These terms and conditions are effective immediately and are subject to change without notice; see www.shipmercury.com
for a current copy. These Terms and Conditions supersede and replace all
previous Terms and Conditions published by Mercury Business Services, Inc.
The following TERMS AND CONDITIONS OF SERVICE shall apply to all services performed by MERCURY BUSINESS
SERVICES, INC., including but not limited to freight forwarding, indirect air
carrier services, property broker services and arranging for warehousing
services in connection with any of the foregoing or as a standalone service, and
shall be binding on all customers, shippers, exporters, importers, senders,
receivers, owners, consignors, consignees, transferors, transferees and third
parties to or for whom MERCURY BUSINESS SERVICES, INC. provides services, as
specified further below.
FOR PURPOSES OF THESE TERMS
AND CONDITIONS, customer or customers shall include, but not necessarily be
limited to the shipper, consignee, owner, person requesting arranging for
storage services, and any of their respective representatives or agents or any
person or entity claiming an interest in goods in connection with which MERCURY
BUSINESS SERVICES, INC. performs any service.
GENERAL TERMS AND CONDITIONS OF SERVICE
Application and Scope
These Terms and Conditions of
Service apply to all transportation and related services provided in interstate
and intrastate commerce to, from or within the United States (and its
territories), Canada, and Mexico and/or other foreign or international commerce
by Mercury Business Services, Inc. in accordance with their respective
capacities set forth below:
- Mercury Business Services, Inc. (Mercury), is a domestic (U.S.)
and international air freight forwarder providing services as a duly certified
Indirect Air Carrier, NE0807003, including the issuance of house air waybills
for individual shipments, assembly, consolidation and arrangement of
transportation of goods via direct air carriers, pursuant to exemptions at 49
U.S.C. 13531 and 13506(8).
- Mercury is authorized as a surface freight forwarder by the
Federal Motor Carrier Safety Administration under Docket No. FF-10639-P to provide
interstate ground transportation and related forwarding services.
- Mercury is authorized to operate as an interstate property
broker, as defined by 49 U.S.C. 13102(2) and 49 C.F.R. 371.2(a) of the
Regulations of the Federal Motor Carrier Safety Administration. Except as may
otherwise be agreed to in writing, Mercurys sole service when acting as
property broker is to arrange for the transportation of customers freight by
motor or rail carriers. In so doing, Mercury does not act in the
capacity of a motor or rail carrier and does not assume any care custody or
control over the customers freight or the manner and means in which motor or
rail carriers perform their services.
- Notwithstanding anything else contained in these Terms and
Conditions, or elsewhere, Mercury is neither a licensed customs house broker,
ocean freight forwarder nor non-vessel operating common carrier, nor does it
engage in providing such services on behalf of Customers. Rather, as part of
its services which are subject to these Terms and Conditions, Mercury may
arrange with licensed customs house brokers, ocean freight forwarders and
non-vessel operating common carriers to provide their respective services on
behalf of Customers, to the extent permitted by applicable law and regulation.
- In addition, Mercury may, in connection with its freight
forwarding or property brokerage services, or as a standalone service, arrange
for the storage of a customers goods by an independent warehouse operator. In
such event, Mercury takes no responsibility for the care, custody or control of
the customers stored goods. The warehouse operator is wholly responsible for
the care, custody and control of the customers goods and the warehouse
operators terms and conditions solely apply to the storage of the customers
goods, copies of which are available upon request.
- Notwithstanding anything else contained in these Terms and
Conditions, or elsewhere, when acting as a property broker Mercury assumes no
liability for loss, damage or delay of shipments it arranges to be transported
by interstate motor carriers on behalf of shippers. Any claim arising out of
or relating to such shipments, whether filed by Mercury on behalf of the
shipper or directly by the shipper with the carrier that transported a shippers
goods, are subject to the carriers standard terms and conditions and/or bill
of lading terms and or tariffs rule in effect at the time of the shipment.
Unless otherwise provided for
herein, the following terms are defined as follows:
"Mercury", MBS, "we", "our",
Carrier and "us" refer to
, and their respective employees, agents, successors,
assigns, divisions, affiliates and any subcontractors hired by Mercury.
the person, firm or company on whose behalf Mercury has been hired to perform
services, as well as the customers agents and/or representatives and any
principal on whose behalf it is acting or has an interest in the goods in
connection with which Mercury has been hired to perform any service, in any of
its service capacities. It is the responsibility of the Customer to provide
notice and copy(s) of these terms and conditions of service to all such agents
"consignor" means the person tendering goods to Mercury for
transport or storage and/or the person for whose account goods are being
transported or stored, and any and all agents and/or representatives of the
Shipper, including, but not limited to, secured parties, warehousemen, buyers
and/or sellers, shippers agents, including, without limitation, freight
forwarders, customs brokers or property brokers insurers and underwriters,
break-bulk agents, and consignees.
"receiver" means the person named as the "consignee"
on any shippers instructions, receipt, truck tag, waybill, bill of lading or
other document, the owner of the Goods, and all other persons lawfully entitled
to possession of the Goods upon delivery.
shall include, but not be limited to, the following: "carriers, truckmen,
cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen,
air carriers and others to which the goods are entrusted for transportation,
cartage, handling and/or delivery and/or storage or otherwise".
shall mean all information received directly or indirectly from Customer or
Third Parties, whether in paper or electronic form.
"You" and "yours"
shall refer to our customer, the shipper/consignor, the receiver/consignee,
their employees and agents and to all others with interest in the shipment.
a non-Negotiable Waybill, Bill of Lading, Delivery Receipt or similar shipping
document used to identify shipments tendered to Mercury for transportation.
"cargo", "items", "pieces",
"products", "commodities", Property
and "shipment" refers to articles of every kind or
description, including their packaging, containers or other shipping units
tendered to an accepted by Mercury for transportation, storage and/or delivery
as described or identified on the face of the Waybill.
"PPD" is a freight payment term meaning that the charges for
transportation and other services rendered at the request of the shipper, or
requested by the consignee for the shipper, are to be paid for by the shipper
or its designated agent. Notwithstanding the shippers primary responsibility
for payment on a prepaid shipment, both the shipper and consignee are jointly
liable for the payment of charges for transportation or other services because
both the shipper and consignee receive the benefit of the services.
"Terms and Conditions"
refers to these Terms and Conditions of Service a copy of which is available
upon request and is published and maintained on Mercurys website and may be
"Conditions of Contract"
refers to the Conditions of Contract delineated below.
These Terms and Conditions shall
constitute a binding contract on all customers, shippers and consignees to or
for whom Mercury provides services. These Terms and Conditions supersede and
negate any claimed, alleged or asserted oral contract, promise, representation
or understanding among the parties with respect to services to be performed by Mercury.
These Terms and Conditions shall
apply to all services provided by Mercury, except to the extent contrary to
applicable federal or state law, rule or regulation, and/or except to the
extent Mercury otherwise specifically agrees, in writing.
