and agreed to by Company, regardless of whether Customer requested or had knowledge of such third party delivery arrangement.
13. Advancing Money. The Company shall not be obliged to incur any expense, guarantee payment or advance any money in connection with the importing, forwarding, transporting, insuring, storing or coopering of the goods, unless the same is previously provided to the Company by the Customer on demand. The Company shall be under no obligation to advance freight charges, customs duties or taxes on any shipment, nor shall any advance by the Company be construed as a waiver of the provisions hereof.
14. Late Payments. FAK reserves the right to assess a late fee and interest on any past due invoices. Without an agreement in place to the contrary, FAK’s standard business terms are Net 30. Thereafter, interest will be charged daily, and continue to accrue until the account balance becomes current. The annual percentage rate will be four percent (4%) per year on all account balances past terms.
15. Shipment Cancellations. Any shipments cancelled within 24 hours of a booking request may be subject to cancellation fees. While FAK will make every effort to mitigate cancellation fees with third parties, should any third party assess such fees in the normal course of business, FAK will pass those fees on to the client.
16. Indemnification for Freight, Duties. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against the Company for freight, duties, taxes, penalties, liquidated damages or other money due arising from a shipment of goods of the Customer, the Customer agrees to indemnify and hold harmless the Company for any amount the Company may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including attorneys’ fees, incurred by the Company in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to the Company to pay all charges or other money due promptly on demand.
17. Indemnification. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY FROM AND AGAINST, AND SHALL PAY AND REIMBURSE COMPANY FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THESE TERMS AND CONDITIONS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) CUSTOMER’S FAILURE TO PROVIDE, OR COMPANY’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF COMPANY. THE SERVICES CONTEMPLATED HEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. COMPANY IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTIFY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE QUALIFIED MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
18. Sale of Perishable Goods. Perishable goods or live animals to be exported or which are cleared through customs concerning for which no instructions for disposition are furnished by the Customer may be sold or otherwise disposed of without any notice to the Customer, owner or consignee of the goods, and payment or lender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. In the event that any such shipment is refused or remains unclaimed at destination or any transshipping point in the course of transit or is returned for any reason, the Customer shall nevertheless pay the Company for all charges and expenses in connection therewith. Nothing herein contained shall obligate the Company to forward or enter or clear the goods or arrange for their disposal.
19. Storage. If the consignee refuses any shipment or if Company is unable to arrange delivery of any or all of the shipment because of fault or mistake of Customer or the consignee, or if Customer advises and instructs Company to stop movement of the cargo and to hold it in transit, Company’s liability thereafter immediately shall be that of a warehouseman. The procedures that Company agrees to and shall take as a warehouseman involve the use of ordinary care to keep the shipment in a reasonably safe or suitable place. In no event will Company’s liability for loss or damage to any shipment in storage be greater than as stated in these terms and conditions at paragraph 10. Company shall (a) attempt to give Customer notice as soon as possible if the foregoing occurs, (b) place the cargo in storage, if available, unless Company receives contrary disposition instructions from Customer within twenty-four (24) hours, and (c) if disposition instructions are not given by Customer within thirty (30) days of Company’s initial notification to Customer, Company may offer the shipment for public or private sale, return the shipment to Customer at Customer’s sole risk and expense, or place the shipment into a public warehouse to the account of Customer and in such case Company shall have no further liability or obligation with respect to the shipment. Customer shall be responsible for storage costs and reasonable costs Company incurs in acting as a warehouseman. If Customer gives Company timely disposition instructions, Company shall use any commercially reasonable steps to abide with such instructions in accordance with this contract. Customer shall pay Company’s costs and any additional transportation costs that Company incurs in doing so. CUSTOMER SHALL REMAIN JOINTLY AND SEVERALLY LIABLE TO COMPANY FOR ANY DEFICIENCY SHOULD THE PROCEEDS OF ANY SALE BE INSUFFICIENT TO OFFSET ALL CHARGES DUE COMPANY WITH RESPECT TO ANY SHIPMENT. EXCESS PROCEEDS FROM A SALE WILL BE USED TO SATISFY ANY OUTSTANDING LIEN OR OBLIGATION DUE COMPANY FIRST, WITH ANY BALANCE THEREAFTER PAID TO CUSTOMER. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD COMPANY HARMLESS AGAINST ALL LOSS AND EXPENSE, INCLUDING ATTORNEY’S FEES, OF WHATEVER NATURE BROUGHT BY ANY OTHER PERSON HAVING AN INTEREST IN THE GOODS SOLD UNDER THIS PROVISION.
