Terms and conditions
Terms and Conditions of Service for Cavalier Logistics and All Affiliated Companies
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.
1. Definitions. (a) “Company” shall mean CAVALIER International Air Freight, Inc., its subsidiaries, related companies, agents and/or representatives including Cavalier Logistics, DC Dyna, Inc/Dynamo; (b) “Customer” shall mean the person for which the Company is rendering service, as well as its 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 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. 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 Claims and Suits. (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 ninety (90) days of the event giving rise to claim; 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 liquidation 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;
(v) For ground shipments – within two (2) years and one (1) day.
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; no quotation shall be binding upon the Company unless 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 payment arrangements are agreed to between the Company and the Customer.
5. Reliance On Information Furnished. (a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with the US Customs and Border Protection, other Government Agencies and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer’s behalf; (b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or export data to the United States and/or a third party, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable 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 reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
6.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 sole 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. 7. Insurance. 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. Failure to purchase such insurance relieves Company of all liability beyond the legal liability limits as set forth in Paragraph 22 below.
8.Disclaimers; Limitations of Liability. Company shall only be responsible to use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment. Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services. 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 request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s). In the absence of such additional coverage above, the Company’s liability shall be limited to the amounts as set forth in Paragraph 22 below. In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
9. Payment and 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. Customer shall pay to the Company in cash, or as otherwise agreed, all sums when due, immediately and without reduction or deferment on account of any claim, counterclaim or set-off.
10. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, fines, penalties, and/or attorney’s fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by the Customer or its agent or representative, 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, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, 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.
11.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 not have liability if the bank or consignee refuses to pay for the shipment.
12.Costs of Collection and Late Fee. Failure to pay Company invoice(s) shall entitle Company to all costs of collection, including but not limited to court costs, reasonable attorney’s fees and late fees of interest at 1 ½% per month (18% per annum) or the highest rate allowed by law, whichever is less.
13. 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 exact 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 letter of credit at sight, or, if the amount due is in dispute, posts 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, then Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
14. 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 other Laws and Regulations of the United States. Unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but shall not act as a “recordkeeper” or “recordkeeping agent” for Customer.
15. 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.
16. Preparation and Issuance of Bills of Lading. Where Company prepares and/or issues a 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 supplied by Customer.
17. 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.
18. 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 written 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 a reasonable attorney fees.
19. CAVALIER Related Companies: The Company is related to and shall include all of the names recited above in Paragraph 1 and each will share information with those entities and other related legal entities.
20.Severability. In the event any Paragraph(s) and/or portion(s) hereof is/are 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 Commonwealth of Virginia or the State of New Jersey dependent upon the jurisdiction below selected solely in the discretion of Company set forth herein without giving consideration to principals of conflict of law. Customer and Company: (a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of Virginia or New Jersey as determined solely in discretion of Company; (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.
22.Limitations of Liability
A. Air and Ground Shipments. Company’s liability for loss or damage claims for air, ground and ocean shipments shall be as follows:
1. Air and Ground Shipments. Company’s liability for loss or damage to any air and/or ground shipment in the U.S., Canada or Mexico is limited to $0.50 per pound multiplied by the number of pounds of each piece(s) of the shipment which may have been lost or damaged (but not less than $50.00 per shipment), or the actual value of such piece(s), whichever is less, unless Customer declares a higher value for carriage and pays an additional charge for excess liability, subject to a maximum of $25,000.00 per shipment. If Customer declares a higher value and pays an additional charge, Company’s liability will be the lesser of Customer’s declared value or the actual value of Customer’s shipment. Determination of Company’s limit of liability on any shipment shall be based on the weight of the package or packages lost or damaged.