It is mutually agreed that these
Terms and Conditions shall, except as otherwise provided in the Terms and
Conditions, exclusively govern the rights and duties of Mercury and all persons
or entities described hereinabove. When Mercury is acting in its capacity as a
freight forwarder of property in interstate commerce, the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. 14706 will govern.
By accepting a quote and/or
tendering a shipment for rendering of services by Mercury, Customer, for itself
and all other parties at any time having an interest in the goods, agrees to
these Terms and Conditions, which no agent or employee of the parties may
alter. No employee or agent of Mercury is authorized to change, modify or waive
any of these Terms and Conditions without the written consent of an authorized
executive of Mercury.
Customer warrants that:
- It is either the owner or authorized agent of the owner of the
goods and that it is accepting these Conditions of this Contract not only for
itself, but also as agent for and on behalf of the owner.
- The description and particulars of any goods furnished by or on
behalf of Customer are complete and accurate.
- All goods will be properly and sufficiently prepared and packed
suitable to the mode of transport to protect the goods from loss or damage, and
properly labeled and/or marked appropriate for the mode of transport.
- The goods do not comprise or contain any explosive, incendiary or
other device, hazardous substance or weapon which may endanger life or the
safety of any transport conveyance or which may cause or is likely to cause
loss, damage, injury to or death of any person or property.
- The goods do not contain any undeclared dangerous or hazardous
materials within the meaning of current IATA Dangerous Goods Regulations
("Regulations") and Customer will not tender such goods to Mercury
without obtaining Mercury's prior consent. Where such consent is granted, Customer
warrants that all such goods are packed, marked, and labeled and otherwise meet
all documentation requirements and provisions of the Regulations and it has
complied with all statutes, rules and regulations of any and all governments
and governmental agencies governing its activities.
- Customer warrants and agrees that it will, in writing, provide
any special handling instructions in connection with any cargo it requests be
handled by Mercury. Failure of the Customer to provide such written
instructions shall be presumptively a waiver of any special handling the cargo may
require, whether or not Mercury otherwise knew, or should have known, that the
cargo might require special handling.
- To the fullest extent possible. Customer shall obtain and provide
any and all documents necessary and required for the transportation, export or
import of its cargo, or as may be required for the importation of the cargo
into the commerce of the country of destination when being exported from the
U.S., including, without limitation, any export or import licenses. Under no
circumstances shall Mercury be responsible for any delay, seizure, return, fine
penalty, forfeiture, storage or return shipment charges, or any other
consequence due to the failure of the Customer to provide any and all documents
required to ensure the shipment can be delivered to the intended recipient.
- To the extent not otherwise specified herein, Customer shall
comply with all applicable laws and other government regulations of any
jurisdiction to, from or through which the shipment may be carried, including
those relating to the packaging, carriage or delivery of the shipment, and
shall furnish such information in writing and attach such documents as may be
necessary to comply with such laws and regulations. Mercury shall not be
obligated to inquire into the correctness or sufficiency of such information or
documents, perform any inspection or weighing of customers goods, or engage in
any other activity regarding verifying the quantity or condition of customers
goods. Mercury shall not be liable to Customer for damage, delay, loss or
expense due to the Customer's failure to comply with this provision.
- Undertakes to complete the carriage of a shipment tendered to it
with reasonable dispatch.
- May substitute alternate carriers or aircraft and may without
notice and with due regard to the interests of the Customer substitute other
means of transportation.
- Is authorized by Customer to select the routing and all
intermediate stopping places it deems appropriate or to change or deviate from
any routing instructions shown on the face hereof.
- For international air shipments, Mercury reserves the option to
act as an agent of the airline instead of as a Carrier, in which event the
direct airline's tariffs shall apply.
- Is authorized, unless express instructions in writing are
received from the Customer, to select and engage carriers, truck men, 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 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, truck men, lightermen, forwarders,
customs brokers, agents, warehousemen and others.
- If requested by customer may arrange for the storage of
customers goods, subject to the limitations and immunities set for in these
Terms and Conditions.
If there is any conflict or
inconsistency between these Terms and Conditions and, without limitation, any customers
or shippers instructions, shippers bill of lading or other shippers
transportation documents, or communications relating to a shipment, label, or
any other bill of lading issued in connection with services provided by Mercury,
the Terms and Conditions contained herein shall control and govern.
Notwithstanding anything else
contained in these Terms and Conditions they are subject to amendment by Mercury
without notice. Any amendment to these Terms and Conditions shall be published
on Mercurys website at http://www.shipmercury.com/Terms.
Your continued use of Mercurys services after publication of the amended Terms
and Conditions on our website shall constitute acceptance of the amended Terms
Advancement of Charges
Upon Customers request, Mercury
may, in its sole discretion, advance on the Customers behalf freight charges,
storage charges, customs duties and/or other related charges. For each such advancement
of charges, a service fee of 2.5% of the advanced amount will be assessed,
subject to a minimum advancement fee of $15.00.
Mercury reserves the right to
require the amount of any advancement of any charges to be deposited with
Mercury in cash prior to advancing the charges.
Application of Charges
- Except as otherwise provided for herein or in a separate written
contract, transportation charges and/or storage for a shipment will be assessed
on the gross weight of the shipment based on the greater of:
- The actual weight, or
- The cubic
dimensional weight determined in accordance with the Dimensional Weight Charge
- All charges, of whatever nature or kind will be assessed on the
basis of the service shown on the Waybill, other transportation document,
warehouse receipt or agreement, or shippers letter of instructions, as
applicable, at the rates in effect on the day of acceptance of the shipment.
- In computing charges, fractions will be rounded to the next
- Fractions of pounds will be assessed at the charge for the next
higher pound. Fractions of kilograms will be rounded up to the next higher
- Shipments may be subject to a Dimensional Weight Charge (or DIM
Factor) depending upon the weight, density and/or measurement of the shipment.
To obtain a quote or for more details about the applicability of Mercurys
Dimensional Weight Charge, please contact Mercury Customer Service.
- In case of loss or damage, the weight to determine Mercury's
limit of liability shall be the chargeable weight of the shipment OR a pro rata
share in the case of a partial shipment loss or damage, subject to the
limitations of liability set for the below.
Charges Prepaid or Collect
Shipments will be accepted with
freight payment terms stated as prepaid (by the shipper). When requested by the
shipper or the consignee and subject to approval by Mercury shipments may be
accepted with collect (from the consignee) payment terms. In that case, if the consignee
should refuse or fail to make payment for any reason, liability for payment
shall revert to the shipper.
Invoicing and Payment of Charges
All invoices must be paid by Customer as agreed, but in no circumstances more than thirty (30)
calendar days from the invoice date, in full without set off or deduction, unless otherwise agreed to by Mercury in writing. If Mercury agrees to
extend credit to customer in connection with a particular transaction it shall
not be considered a waiver of this provision by Mercury. Moreover, Mercury
shall be under no obligation to advance transportation, storage or charges,
customs duties or taxes on any shipment, nor shall any advance by Mercury be
construed as a waiver of the provisions hereof.