20. C.O.D. Shipments. Goods received with Customer’s or other person’s instructions to “Collect On Delivery” (C.O.D.) by drafts or otherwise, or to collect on any specified terms by time drafts or otherwise, are accepted by the Company only upon the express understanding that it will exercise reasonable care in the selection of a bank, correspondent, carrier or agent to whom it will send item for collection, and the Company will not be responsible for any act, omission, default, suspension, insolvency or want of care, negligence, or fault of such bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection.
21. General Lien on Any Property. The Company shall have a continuing, general lien on any and all property (and documents relating thereto) of the Customer, in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by the Company in connection with any shipments of the Customer and may refuse to surrender possession of any and all shipments until all charges are paid by Customer. If such claim remains unsatisfied for thirty (30) days after demand for its payment is made, the Company may sell at public auction or private sale, upon ten (10) days written notice Registered mail (R.R.R.) to the Customer, the goods, wares and/or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amount due to the Company. Any surplus from such sale shall be transmitted to the Customer, and the Customer shall be liable for any deficiency in the sale.
22. 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 selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends of other revenue received by the Company from carriers, insurers or others in connection with the shipment. 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 attorney fee.
23. Picking Up Shipments of Samples. The Company shall not itself be obligated to pick up a shipment from a carrier of a sample from U.S. Customs. Should the Company render such a service for and on behalf of the Customer, the Company shall not be responsible for loss or damage to the shipment unless it is in the actual custody and control of the Company and its employees and the loss or damage is caused by the negligence or other fault of the Company or its employees, in which event the limitation of liability set forth in paragraph 10 shall herein apply.
24. Hazardous Materials. Shipments containing hazardous materials will only be handled after express written consent is given by Company. Customer remains responsible for compliance with all packing, packaging and labeling requirements imposed by law.
25. Customer Compliance with Law. It is the responsibility of the Customer to know and comply with the U.S. export control laws, marking requirements of the U.S. Customs and Border Protection, the regulations of the U.S. Food and Drug Administration, and all other requirements, including any and all regulations of Federal, State and/or local agencies pertaining to the merchandise. The Company shall not be responsible for action taken (including damage resulting from inspections) or fines or penalties assessed by any governmental agency against the shipment whether or not due to the failure of the Customer to comply with the law or the requirements or regulations of any governmental agency or with a notification issued to the Customer by any such agency.
26. Loss, Damage or Expense Due To Delay. Unless the services to be performed by the Company on behalf of the Customer are delayed by reason of the negligence or other fault of the Company while a shipment is in its actual custody or control, the Company shall not be responsible for any loss, damage or expense incurred by the Customer because of such delay. In the event the Company is a fault, as aforesaid, its liability is limited in accordance with the provisions of paragraph 10 above.
27. Construction of Terms and Venue. The foregoing terms and conditions shall be construed according to the laws of the State of Texas. Unless otherwise consented to in writing by the Company, no legal proceeding against the Company may be instituted by the Customer its assigns, or subrogee except in the state or federal courts serving Webb County, Texas.
28. No Liability for Mexico Shipments. Notwithstanding anything in these terms and conditions or elsewhere to the contrary, for purposes of Company’s responsibility for any cargo lost or damaged, Company and Customer agree that all shipments either originating in or ultimately destined to Mexico shall be deemed as either originating or terminating at the border point in the United States, despite the issuance of a through bill of lading or other document. Company shall have no liability for cargo loss, damage or delay where such loss, damage or delay occurs in Mexico. As permitted by 49 U.S.C. §14101(b)(1), Company and Customer expressly waive all rights and remedies they may have as to each other under 49 U.S.C. § 14706 for all cargo loss, delay, damage, or destruction claims arising in Mexico, and Customer agrees that Company shall not be liable for any and all such claims. In the event that the cargo loss or damage is first discovered after delivery of the freight in Mexico, whether the load originated in Mexico or was ultimately destined to Mexico, the damage will be presumed to have occurred in Mexico absent a preponderance of direct evidence to the contrary. Except as otherwise stated in these terms and conditions, neither party waives any rights or remedies it may have as to any third party.