2. Canadian Ground Shipments. For loss or damage to any Canadian intra-provincial or inter-provincial ground shipment and/or any interstate ground shipment to the U.S. or Mexico originating from Canada where the loss or damage occurs within Canada, Company’s liability is limited to $2.00 (CDN) per pound or $4.41 (CDN) per kilogram multiplied by the weight of each piece(s) of the shipment which may have been lost or damaged, or the actual value of such piece(s), whichever is less, unless Customer declares a higher value for carriage and pays an additional charge for excess liability, subject to a maximum of $25,000 per shipment. If Customer declares a higher value and pays an additional charge, Company’s liability will be the lesser of Customer’s declared value or the actual value of Customer’s shipment. Determination of Company’s limit of liability on any shipment shall be based on the weight of the package or packages lost or damaged. To the extent it cannot be determined that the loss or damage occurred within Canada on an interstate shipment originating from Canada, then such loss or damage will be deemed to have occurred within the United States and be subject to the limits of liability set forth herein.
B. International Air Shipments. The international carriage of shipments by air may be subject to the Warsaw Convention (1929), as amended at The Hague (1955) and as further amended by Montreal Protocol No. 1, 2 or 4 (collectively referred to as the “Warsaw Convention”) or the Montreal Convention of 1999 (“Montreal Convention”). Liability for loss or damage to international air shipments shall be limited in accordance with applicable law as follows:
1. Regardless of whether the Montreal Convention applies to Customer’s shipment, Company’s liability for loss, damage or delay of a shipment shall be limited to 19 Special Drawing Rights (SDRs) per kilogram, unless Customer declares a higher value for carriage and pays an additional charge for such excess liability.
2. In the case of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Company’s limit of liability shall be only the weight of the package or packages concerned.
3. In the case of loss of, damage or delay to a shipment, the weight to be used in determining Company’s limit of liability shall be the weight that is used to determine the charge for carriage of such shipment.
4. In the case of loss of, damage or delay to a part of a shipment, the shipment weight shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
C. Ocean Shipments.
1. Company Shipments. If all or any part of the shipment tendered to Company is carried by water over any part of said route, such water carriage shall be performed subject to the terms and provisions and limitations of liability specified by the “Carriage of Goods By Sea Act” which sets a limit of $500.00 per shipping unit and any other pertinent laws applicable to water carriers. The Customer or its agent hereby authorizes Company, in its name and on its behalf, to prepare any export documents, sign and accept any documents relating to said shipment and forward this shipment in accordance with the conditions of carriage and the tariffs of ocean carriers employed. The sole responsibility of Company hereunder is to use reasonable care in the selection of carriers, forwarders, agents and others to whom it may entrust the shipment.
2. Company Shipments. Ocean shipments arranged by Company shall be governed and controlled by the terms and conditions of Company’s bill of lading, as well as the bills of lading, conditions of carriage and tariffs of the carriers employed by Company.
D. Warehouse Limitations of Liability
1.Liability and limitation of Damages
a) The warehouseman shall not be liable for any loss or injury to goods stored however caused unless such loss or injury resulted from the failure by the warehouseman to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances and warehouseman is not liable for damages which could not have been avoided by the exercise of such care.
b) Goods are not insured by the warehouseman against loss or injury however caused.
c) The depositor declares that damages are limited to $75 per pallet, provided, however, that such liability may at the time of acceptance of this contract as provided in Paragraph 7 be increased upon depositor’s written request on part or all of the goods hereunder in which event an additional monthly charge will be made based upon such increased valuation.
d) Where loss or injury occurs to stored goods, for which the warehouseman is not liable, the depositor shall be responsible for the cost of removing and disposing of such goods and the cost of any environmental clean up and site remediation resulting from the loss or injury to the goods.
2.Notice of Claim and Filing of Suit
a) Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
b) No action may be maintained by the depositor or others against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in paragraph (a) of this section and unless such action is commenced either within nine months after date of delivery by warehouseman or within nine months after depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.
c) When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by warehouseman
3. Mysterious Disappearance: Warehouseman shall not be liable for loss of goods due to inventory shortage or unexplained or mysterious disappearance of goods unless depositor establishes
such loss occurred because of warehouseman’s failure to exercise the care required of warehouseman under Section D.1.a) above. Any presumption of conversion imposed by law shall
not apply to such loss and a claim by depositor of conversion must be established by affirmative evidence that the warehouseman converted the goods to the warehouseman’s own use.