In the event payment of invoices
is not received within thirty (30) calendar days, or such other agreed upon
credit period, such invoices will be considered past due and any payments made
thereafter shall be considered a late payment. Past due invoices and late
payments shall be subject to an interest charge of 5% per month, or the highest
percentage permitted by law, added to all outstanding amounts and such other
late charges as may be applicable under the terms of our credit application. In
the event it becomes necessary to commence a lawsuit to recover past due
invoices or late payments, we will be entitled to recover reasonable attorneys
fees and costs incurred in the collection of these invoices.
Nothing herein shall limit the
right of Mercury to require prepayment or a guarantee of the transportation or
other charges at the time of shipment or prior to delivery.
Dangerous Goods/Hazardous Materials
Prior to shipment or storage, Shipper
must provide Mercury in writing the details of any type of hazardous material
or dangerous goods (Hazmat) it proposes to ship with Mercury, together with
all documents necessary and proper for the booking and transport of such cargo,
consistent with the authorities listed below, or elsewhere in this Agreement.
Mercury retains the right not to undertake handling of any Hazmat shipment
until and if it is satisfied it has all the information and documentation
needed to properly book and transport the Hazmat. Shipper waives any claim of
delay, or any other claim which may result, due to Mercury ensuring it has
received from the shipper all that is necessary to properly transport a Hazmat Shipment.
Moreover, notwithstanding anything else contained in this provision or this
Agreement, Mercury retains the right to refuse any shipment, whether or not Hazmat,
for any reason.
Hazmat means those commodities,
which are transported in accordance with the provisions set forth in the rules
and regulations in:
- Title 49 of the U.S. Code of
Federal Regulations ("CFR"), revisions thereto or reissues
- The "Dangerous Goods
Regulations" published by the International Air Transport Association
("IATA"), revisions thereto or reissues thereof.
- The International Civil
Aviation Organization ("ICAO") "Technical Instructions for
the Safe Transport of Dangerous Goods by Air" published by ICAO,
revisions thereto or reissues thereof.
- The "International
Maritime Dangerous Goods (IMDG) Code" published by the International
Maritime Organization, revisions thereto or reissues thereof.
If Mercury accepts for transport
the shipment, then the shipper must comply with all of the rules and
regulations set forth in:
- Title 49 of the U.S. Code of
Federal Regulations ("CFR"), revisions thereto and reissues
- The "Dangerous Goods
Regulations" published by the International Air Transport Association
("IATA"), revisions thereto and reissues thereof.
- The International Civil
Aviation Organization ("ICAO") "Technical instructions for
the Safe Transport of Dangerous Goods by Air" published by ICAO,
revisions thereto or reissues thereof.
- The "International
Maritime Dangerous Goods (IMDG) Code" published by the International
Maritime Organization, revisions thereto or reissues thereof.
If the shipment contains
Dangerous Goods/Hazardous Material, the shipper shall have the responsibility
to so state on the Waybill and shall also submit a signed Shipper's Declaration
for Dangerous Goods/Hazardous Materials.
All shipments of Dangerous
Goods/Hazardous Materials between points in the United States will be assessed
a minimum service charge of $30.00 per shipment for handling and transportation
of such goods in addition to all other applicable charges.
All shipments of Dangerous
Goods/Hazardous Materials to, from or between points outside the United States
may be subject to additional service charges for handling and transportation of
dangerous goods. Mercury shall determine the amount of such charges, which may
vary depending upon, among other things, the nature of the goods, the origin,
the destination and the mode of transportation.
Shipper agrees to be in
compliance with all State and Federal statutory requirements with respect to
shipping Dangerous Goods and/or Hazardous Materials.
Mercury reserves the right to
reject any goods of a dangerous or damaging nature, any security classified
cargo, and any goods subject to the Arms Export Control Act. If such goods are
accepted and then in the opinion of Mercury it decides that such goods
constitute a risk to other shipments, property, life or health, Mercury
reserves the right at the expense of Customer to remove or otherwise deal with
the goods. Customer will be responsible for the suitable reception, handling,
and storage of such cargo in accordance with the Regulations and all other
international, federal, state and local ordinances, regulations and
Document Retention/TSA Regulations
All cargo tendered for air
transportation is subject to security regulations of the Department of Homeland
Security/Transportation Security Administration (TSA), and as appropriate the
regulations of other government agencies. Copies of all relevant shipping
documents showing the cargo's consignee, consignor, description and other
relevant data will be retained on file for at least thirty (30) days, or as
required by the regulations of cognizant government agencies, including, without
limitation, TSA, the U.S. Department of Commerce Export Administration, U.S.
Customs and Border Protection. and the U.S. Department of Transportation.
In particular, TSA, which has
authority over the security and safety of the transportation systems within and
connecting to the U.S., has instituted regulations and amendments that govern
the movement of cargo. All shippers must comply with all applicable TSA
regulations, as well as Mercurys policies and procedures. In the event you
fail to comply with any applicable regulations, policies or procedures, we
cannot ensure requested service levels or that your shipment will be
transported via aircraft, and we reserve the right to use alternate means to
deliver your shipments. If you have any questions about transporting shipments
by air or applicable regulations, policies or procedures, please call Mercury
to speak with a customer service representative.
Inspection of Shipments
General All Shipments
Mercury may, but shall not be obligated to, inspect or weigh any shipment. No
liability shall attach to Mercury if Mercury refuses to carry or arrange for
the carriage or storage of a shipment based on a good faith determination of
what it understands to be the applicable law, regulation, demand, order or requirement.
Additionally, all shipments may be subject to inspection by:
- The carrier[s] or their agent[s]
- Government officials
- Personnel authorized by the government to inspect shipments.
Inspection of Air Shipments
In accordance with TSA regulations all shipments transported on aircraft are
subject to inspection or being searched by Mercury, its agents, government
officials or other authorized personnel to ensure the security and safety of
any aircraft and its passengers. By tendering your cargo for transportation you
consent to the search or inspection of your cargo.
Liabilities Not Assumed
Except as may otherwise be
prohibited by law, these Terms and Conditions, or as agreed to by Mercury, carriers
or warehousemen that Mercury selects for transport or to store customers goods,
Mercury shall not be liable to the customer or shipper or to any other person that
may claim an interest in the goods for any miss-delivery, missed pickup,
non-delivery, delay, damage or loss of whatever nature or kind, arising out of
or in connection with the shipment, storage or other services performed or
arranged for by Mercury
Without limiting the generality
of the foregoing, neither Mercury nor the carriers, warehousemen or others it selects
to transport, store or provide other services in connection with a shipment,
shall be liable for any loss, damage, miss-delivery, non-delivery, or other
result caused by:
- The act, default or omission of the shipper, consignee or any other party claiming an interest in the shipment including, but not limited to, incorrect declaration of cargo, improper or insufficient packing, securing, marking or addressing of your shipment, or for the acts or omissions of the recipient.
- The nature of the shipment or any defect, characteristics or inherent fault thereof.
- Failure of the shipper or consignee to observe any of the rules contained in these Terms and Conditions.
