Terms and Conditions
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 by Westar International Forwarders (herein
called the "Company") on the following terms and conditions.
1. Services by Third Parties
Unless the Company 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 10 and
subject to the limitations of paragraph 8 below, but
undertakes only to use reasonable care in the selection of
carriers, truckmen, lightermen, forwarders, customhouse
brokers, agents, warehousemen and others to whom it may
entrust the goods for transportation, cartage, handling
and/or delivery and/or storage or otherwise. When the
Company carries, stores or otherwise physically handles the
shipment, it does so subject to the limitation of liability
set forth in paragraph 8 below unless a separate bill of
lading, air waybill or other contract of carriage is issued
by the Company, in which event the terms thereof shall
govern.
2. Liability Limitations of Third Parties
The Company is authorized to select and engage carriers,
truckmen, lightermen, forwarders, customhouse 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 agencies 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, 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 information 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, inter alia, 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 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 judgments in connection with the shipment and in no
instance shall be charged with knowledge by the Customer or
the true circumstances to which such inaccurate, incomplete,
or omitted information or documents 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, weight, measures,
values and other information in the language of and as may
be requested 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 8-10 below.
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 attorney's 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.
6. Declaring Higher Valuation
Inasmuch 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 trucker, 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 8-10 below with respect to any
claim against the Company and subject to the provisions of
paragraph 2 above.
7. Insurance
The Company will make reasonable efforts to effect 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 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 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 effect
insurance on any export or import shipment which it does not
handle.
8. Limitation of Liability
Subject to the provisions of 19 CFR Section 111.44, 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 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
in 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
Company's liability and the special compensation for the
added liability by it to be assumed.
9. Presenting Claims
Subject to the provisions of 19 CFR Section 111.44, in no
event shall the Company be liable for any act, omission or
default by it in connection with an exportation or
importation, unless a claim therefore shall be presented to
it at its office within ninety (90) days from date of
exportation or importation of the goods in a written
statement to 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) month after presentation of the
said claims, as above provided. No agent or employee of the
Company shall have authority to alter or waive any of
provisions of this clause.
10. Liability of Company
Subject to the provisions of 19 CFR Section 111.44, it is
agreed that any claim or demand for loss, damage, expense or
delay shall be only against the carriers, truckmen,
lightermen, forwarders, customhouse 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 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. The Company shall not in any
circumstances be liable for consequential or punitive
damages arising from loss of profit and shall not be liable
to the Customer for actual or statutory damages unless it is
first proven that the Company actually has knowledge of the
circumstances giving rise to such claims and that the
Company directly contributed to the act(s) allegedly causing
such damages.
11. 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 by construed as a waiver of the
provisions hereof.
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
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 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 liability of the
Customer to the Company to pay all charges or other money
due promptly on demand.
13. 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.
14. General Lien on any Property
The Company shall have a 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
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.
15. 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
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 documents relating to
these charges. In any referral for collection or action
against the Customer for moneys due the Company, upon
recovery by the Company, the Customer shall pay the expenses
of collection and/or litigation, including a reasonable
attorney fee.
16. No Responsibility for governmental Requirements
It is the responsibility of the Customer to know and comply
with the marketing requirements of the U.S. Customs
Services, the regulations of the U.S. Food and Drug
Administration, and all other requirements, including
regulations of Federal, state and/or local agencies
pertaining to the merchandise. The Company shall not be
responsible for action taken or fines or penalties assessed
by any 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.
17. Indemnity against Liability arising from the Importation
of Merchandise
The Customer agrees to indemnify and hold the Company
harmless from any claims and/or liability arising from the
importation of merchandise 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 private party.
In the event that any action suit or proceeding is brought
against the Company by any government agency or any private
party, the Company shall give notice 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.
18. Loss, Damage or Expense due to Delay
Unless the service to be performed by the Company on the
Customer are delayed be 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 such delay. In the event the Company is at fault,
as aforesaid, its liability is limited in accordance with
the provisions of paragraphs 8-10 above.
19. Construction of Terms and Venue
The foregoing terms and conditions shall be construed
according to the laws of the State of Pennsylvania. 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.