1. Definitions. (a) “Company” shall mean CAVALIER International Air Freight, Inc., its subsidiaries, related companies, agents and/or representatives including Cavalier Logistics, DC Dyna, Inc/Dynamo; (b) “Customer” shall mean the person for which the Company is rendering service, as well as its 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 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. 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 Claims and Suits. (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 ninety (90) days of the event giving rise to claim; 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 liquidation 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;
(v) For ground shipments – within two (2) years and one (1) day.
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; no quotation shall be binding upon the Company unless 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 payment arrangements are agreed to between the Company and the Customer.
5. Reliance On Information Furnished. (a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with the US Customs and Border Protection, other Government Agencies and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer’s behalf; (b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or export data to the United States and/or a third party, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable 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 reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
6.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 sole 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. 7. Insurance. 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. Failure to purchase such insurance relieves Company of all liability beyond the legal liability limits as set forth in Paragraph 22 below.
8.Disclaimers; Limitations of Liability. Company shall only be responsible to use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment. Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services. 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 request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s). In the absence of such additional coverage above, the Company’s liability shall be limited to the amounts as set forth in Paragraph 22 below. In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
9. Payment and 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. Customer shall pay to the Company in cash, or as otherwise agreed, all sums when due, immediately and without reduction or deferment on account of any claim, counterclaim or set-off.
10. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, fines, penalties, and/or attorney’s fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by the Customer or its agent or representative, 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, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, 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.
11.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 not have liability if the bank or consignee refuses to pay for the shipment.
12.Costs of Collection and Late Fee. Failure to pay Company invoice(s) shall entitle Company to all costs of collection, including but not limited to court costs, reasonable attorney’s fees and late fees of interest at 1 ½% per month (18% per annum) or the highest rate allowed by law, whichever is less.
13. 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 exact 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 letter of credit at sight, or, if the amount due is in dispute, posts 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, then Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
14. 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 other Laws and Regulations of the United States. Unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but shall not act as a “recordkeeper” or “recordkeeping agent” for Customer.
15. 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.
16. Preparation and Issuance of Bills of Lading. Where Company prepares and/or issues a 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 supplied by Customer.
17. 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.
18. 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 written 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 a reasonable attorney fees.
19. CAVALIER Related Companies: The Company is related to and shall include all of the names recited above in Paragraph 1 and each will share information with those entities and other related legal entities.
20.Severability. In the event any Paragraph(s) and/or portion(s) hereof is/are 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 Commonwealth of Virginia or the State of New Jersey dependent upon the jurisdiction below selected solely in the discretion of Company set forth herein without giving consideration to principals of conflict of law. Customer and Company: (a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of Virginia or New Jersey as determined solely in discretion of Company; (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.
22.Limitations of Liability
A. Air and Ground Shipments. Company’s liability for loss or damage claims for air, ground and ocean shipments shall be as follows:
1. Air and Ground Shipments. Company’s liability for loss or damage to any air and/or ground shipment in the U.S., Canada or Mexico is limited to $0.50 per pound multiplied by the number of pounds of each piece(s) of the shipment which may have been lost or damaged (but not less than $50.00 per shipment), or the actual value of such piece(s), whichever is less, unless Customer declares a higher value for carriage and pays an additional charge for excess liability, subject to a maximum of $25,000.00 per shipment. If Customer declares a higher value and pays an additional charge, Company’s liability will be the lesser of Customer’s declared value or the actual value of Customer’s shipment. Determination of Company’s limit of liability on any shipment shall be based on the weight of the package or packages lost or damaged.