- Acts of God, weather conditions, mechanical delay of aircraft or other equipment failures, perils of the air, public enemies, public authorities acting with actual or apparent authority, acts or omission Mercury Business Services, Inc // 02212018 Page 8 of custom officials, authority of law, quarantine, war, threat of or acts of terrorism, riots, strikes or civil commotion.
- Acts or omissions of any person other than Mercury, including delivery instructions from the shipper or consignee with which Mercury complies.
- Any special, exemplary, punitive or consequential damages, including, without limitation, any loss of revenue profits or business opportunity, whether or not Mercury knew beforehand such damages might be incurred. Except as otherwise provided for in this Agreement or Mercury’s bill of lading, or other transportation document issued by Mercury or any carrier it selects to transport a shipment, Mercury’s liability shall be limited to a refund of the shipping charges in the event of any miss-delivery, missed pickup, non-delivery, delay, damage or loss of whatever nature.
- Erasure of data from or the loss or irretrievability of data stored on magnetic tapes, files or other storage media, or erasure or damage of photographic images or soundtracks from exposed film.
- The loss of any personal or financial information including, but not limited to, social security numbers, dates of birth, driver's license numbers, credit card numbers and financial account information.
- Shipments released without obtaining a signature at residential addresses, and at nonresidential addresses if a signature release is on file.
- Unavailability of equipment or space therein.
- Compliance with delivery instructions from the Customer or consignee or non-compliance with special instructions from the Customer or consignee not authorized by Mercury's rules.
- Shortage of articles loaded and sealed in containers by the Customer provided the seal is unbroken at the time of delivery and the container retains its basic integrity.
- Failure of Mercury, or any carrier that Mercury selects, to pick-up, transport or deliver shipment by a stipulated date or time, unless any of those are guaranteed in writing by Mercury.
Mercurys liability shall in no event exceed that set forth in the limitations of liability provisions contained herein.
When Mercury arranges for
carriage, storage or other services to be performed by third-parties in
connection with a shipment, and loss, damage, expense or delay occurs during
such activity, Mercury assumes no liability as a carrier, warehouseman or other
service provider and is not to be held responsible for any loss, damage,
expense or delay to the goods except as provided below. When Mercury carries,
stores or otherwise physically handles a shipment, it does so subject to the
limitation of liability set forth herein.
Unless services are performed by
persons or firms engaged pursuant to express written instructions from the Customer,
Mercury shall 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; advice by Mercury that
a particular person or firm has been selected to render services with respect
to the goods, shall not be construed to mean that Mercury warrants or
represents that such person or firm will render such services nor does Mercury
assume responsibility or liability for any action(s) and/or inaction(s) of such
third parties and/or its agents, and shall not be liable for any delay or loss
of any kind, which occurs while a shipment is in the custody or control of a
third party or the agent of a third party selected by Mercury to forward, enter
and clear, transport or render other services with respect to such goods.
Mercury disclaims any duty to
accept or to lodge any claim on behalf of the Customer with third-parties. All
claims in connection with the acts or omissions of a third party shall be
submitted directly to such party and/or its agents by the Customer. However,
Mercury may, in its sole discretion, and at the request of the Customer, file a
claim. In the event Mercury does file a claim at the Customers request, it is
strictly understood it is done solely as an accommodation and Mercury does not
undertake any duty or liability for the adjustment of the claim by the party
with which the claim was filed or following up on such adjustment. In all
events, the Customer shall be solely responsible for pursuing the claim
directly with the third-party. Notwithstanding the foregoing Mercury shall
reasonably cooperate with the Customer in connection with the Customers pursuit
of the claim, who shall be liable for any charges or costs incurred by Mercury.
Due to the nature of the
transportation business, Mercury cannot guarantee pick up, transportation or
delivery by a stipulated date or a stipulated time, nor shall Mercury be liable
for the consequences of failure to do so. Mercury specifically does not
guarantee delivery by a stipulated date or a stipulated time of any item
shipped via the United States Postal Service.
Liability for Charges and Indemnification
The customer, shipper, consignee owner
and current possessor of goods shall be liable, jointly, and severally, for all
unpaid charges payable on account of a shipment including, but not limited to,
sums advanced or disbursed by Mercury on account of such shipment.
The customer, shipper, consignee
owner and current possessor of goods shall be liable, jointly and severally, to
pay or indemnify and hold us harmless for all liabilities, losses, costs, claims,
fines, penalties, damages, costs or other sums which may be incurred, suffered
or disbursed by us, together with reasonable expenses, including attorneys'
fees, incurred by Mercury in connection with defending such claim or legal
action and obtaining reimbursement from the Customer, arising out of or related
- Customer's or its agents' breach of, or failure to observe or
perform any of, the warranties contained herein;
- The negligence of Customer or its agents or the violation of any
applicable laws or regulations by Customer or its agents;
- Any and all duties, taxes, levies, fines, penalties and other
outlays imposed by any authority in relation to the goods arising out of Mercury
acting in accordance with Customer's instructions or in a manner customarily
expected of a carrier under the circumstances.
In the event that any claim, suit
or proceeding is brought against Mercury by a third party it shall give notice
in writing to the Customer by mail, at Customers address on file with Mercury,
tendering the defense of the claim, suit or proceeding to the Customer, and Customer
agrees to accept such tender.
Liens on Shipments
Mercury shall have a lien on the
shipment for all sums due and payable to us including past due charges, whether
or not the goods for which the charges are due are in Mercurys possession or
under its care, custody or control. In the event of non-payment of any sum
payable to Mercury, the shipment may be held by Mercury subject to storage
charges and/or disposed of at public or private sale for satisfaction from the
proceeds of such sale all sums due and payable, including storage charges and
costs of sale. Mercury shall provide written notice to Customer of its intent
to exercise such lien, the amount of monies due and owed, as well as any
on-going storage or other charges; Customer shall notify all parties having an
interest in its shipment(s) of Mercurys rights and/or the exercise of such
lien. The shipper and/or consignee shall continue to be liable for the balance
of any unpaid charges payable on account of the shipment. All charges are
payable to the corporate office of Mercury in US Dollars.
Costs of Collection
In any dispute involving monies
owed to Mercury, Mercury shall be entitled to all costs of collection,
including reasonable attorneys fees and interest at 15% per annum or the
highest rate allowed by law, whichever is less, unless a lower amount is agreed
to by Mercury.
Limitations of Liability
Air and Ground Shipments
Mercurys liability for loss or damage claims for air and ground shipments
shall be as follows:
- For air or ground shipments not having a declared value at the
time of shipment, Mercurys liability for loss, damage, delay or mis-delivery
to any air and/or ground shipment in the US, or to or from Canada or Mexico,
except as provided below, is limited to, and shall be the lesser of either,
$0.50 per pound multiplied by the number of pounds of each piece(s) of the
shipment which may be the subject of a claim (but not less than $50.00 per
shipment), the actual value of such piece(s), the repair cost or the
replacement cost. If you declare a higher value and pay an additional charge
(see Declared Value sub-section below), Mercurys liability will be the lesser
of your declared value or the actual value of the shipment.
