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All shipments of goods to or from the Customer, which term shall include the Shipper, exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments, will be handled by MBX Ocean Services, L.L.C. (herein called the “Company”), on the following terms and conditions:

1. Services by Third Parties. The Company, in providing services to the Customer, assumes no liability as carrier and is not to be held responsible for any loss, damage, expense or delay to the goods except as provided in paragraphs 2 and 11 and subject to the limitation of paragraph 8 below, but undertakes only to use reasonable care in the selection of carriers, lightermen, forwarders, stevedores, ocean transportation intermediaries, customs brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling, delivery, storage or other services with respect to the goods. If the Company stores or otherwise physically handles the goods, it does so subject to the limitation of liability set forth in paragraph 8 below.

2. Liability Limitations of Third Parties. The Company is authorized to select and engage ocean carriers, motor carriers, air carriers, lightermen, forwarders, stevedores, ocean transportations intermediaries, customs brokers, agents, warehousemen and others, as required, to transport, forward, enter and clear, store, deliver or render other services, all of whom shall be considered as the agents of the Customer, and the goods may be entrusted to such agent subject to all conditions as to limitation of 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, lightermen, forwarders, stevedores, ocean transportation intermediaries, customs brokers, agents, warehousemen and others to whom the Company may entrust the goods for transportation, cartage, handling, delivery, storage or other services. 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 the custody, possession or control of third parties selected by the Company to transport, forward, store, enter and clear, deliver 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 transportation, forwarding, storing, entering and clearing delivery and providing of other services to 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 of the shipment at a specific rate, fee, premium or other charge.

5. Duty to Furnish Information. (a) On an import, at a reasonable time prior to entering of the goods by 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, interalia, 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 or comply with U.S. laws or regulations, or if the information or documents furnished are inaccurate or incomplete, the Company shall be obligated only to use its best judgment in connection with the shipment and in no instance shall be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete or omitted information or document pertains. 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 U.S. and 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 paragraphs 2, 8 and 11 herein. 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, finer or expense including attorneys’ fees, resulting from any inaccuracy, incomplete statement, omission or any failure to make timely presentation, even if not due to any negligence of the Customer. The Customer also agrees to indemnify and hold harmless the Company from any loss, damage or liability resulting from inaccurate, incomplete or missing invoices, documents and information.

6. Declaring Higher Valuation. Inasmuch as ocean carriers, motor carriers, air carriers, lightermen, forwarders, stevedores, ocean transport intermediaries, customs brokers, agents, 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 ocean carriers, etc., the Company must receive specific written instructions from the Customer to pay such higher charge based on valuation and the ocean carriers, 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 ocean carriers, etc. subject to the limitations of liability set forth herein in paragraphs 2, 8 and 11 with respect to any claim against the Company.

7. Insurance. The Company will make reasonable efforts to effect insurance upon the goods only after specific written instructions have been received by the Company from the Customer 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 to be placed. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy of insurance or other insurance 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 underwriters. Should an insurer dispute its liability for any reason, the Customer shall have recourse against the insurer only and the Company shall not have 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.

8. Limitation of Liability for Loss, etc. (a) The Customer agrees that the Company shall only be liable for any loss, damage, expense or delay to the goods resulting from the negligence or other fault of the Company; such liability shall be limited to an amount equal to the lesser of fifty dollars ($50.00) per customs entry or shipment or the fee(s) charged for services, provided that, in the case of partial loss, such amount will be adjusted, pro rata; (b) Customer has the option of paying an additional fee and increasing the limit of Company’s liability up to the shipment’s actual value; however, such option must be exercised by written agreement, entered into in sufficient time prior to shipment from point of origin, setting forth the limit of the Company’s liability and the additional fee received; (c) in instances other than in (b) above, unless the Customer makes specific written arrangements with the Company to pay an additional fee and declare a higher value and Company agrees in writing, liability is limited to the amount set forth in (a) above; (d) Customer agrees that the Company shall, in no event, be liable for consequential, punitive, statutory or special damages, damages due to loss of market, damages due to delay, or lost profits in excess of the monetary limit provided for above.

9. Presenting Claims and Suit Time. Company shall not be liable under paragraph 8 for any claims not presented to it in writing within 90 days of either the date of loss or incident giving rise to the claim; or, in the case of non-delivery, within 90 days of the scheduled date of delivery. The presentment of a claim in writing is a condition precedent to any lawsuit to recover for any claim or demand. No lawsuit to recover for any claim or demand hereunder shall be brought against the Company unless instituted within 180 days after the date of presentation of the said claim. No agent or employee of the Company shall have authority to alter or waive any of the provisions of this clause.