2. Canadian Ground Shipments. For loss or damage to any Canadian intra-provincial or inter-provincial ground shipment and/or any interstate ground shipment to the U.S. or Mexico originating from Canada where the loss or damage occurs within Canada, Company’s liability is limited to $2.00 (CDN) per pound or $4.41 (CDN) per kilogram multiplied by the weight of each piece(s) of the shipment which may have been lost or damaged, or the actual value of such piece(s), whichever is less, unless Customer declares a higher value for carriage and pays an additional charge for excess liability, subject to a maximum of $25,000 per shipment. If Customer declares a higher value and pays an additional charge, Company’s liability will be the lesser of Customer’s declared value or the actual value of Customer’s shipment. Determination of Company’s limit of liability on any shipment shall be based on the weight of the package or packages lost or damaged. To the extent it cannot be determined that the loss or damage occurred within Canada on an interstate shipment originating from Canada, then such loss or damage will be deemed to have occurred within the United States and be subject to the limits of liability set forth herein.
B. International Air Shipments. The international carriage of shipments by air may be subject to the Warsaw Convention (1929), as amended at The Hague (1955) and as further amended by Montreal Protocol No. 1, 2 or 4 (collectively referred to as the “Warsaw Convention”) or the Montreal Convention of 1999 (“Montreal Convention”). Liability for loss or damage to international air shipments shall be limited in accordance with applicable law as follows:
1. Regardless of whether the Montreal Convention applies to Customer’s shipment, Company’s liability for loss, damage or delay of a shipment shall be limited to 19 Special Drawing Rights (SDRs) per kilogram, unless Customer declares a higher value for carriage and pays an additional charge for such excess liability.
2. In the case of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Company’s limit of liability shall be only the weight of the package or packages concerned.
3. In the case of loss of, damage or delay to a shipment, the weight to be used in determining Company’s limit of liability shall be the weight that is used to determine the charge for carriage of such shipment.
4. In the case of loss of, damage or delay to a part of a shipment, the shipment weight shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
C. Ocean Shipments.
1. Company Shipments. If all or any part of the shipment tendered to Company is carried by water over any part of said route, such water carriage shall be performed subject to the terms and provisions and limitations of liability specified by the “Carriage of Goods By Sea Act” which sets a limit of $500.00 per shipping unit and any other pertinent laws applicable to water carriers. The Customer or its agent hereby authorizes Company, in its name and on its behalf, to prepare any export documents, sign and accept any documents relating to said shipment and forward this shipment in accordance with the conditions of carriage and the tariffs of ocean carriers employed. The sole responsibility of Company hereunder is to use reasonable care in the selection of carriers, forwarders, agents and others to whom it may entrust the shipment.
2. Company Shipments. Ocean shipments arranged by Company shall be governed and controlled by the terms and conditions of Company’s bill of lading, as well as the bills of lading, conditions of carriage and tariffs of the carriers employed by Company.
D. Warehouse Limitations of Liability
1.Liability and limitation of Damages
a) The warehouseman shall not be liable for any loss or injury to goods stored however caused unless such loss or injury resulted from the failure by the warehouseman to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances and warehouseman is not liable for damages which could not have been avoided by the exercise of such care.
b) Goods are not insured by the warehouseman against loss or injury however caused.
c) The depositor declares that damages are limited to $75 per pallet, provided, however, that such liability may at the time of acceptance of this contract as provided in Paragraph 7 be increased upon depositor’s written request on part or all of the goods hereunder in which event an additional monthly charge will be made based upon such increased valuation.
d) Where loss or injury occurs to stored goods, for which the warehouseman is not liable, the depositor shall be responsible for the cost of removing and disposing of such goods and the cost of any environmental clean up and site remediation resulting from the loss or injury to the goods.
2.Notice of Claim and Filing of Suit
a) Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
b) No action may be maintained by the depositor or others against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in paragraph (a) of this section and unless such action is commenced either within nine months after date of delivery by warehouseman or within nine months after depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.
c) When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by warehouseman
3. Mysterious Disappearance: Warehouseman shall not be liable for loss of goods due to inventory shortage or unexplained or mysterious disappearance of goods unless depositor establishes
such loss occurred because of warehouseman’s failure to exercise the care required of warehouseman under Section D.1.a) above. Any presumption of conversion imposed by law shall
not apply to such loss and a claim by depositor of conversion must be established by affirmative evidence that the warehouseman converted the goods to the warehouseman’s own use.