- For ground shipments not having a declared at the time of
shipment, and shipping intra-provincial or inter-provincial in Canada and/or
any interstate ground shipment to the U.S. or Mexico originating from Canada
where the loss or damage occurs within Canada Mercurys 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. If you declare a higher value
and pay an additional charge (see Declared Value sub-section below), Mercurys
liability will be the lesser of your declared value or the actual value of your
shipment. Determination of our 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 in Air and Ground Shipments section above.
International Air Shipments
The international carriage of shipments by air will be deemed to be subject to the
Montreal Convention of 1999 (Montreal Convention). For international air
shipments not having a declared or insured value declared at time of shipment, Mercurys
liability for loss or damage to international air shipments shall be limited in
accordance with the provisions of the Montreal Convention as follows:
- Liability for loss, damage or delay of a shipment shall be
limited to 19 Special Drawing Rights (SDRs) per kilogram, or the then current
adjusted rate limit as may be periodically reassessed under the provisions of
the Montreal Convention unless you declare a higher value for carriage and pay
an additional charge for such excess liability. The value of 1 SDR is as
determined by the International Monetary Fund at the date of judgment as
converted into national currency in round figures under applicable law.
- In the case of loss of, damage or delay to part of the cargo, the
weight to be taken into account in determining Mercurys limit of liability
shall be only the weight of the package or packages concerned.
- In the case of loss of, damage or delay to a shipment, the weight
to be used in determining Mercurys limit of liability shall be the weight that
is used to determine the charge for carriage of such shipment.
- In the case of loss of, damage or delay to a part of a shipment,
the shipment weight in section above 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. In the event the Montreal
Convention does not govern a loss, damage or delay claim, for any reason, all
the foregoing shall nonetheless be the basis for adjustment of a claim as a
matter of contract.
International Air Forwarding When acting as an international air forwarder, Mercurys
liability for arranging with a carrier to transport a shipment and related
services, is limited to the lesser of $.50 per pound or $50.00, whichever is
Declaring Higher Value to Third Parties
and third parties to whom goods are entrusted may
limit liability for loss or damage. In order to increase the potential for
recovery of a higher or full value for loss or damage to a shipment the shipper
must declare a higher value for carriage with the actual carrier transporting
Declared value is not
insurance and is not a guarantee that the full amount of the declared value is
recoverable. Any demand for satisfaction of a claim based on a declaration of
value must be documented to support the amount being claimed.
In the event the shipper makes a
declaration of value for carriage it will be required to pay an additional
freight charge to cover the increased liability assumed by Mercury or third
parties. The election of accepting the applicable limitation of liability or
paying an additional freight charge for increased liability is known as a
choice of liability or choice of rates.
When not acting as the carrier of
a shipment and issuing its own bill of lading, Mercury will make a declaration
of value in an amount specified by the Shipper in writing with third parties
that maintain limitations of liability, provided the shipper agrees to pay the
supplemental freight charge in consideration of the acceptance of the
declaration by the third party. In the absence of written instructions or the
refusal of the third party to agree to a higher declared value, at Mercurys
discretion, the goods may be tendered to the third party, subject to the terms
of the third partys limitations of liability and/or terms and conditions of
For shipments of extraordinary or
high value, or for used general merchandise, with the exception of negotiable
or non-negotiable instruments, for which Mercury acts as the carrier and issues
its own air waybill or bill of lading, the maximum declared value Mercury will
accept on any shipment is $50,000.00 per shipment. For shipments having a
declared value on the SLI/Waybill/Label prior to acceptance by Mercury, the
total liability of Mercury shall in no event exceed the declared value of the
shipment/piece or the actual value, the repair cost or the replacement cost, of
the shipment/piece, whichever is less, plus the amount of any transportation charges for which Customer may be liable.
A declared value of more than
$50,000 is only available on shipments of extraordinary or high value goods, or
for used general merchandise, with the exception of negotiable or
non-negotiable instruments, and only when Customer receives prior written
authorization from a senior Mercury manager or corporate officer (see
Extraordinary or High Value Goods section below).
Notwithstanding the foregoing,
where the shipper issues the bill of lading, the shipper must make such
declaration on the face of the bill of lading and Mercury accepts no
responsibility for tendering the shippers bill of lading to third parties for
carriage with no declared value.
Declared Value Claims
Any claims for loss/damage for a declared value for carriage greater than $5000
are subject to a deductible of $1000.
domestic (United States and U.S. territories) air and ground shipments,
Canadian ground shipments, and international air shipments the shipper may
request that new goods be insured. Unless requested to do so in writing and
confirmed to Customer in writing, Mercury is under no obligation to procure
insurance on Customers behalf; in all cases, Customer shall pay all premiums,
deductibles and costs in connection with procuring requested insurance. When
requesting insurance, the shipper must:
- Confirm that the goods are new, in original manufacturerpackaging
- Make a request for insurance.
- Pay the appropriate premium.
- Record the amount of the insurance in the space designated on the Shippers Letter of Instruction or Mercury Waybill/Label.
If the foregoing conditions are
met, the goods identified on our Waybill/Label will be insured under an open
policy. When such insurance is in place our liability shall in no event exceed
the insured value or the actual amount of loss or damage, whichever is lower,
plus the amount of any freight charges relating to such shipment. An additional
charge will apply for shipments having an insured value. The insurance is
subject to the terms, conditions, deductibles, exclusions and coverage (for
which certain risks are excluded) of the open policy, a copy of which is
available upon request. The maximum insured value Mercury will agree to on any
shipment is $50,000.00, unless you receive prior written authorization from a
senior Mercury manager or corporate officer.
Used merchandise and
non-containerized freight are only subject to recovery for an amount not
exceeding their declared value or used market value, whichever is less.
The value of any used equipment
will be based on sale price if sold or replacement value if not. Mercury will
not be responsible for mechanical derangement unless resulting from a peril
covered under Mercurys open policy.
Insurance is unavailable for
goods that are excluded from coverage under the open insurance policy, including,
but not necessarily limited to, the following, when the total declared value of
the shipment exceeds $500.00 or when the declared value exceeds $0.50 per
pound, per piece
- Household goods and/or personal effects
- One-of-a-kind articles or models
- Valuable rugs (i.e., oriental rugs, persian rugs)
- Prints or lithographs
Insurance is limited, restricted,
subject to conditions, or subject to high deductibles with respect to certain
shipments, including, but not necessarily limited to, the following:
- Automobiles and motorcycles
- Computer equipment
- Glass, glassware, mirrors and glass tubes
- Lasers and laser equipment
- Televisions and other electronic equipment
- Truck shipments to or from Mexico
- Used goods, machinery or equipment
- Jewelry (other than costume jewelry)
No employee or agent of Mercury
has any authority to accept such articles for transportation or to waive the
limitations contained herein.
Mercury's maximum liability for
any ENVELOPE or LETTER is $25.00.