10. 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 packing 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.

11. Liability of Company. It is agreed that any claim or demand for loss, damage, expense or delay shall be only against the ocean carriers, motor carriers, air carriers, lightermen, forwarders, stevedores, ocean transportation intermediaries, customs brokers, agents, warehousemen and others in whose actual care, custody or control the goods were 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 the actual custody or control of the Company and the damages alleged to have been suffered 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 8 herein shall apply. In no event shall the Company be liable for consequential, punitive, statutory or special damages, damages due to loss of market, damages due to delay, or lost profits in excess of the monetary limit provided for in paragraph 8 herein.

12. 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 ocean or other freight, duties, fines, penalties, liquidated damages or other money due rising 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 attorney’s 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 responsibility of the Customer to the Company to pay all fees, charges, expenses or other money due for services provided by the Company to the Customer promptly on demand.

13. Sale of Perishable Goods. Perishable goods or live animals handled, to be exported or which are cleared through Customs concerning which no instructions of 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 tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. In the event that any shipment is refused or remains unclaimed at destination or any transshipping point in the course of transit, is disposed of or is returned for any reason the Customer shall nevertheless pay the Company for all fees, 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.

14. 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 such 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 during transmission, or while in the course of collection.

15. General Lien on Any Property. The Company shall have a general lien on any and all goods (and documents relating thereto) of the customer, in its possession, custody or control or en route, for all claims for fees, charges, expenses or advances incurred by the Company in connection with any shipments of the Customer and 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 (return receipt requested), 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.

16. 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 ocean carriers, motor carriers, air carriers, lightermen, forwarders, stevedores, ocean transportation intermediaries, customs brokers, agents, warehousemen and others selected by the Company to transport, forward, store, enter and clear, deliver or render other services to 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.

17. Picking up Shipments or Samples. The Company shall not itself be obligated to pick up a shipment from a carrier or 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 care, custody and control of the Company, or 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 8 herein shall apply.

18. No Responsibility for Governmental Requirements. It is the responsibility of the Customer to know and comply with the marking requirements of the U.S. Customs Service, the regulations of the U.S. Food and Drug Administration, and all other requirements of law or official regulations, including but not limited to law and regulations of Federal, state, local and foreign governments pertaining to the goods. The Company shall not be responsible for action taken or fines or penalties assessed by a governmental agency against the shipment because of 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.

19. Indemnity against Liability Arising from the Importation of Goods. The Customer agrees to indemnify and hold the Company harmless from any claims and/or liability arising from the importation of goods which violates any Federal, state and/or other laws or regulations 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 attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of claims by any government agency or any private parties. In the event any action, suit or proceeding is brought against the Company, the Company shall give notice of such action, suit or proceeding in writing to the Customer by mail at its address on file with the Company. Upon receipt of such notice, the Customer at its own expense shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the Company.

20. 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, the Company shall not be responsible for any loss, damage or expense incurred by the Customer because of delay. In the event the Company is at fault, as aforesaid, its liability is limited in accordance with the provisions of paragraph 8 and 9 above.

21. Construction of Terms and Venue. The foregoing terms and conditions shall be construed according to applicable federal law or, in the absence of federal law, in accordance with laws of the State of Illinois. All lawsuits arising out of or relating to services provided by the Company to the Customer must be filed in a state or federal court located in Cook County, Illinois to which each party irrevocably consents to personal jurisdiction and waives all objections thereto.

22. Notice to Importer of Record (pursuant to 19 CFR Part 111.29 (b) (1):) If the Customer is the importer of record, payment to the broker will not relieve the Customer of liability for Customs charges (duties, taxes or other debts owed Customs) in the event the charges are not paid by the broker. Therefore if the Customer pays by check, Customs charges may be paid with a separate check payable to the “U.S. Customs Service” which shall be delivered to Customs by the broker.

23. Payment of Invoices. All invoices are due upon receipt and are considered delinquent if not paid within 15 days from the date of invoice. All delinquent accounts shall be subject to a late fee of 2% per month beginning on the 16th day after the date of the invoice until paid in full. Should the Company bring legal action for the collection of a delinquent account, the Company shall be entitled to reasonable attorneys’ fees, costs and expenses incurred by the Company in connection with the legal action, in addition to the amount of the delinquent account.

 

 

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