Extraordinary or High Value Goods Notwithstanding any other provisions herein, shipments of goods
with a value of more than $50,000 will be considered extraordinary or high
value goods and will not be accepted by Mercury unless you receive prior
written authorization from a senior Mercury manager or corporate officer. In
the event shipments of extraordinary value goods are accepted by Mercury, with
or without prior authorization, or such shipments are inadvertently accepted by
Mercury, Mercurys liability shall be limited in accordance with the above
sections (as applicable), subject to a maximum liability for such shipments of
$50,000 unless you receive prior written authorization from a senior Mercury
manager or corporate officer to declare a higher value for carriage and pay an
additional charge for excess liability.
Any declared value in excess of
the maximum allowed hereunder for which Mercury has not issued prior written
authorization is null and void and the acceptance by us for carriage of any
shipment with a declared value in excess of the maximum allowed hereunder does
not constitute a waiver of the maximum declared value provisions.
Insured Value Claims
Any claims for loss/damage for an insured value greater than $5000 are subject
to a $1000 deductible; in the case of computers and computer-related equipment,
the deductible will be the greater of 10% of the total insured value of the
shipment or $1000.
For the service in arranging for customs brokerage services on behalf of the Customer,
Mercurys liability shall be limited to $50.00 per entry. Mercury disclaims
any responsibility for any acts or omissions of the customs broker in the
performance of its services on behalf of the shipper.
Special Damages In
no event and under no circumstances shall Mercury be liable for any special,
exemplary, punitive, incidental or consequential damages, including but not
limited to loss of profits or income or business opportunity, whether or not
Mercury had notice or knowledge that such damages might be incurred.
Any exclusion or limitation of
liability applicable to Mercury shall apply to and be for the benefit of
Mercury's agents, servants and representatives and any person whose equipment
is used by Mercury for carriage and its agents and representatives. For
purposes of this provision, Mercury acts herein as agent for all such persons.
On arrival of the goods at the
place of destination, subject to the acceptance of other instructions from the Customer
prior to arrival, delivery will be tendered to the consignee. If the consignee
declines to accept the tender of goods, or cannot be communicated with,
disposition will be made in accordance with instructions of the Customer. Customer
shall be liable for all costs in either returning the shipment or warehousing
the shipment pending its disposition or both. When no delivery signature is
required, Customer releases Mercury from all liability from any loss or damage
claim for the shipment.
Notice and Disposition of Property
When shipments arrive at
destination, we will promptly notify the consignee and/or his designated agent
or broker if we are not delivering to the consignee.
If, at the expiration of the free
storage time provided herein, a shipment containing nonperishable property is
unclaimed or delivery cannot be effected, we will so notify the shipper and
consignee, by telephone, email, facsimile or mail (at the addresses shown on
the Waybill). In such event the cost of continued storage, if paid for or
payable by Mercury or any agent of Mercury, shall be paid by Customer to Mercury
upon demand. Upon written instructions from the shipper, we will arrange to
return the shipment to the shipper, forward or re-consign it, or otherwise
dispose of it, all at the shipper's expense.
If no such instructions are
received within thirty (30) days after the date of notice is given, we will
arrange disposal of the shipment at public or private sale.
Un-cleared Import Shipments held
at government warehouses will be recovered only when all costs have been paid
Packing and Marking Requirements
Shipments must be prepared or
packed to ensure safe transportation with ordinary care in handling and in
accordance with the requirements of any carrier or other agent that Mercury
selects for the shipment.
Any article susceptible to
damage by ordinary handling must be adequately protected by proper packing and
must be marked or bear appropriate labels.
Any article susceptible to damage
as a result of any condition which may be encountered in transportation, such
as high vibration or high or low temperature variations, high or low
atmospheric pressure variations, must be adequately protected by proper packing
and any other necessary measures.
Each piece must be legibly and
durably marked with the name and address of the shipper and consignee. When a
container is used repetitively, all old labels, tags markings, etc. must be
Mercury assumes no duty to, but may,
in its sole discretion, arrange for packaging of shipment if requested by customer
in writing and at customers sole expense, including a service charge by
Mercury for arranging for the packing service.
Any rates or charges for services
set forth in a rate quote, rate sheet, contract or other document are subject
to change without notice. Additionally, the shipments may be assessed
accessorial charges and/or surcharges for additional services not covered in
the Rate Quote and/or Rate Sheet. Under no circumstances will rates or charges
be considered guaranteed for a particular period unless specifically agreed to
Quotations as to fees, rates of
duty, transportation charges, insurance premiums or other charges given by
Mercury to the Customer are for informational purposes; no quotation shall be
binding upon Mercury unless Mercury 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 Mercury and the Customer.
All rates and fees are subject to
change without notice.
Routing and Re-routing
Unless Customer gives express
written instructions designating carrier(s) to be used, routing or re-routing
or storage of a shipment, Mercury has complete freedom in choosing the means,
route and procedure to be followed in handling, transportation and delivery.
Mercury shall not be liable in any way for complying with the instructions issued
by the client.
Except as specified elsewhere in
these Terms and Conditions, shipments of general commodities will generally be
considered acceptable for transportation only when the rules and provisions
shown herein and all laws, ordinances, and other governmental rules and
regulations governing the transportation thereof have been compiled with by the
shipper and/or consignee.
Shipments not Acceptable for Transportation
Shipments of the following
commodities or nature will not be accepted by Mercury for transportation unless
authorized by a Mercury Corporate Officer
- Architectural Models
- Corpses, cremated orDisinterred remains
- Fresh Food Products
- Fur and Fur trimmed articles
- Hazardous Waste Materials
- Live animals
- Money, currency, bonds, Bills of Exchange, Deeds, Promissory Notes, Negotiable Securities and Stock Certificates
- Nursery stock and plants
- Original manuscripts or electronic media
- Wearing apparel designs of which no other copy exists
- Packages that are wet, leaking, or emit an odor of any kind
- Personal effects
- Postage, trading or revenue stamps, stamp collections and coin collections.
- Precious metal, including but not limited to, gold, silver or platinum in the form of bullion, jewelry or any other form.
- Used furniture or household goods uncrated or unwrapped (unless in relation to arranging packaging with a Mercury agent).
- Shipments as classified in 49 CFR Parts 171-177 Hazardous Material Regulations of the US, with the following hazard class or divisions:
- Explosives of class 1 with the following divisions: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, or known by class name prior to Jan. 1, 1991 as class A, B, C and blasting agents respectively. Division 1.6 had no applicable hazard class prior to Jan 1, 1991.
- Shipment of class 2 with the following division: 2.3 poison gas or ICAO/IATA toxic gas
- Shipments of class 4 with the following divisions: 4.1 flammable solid, 4.2 spontaneously combustible material and 4.3, dangerous when wet material
- Shipments of class 5 with the following divisions: 5.1, oxidizer and 5.2, organic peroxide
- Shipments of class 6 with the following divisions: 6.1 poisonous material or ICAO/IATA toxic substance and 6.2 infectious substance
- Shipments of class 7 (radioactive) material
- Shipments of an inherent nature or defect, which indicates to us that such transportation, could not be furnished by us without loss of or damage to the shipment.
- Shipments prohibited by U.S. Federal or State, or foreign countries governing laws, rules and regulations either at origin or destination.
- Shipments from unknown shippers for movement on passenger aircraft.
- Shipments which require that we obtain a federal, state or local license for their transportation if we have elected not to comply with such license requirements.
- Shipments containing alcohol, beer, wine, and/or tobacco.
- Shipments not expressly covered by these rules, or which would be likely to cause damage to other shipments, equipment, crew or passengers, the carriage of which is prohibited by law.
To the extent any of the
foregoing shipments are accepted by Mercury, with or without prior
authorization, or in the event any of the foregoing shipments are inadvertently
accepted by Mercury, such shipments shall be deemed and considered
extraordinary value items and our liability for loss or damage to such
shipments shall be limited in accordance with the provisions governing
extraordinary value items under Limitations of Liability provision above.
Shipments Subject to Advance Arrangements
The following will be accepted for carriage only upon advance arrangements and only when such advance arrangements have been satisfactorily completed.
- Any shipments having a declared or insured value exceeding $50,000.
- Shipments containing oversized pieces.
- Shipments requiring pickup or delivery of pieces which cannot be handled by one individual. Excessive weight or size shipments.
- Shipments requiring special devices for safe handling.
- Dangerous Goods as described in Dangerous Goods/Hazardous Materials provision.
Shipments Subject to Delay
The following conditions may delay delivery of the shipment to the consignee and Mercury shall have no liability for any damages asserted as a result of such delay:
- If the dimensions of the shipment are too large for available equipment.
- If the length of the shipment exceeds 108".
- Shipments that are improperly packaged or lack proper documentation.
- Shipments on which the shipper has omitted or provided an incorrect consignee address on the Waybill.
- Shipments requiring special licenses or consularization filing prior to export.
- Shipments difficult to handle, oversized or unwieldy, single pieces in excess of 150 pounds.
- Shipments containing Dangerous Goods/Hazardous Materials.
- Shipments not complying with US Department of Transportation, US Department of Homeland Security – Transportation Security Administration (TSA) regulations.
- Shipments subject to inspection, seizure or detention by any legally authorized authority.
- Shipments delayed because of national Holidays, weather-related conditions, natural disasters, or acts of God.
- Shipments delayed because of other conditions or circumstances beyond the reasonable control of Mercury.
Shipments Subject to Special Conditions
- Shipments requiring special devices for safe handling will be
accepted only when such special devices are provided and operated by and at the
expense of the shipper or consignee.
- Furs, Dangerous Goods, and items of extraordinary value must not
be included in the same shipment with any other article.
Storage and Charges
Customers expense, both Domestic and International shipments may be subject to
carrier and/or government, storage, demurrage, and/or other charges, sometimes
beyond an initial free grace period. Shipments held beyond a carriers or
governments maximum storage period are subject to disposition per the
carriers policy and/or government regulations.
The Waybill/Bill of Lading
- Except as otherwise provided or agreed to by Mercury, carriage and
or storage arranged by Mercury shall be subject, as applicable, to these Terms
and Conditions, and/or any tariffs, and/or contracts of carriage and/or service
agreements between Mercury and Customer, and/or, as applicable, the tariffs,
contracts of carriage, terms and conditions and or service agreements of the
carriers, warehousemen and other service providers with which Mercury engages
on behalf of the customer, as well as governing statutes and regulations. For
all ground and air shipments where a bill of lading or air waybill is issued by
the shipper it will serve solely as an acknowledgement of receipt of the
freight. These non-authorized bills of lading or air waybills are not a
contract of carriage and neither Mercury nor the nominated carrier will be
subject to its terms and conditions. Continued use of unauthorized bills of
lading by shipper will not, and does not, constitute an implied acceptance or
ratification by Mercury or the nominated carrier of the unauthorized bill
of lading or air waybill or their terms and conditions.
- The contents of all shipments must be indicated by accurate
description on the Air Waybill or Bill of Lading.
- The number of pieces included in a shipment must be specified on
the Air Waybill or Bill of Lading.
- The dimensions and weight of the shipment will be entered on the Air
Waybill or Bill of Lading per shippers instructions. Shipments may be
re-weighed at origin or destination.
- Any special handling, including, but not limited to, on or below
deck carriage, collect or COD charges, special handling or temperature
limitations, must be endorsed on the Air Waybill or Bill of lading.
- All the terms and conditions of contract or otherwise referred to
above shall be binding, whether or not a waybill or bill of lading is issued,
regardless of the mode of transport.
Applicable Law and Forum
To the extent not governed by
International Treaty, Convention or United States Federal Law, all disputes,
claims or actions arising hereunder shall be governed by, construed and
interpreted in accordance with the laws of the State of Massachusetts, without
regard to its conflict of laws principles. All actions, suits or proceedings
arising hereunder shall be brought in the United States District Court for the
District of Massachusetts, located in the City of Boston, Massachusetts, or, in
the absence of federal jurisdiction, the State courts of Massachusetts, located
in the city of Boston, Massachusetts, and Customer consents to the jurisdiction
and venue of such courts for all purposes, including the taking of
ADDITIONAL REQUIREMENTS FOR INTERNATIONAL
Letter of Instruction
In addition to the Mercury Shippers Letter of Instruction, Mercury accepts the
Mercuryship/MyShipNow domestic and international labels as the Shipper's Letter
of Instruction and will prepare any required export documentation from the
information shown thereon. For some shipments Mercury may act as an agent for
the airline, in which case, the airline's tariff applies. If you do not
complete all the documents required for carriage, you hereby instruct us, where
permitted by law, to complete the documents for you, at our option and at your
expense, and to attach them to the Waybill, but we are not obligated to do so.
We assume no liability to you or any other person for any loss or expense due
to your failure to comply with this provision. You further agree to hold us
harmless from and against all claims, damages, liabilities, actions, losses,
costs and expenses of any nature whatsoever arising out of your providing to us
incomplete, inaccurate or false documentation or your failure to provide
No Responsibility for Governmental Requirements
It is the responsibility of the Customer
to know and comply with the requirements of US CBP/TSA or foreign destinations,
the regulations of Other Government Agencies, both US and foreign, and all
other requirements, including regulations of Federal, state and/or local
agencies pertaining to the merchandise or property. Mercury 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.
Road Transport Notice
Shipments transported partly or solely by road, be there an explicit agreement to do so
or not, into or from a country that is a party to the Convention on the
Contract for International Carriage of Goods by Road (the "CMR") are
subject to the terms and conditions of the CMR, notwithstanding any other
provisions referred to or in these Terms and Conditions to the contrary, except
that the higher limitations of liability as set forth in these conditions shall
remain applicable as opposed to those set forth in the CMR.
Power of Attorney
Shipper authorizes Mercury to act as its air forwarding agent including compliance with
all export control laws and regulations, except as otherwise provided in these
Terms and Conditions, and excluding determining whether or not Customers goods
require an export license and obtaining such license. In furtherance of the
foregoing, Customer hereby certifies that all statements and information it
provides, whether written or oral, and any accompanying commercial of other
documents it prepares relating to the goods and their export shipment is true
The Shipper or his Authorized
Agent hereby authorizes Mercury, in Shippers name and on its behalf, as its
Attorney-in-Fact to prepare any import/export documents, to sign and accept any
documents relating to Shippers shipments and to engage third parties to
transport and/or store Shippers shipments in accordance with the bills of
lading, conditions of carriage and tariffs of the carriers employed.
Further, Shipper hereby appoints
Mercury as its Attorney-in-Fact solely for the purpose of designating a customs
broker to perform customs clearance (unless Shipper designates a customs
broker). In furtherance of the foregoing, Shipper shall be responsible for
executing a Power of Attorney, in form acceptable to U.S. Customs and Border
Protection, authorizing the customs broker to engage in customs business on
behalf of the shipper.
Notwithstanding anything else
contained in this term or the Terms and Conditions, the sole responsibility of
Mercury in arranging for the foregoing services is to use reasonable care in
the selection of carriers, forwarders, customs brokers, agents and others to
whom it may entrust Shippers shipments or provide import or export services.
Compliance with Law and Regulation
It is Shippers responsibility to provide proper and
accurate documentation in connection with all shipping, import or export
transactions. Shipper acknowledges that it is required to review all documents
and declarations prepared and/or filed and will immediately advise Mercury, or
in the case of imports the customs broker, of any errors, discrepancies,
incorrect statements, or omissions on any declaration filed on its behalf.
Mercury relies on the correctness of all documentation, whether in written or
electronic format, and all information that shipper furnishes. Shipper agrees
that it has an affirmative, non-delegable duty to disclose any and all
information required to import, export or enter the goods and shall indemnify
and hold Mercury harmless from any and all claims asserted and/or liability or
losses suffered by reason of your failure to disclose information or any
incorrect or false statement you make upon which Mercury reasonably relied.
Shipper is responsible for and
warrants its compliance with all applicable laws, rules and regulations,
including but not limited to customs laws; import, export and re-export laws;
and governmental regulations of any country to, from, through, or over which
your shipment may be carried. You agree to furnish such information and
complete and attach any such documents necessary to comply with such laws,
rules and regulations. We assume no liability to you or any other persons for
any losses or expenses due to your failure to comply with this provision.
Shipper is also responsible for all charges; including transportation charges
and all duties, customs assessments, governmental penalties and fines, taxes
and our lawyers' fees and legal costs, related to this shipment.
No Duty to Maintain Records for Customer
Customer acknowledges that pursuant to the Customs
Regulations, Export Administration Regulations, the Transportation Security
Administration Regulations and the Customs Regulations it is solely liable, to
maintain all records required by the various regulations for specific periods
of time; unless otherwise agreed to in writing, Mercury shall only keep such
records that it is required to maintain by statute(s) and/or regulation(s), but
not act as a recordkeeper or recordkeeping agent for Customer.
Loss or Damage Claims Procedure and Time Limits
Claims for loss, damage, or delay
of a shipment for which Mercury acted as a domestic or international air
forwarder or indirect air carrier must be filed in writing, within the time
limits set forth herein, to Mercury Business Services, Inc., 61 Batterymarch St, Boston, MA 02110. In the event you fail to file a written
claim within the time limits set forth herein, Mercury shall have no liability
for such claim and no further action may be brought against Mercury.
Air Shipments (Domestic and International)
Claims relating to domestic and international air
shipments must be made:
- For damage or shortage, immediately after discovery of the damage or shortage, but in no event later than 14 days from the date of delivery.
- For delay of the shipment, within 21 days from the date of delivery.
- For non-delivery of the shipment, within 120 days from the date the shipment was accepted by Mercury.
Except for shipments that are exempt pursuant to 49 USC Secs. 13531 and
13506(a)(8) and which shall be considered air shipments, claims relating to
ground shipments, must be made within 9 months from the date of delivery of the
shipment or, in the case of non-delivery, within 9 months after the date when
the shipment should have been delivered or on the date when the carriage
Time Limits for Suits Relating to Loss or Damage
Air Shipments (Domestic and International)
Suit for loss, damage or delay against Mercury relating
to an international or domestic air shipment shall be commenced no later than
two (2) years from the date of delivery, or from the date on which the shipment
ought to have been delivered, or from the date on which the carriage is
stopped. Any rights to damages shall be extinguished unless suit is commenced
within the time limits set forth herein.
Suit for loss, damage or delay against Mercury relating to any ground shipment
shall be commenced no later than two (2) years and one (1) day from the date
when Mercury gives you written notice that the claim (or any part or parts of
the claim) has been disallowed. Any rights to damages shall be extinguished
unless suit is commenced within the time limits set forth herein.
All claims are subject to proof
of value. After filing a claim or notice of intent, all documents required to
support the claim must be in Mercury's possession within thirty (30) days from
the date of Mercury's acknowledgment letter unless waived or extended by Mercury.
Failure to submit all supporting documents within this time limitation will
result in denial of the claim.
- Claims for overcharges, refunds or duplicate payments
(collectively overcharge claims) must be made in writing within ninety (90)
days from the date of delivery of the shipment that is the subject of the
claim, otherwise such claims shall be deemed waived by you. All overcharge
claims, along with any and all supporting documentation, shall be filed in
writing to: Mercury Business Services, Inc. Accounts Receivable Manager, 61 Batterymarch St., Boston, MA 02110.
- Suits to recover overcharge claims must be filed within eighteen
(18) months from the date of delivery the shipment that is the subject of the
claim. Any rights to damages shall be extinguished unless suit is commenced
within the time limits set forth herein.
No Right to Offset
YOU SHALL NOT HAVE ANY RIGHT
TO OFFSET OR DEDUCT UNPAID TRANSPORTATION OR OTHER CHARGES DUE AND OWING TO MERCURY
AGAINST UNPAID CLAIMS FOR LOSS OR DAMAGES, CLAIMS FOR OVERCHARGES, OR ANY OTHER
CLAIMS ASSERTED AGAINST MERCURY. MERCURY IS NOT OBLIGATED TO ACT ON ANY CLAIM
UNTIL ALL TRANSPORTATION CHARGES ARE PAID IN FULL.
No Obligation to Adjust Claim
NOTWITHSTANDING ANYTHING ELSE
CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MERCURY BE OBLIGED TO
UNDERTAKE ADJUSTMENT OF ANY CLAIM UNTIL ALL OUTSTANDING CHARGES DUE AND OWING
MERCURY IN CONNECTION WITH THE SHIPMENT(S) WHICH IS THE SUBJECT OF THE CLAIM, AS
WELL AS ALL SUMS DUE AND OWING FOR ALL OTHER CURRENT AND PRIOR SERVICES
RENDERED, HAVE BEEN FULLY SATISFIED. FURTHER MERCURY HAS NO OBLIGATION TO
UNDERTAKE ADJUSTMENT OF ANY CLAIM UNLESS THE GOODS AND THE PACKING THEY WERE
RECEIVED IN ARE HELD AT MERCURYS DISPOSAL FOR INSPECTION.
These terms and conditions shall be severable and if any part or term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof and the remainder hereof shall remain in full force and effect.