All shipments to or from the Customer, which term shall include the shipper, exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments, will be handled by Mercury Business Services, Inc. (herein called “Mercury”) on the following Terms and Conditions:
TERMS AND CONDITIONS OF SERVICE
These terms and conditions of service constitute a legally binding contract between Mercury and the Customer. In the event Mercury 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) Mercury shall mean Mercury Business Services, Inc., its subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which Mercury 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. Mercury as Agent. Mercury 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, Mercury acts as an independent contractor.)
3. Choosing Routes or Agents. Unless express instructions in writing are received from the Customer,Mercury is authorized 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.
4. Services by Third Parties. Unless Mercury carries, stores or otherwise physically handles the shipment, and loss, damage, expense or delay occurs during such activity, Mercury assumes no liability as a carrier and is not to be held responsible for any loss, damage, expense or delay to the goods to be forwarded or imported except as provided in paragraph 10 and subject to the limitations of paragraph 11 below, but undertakes only to use reasonable care in the selection of carriers, truck men, lightermen, forwarders, customs brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling and/or delivery and/or storage or otherwise. When Mercury carries, stores or otherwise physically handles the shipment, it does so subject to the limitation of liability set forth in paragraph 8 below unless a separate bill of lading, air waybill or other contract of carriage is issued by Mercury, in which event the terms thereof shall govern.
5. No Liability for the Selection or Services of Third Parties and/or Routes.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; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, Mercury shall reasonably cooperate with the Customer, which 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 beyond the deadline guarantees to specific shipment destinations stipulated by the vendor carrier that Mercury chooses, 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.
6. Quotations Not Binding. Quotations as to fees, rates of duty, transportation charges, insurance premiums or other charges given by Mercury to the Customer are for informational purposes only and are subject to change without notice; 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.
7. Reliance On Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with the Customs Service, other Government Agency and/or third parties, and will immediately advise Mercury of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customers behalf;
(b) In preparing and submitting customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, Mercury 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 Mercury 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 Mercury 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.
(c) On an import at a reasonable time prior to entering of the goods for U. S. Customs, the Customer shall furnish to Mercury invoices in proper form and other documents necessary or useful in the preparation of the U. S. Customs entry and, also, such further information as may be sufficient to establish, inter-alia, the dutiable value, the classification, the country of origin, the genuineness of the merchandise and any mark or symbol associated with it, the Customer's right to import and/or distribute the merchandise, and the merchandise's admissibility, pursuant to U. S. law or regulation. If the Customer fails in a timely manner to furnish such information or documents, in whole or in part, as may be required to complete U. S. Customs entry or comply with U.S. laws or regulations, or if the information or documents furnished are inaccurate or incomplete, Mercury shall be obligated only to use its best judgment in connection with the shipment and in no instance shall be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete, or omitted information or document pertains. Where a bond is required by U. S. Customs to be given for the production of any document or the performance of any act, the Customer shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by the Company as principal, it being understood that Mercury entered into such undertaking at the instance and on behalf of the Customer, and the Customer shall indemnify and hold Mercury harmless for the consequences of any breach of the terms of the bond. 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.
(d) On an export or import Mercury shall not in any way be responsible or liable for increased duty, penalty, fine or expense unless caused by the negligence or other fault of Mercury, in which event its liability to the Customer shall be governed by the provisions of paragraphs 10-12 below. The Customer shall be bound by and warrant the accuracy of all invoices, documents and information furnished to Mercury by the Customer or its agent for export, entry or other purposes and the Customer agrees to indemnify and hold harmless Mercury against any increased duty, penalty, fine or expense including attorneys' fees, resulting from any inaccuracy, incomplete statement, omission or any failure to make timely presentation, even if not due to any negligence of the Customer.
8. Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; Mercury 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 Mercury’s 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.
9. Insurance. Unless requested to do so in writing and confirmed to Customer in writing, Mercury 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.
10.Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Mercury makes no express or implied warranties in connection with its services;
(b) Subject to (c) below, Customer agrees that in connection with any and all services performed by Mercury, Mercury shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and Mercury shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by Mercury, 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 Mercury prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (b) above, Mercury’s liability shall be limited to the following:
i. where the claim arises from activities other than those relating to customs brokerage, $100.00 per shipment or transaction, or $0.50 per pound, per piece, of cargo lost, damaged, misdelivered or otherwise adversely affected, whichever amount is greater, but in no event shall amount exceed the actual invoice value of the goods.
ii. where the claim arises from activities relating to “Customs business,” $50.00 per entry or the amount of brokerage fees paid to Mercury for the entry, whichever is less;
(e) In no event shall Mercury 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.
(f) Mercury specifically does not assume liability for any shipment greater than the maximum liability assumed by any carrier Mercury selects for transportation of the shipment as stated in that carrier’s terms and conditions.
(g) Any shipment carrying a valuation of $1000 or more will not be delivered or released unless someone at the recipient’s address signs for receipt of the shipment. Customer agrees to pay the charge for this service
11.Limitation of Actions.
(a) Overcharge claims must be received in writing by Mercury within one year after date of acceptance of the shipment by Mercury.
(b) Unless subject to a specific statute or international convention, written notification on claims against Mercury (except concealed loss/damage claims) must be received in writing by Mercury within 90 days after Mercury accepted the shipment; the failure to give Mercury timely notice shall be a complete defense to any suit or action commenced by Customer.
(c) Notification of concealed loss/damage claims (i.e., claims for loss or damage discovered by the consignee after delivery and after a clear receipt has been given) must be received in writing by Mercury within 12 days after delivery, or if perishables, verbally within 48 hours. Mercury or the vendor carrier that Mercury selected for transportation must be allowed the privilege to make inspection of the shipment and the container(s) and packaging material(s) at place of delivery.
(d) Claims must be perfected within 180 days after delivery or date delivery was intended.
(e) No claims will be entertained until all transportation charges have been paid.
(f) Claims may not be deducted from transportation charges and no claims may be deducted from any charges owed Mercury.
(g) Legal action to enforce a claim must be brought within one year after the claim has been denied in writing by Mercury, in whole or in part.
12.Advancing Money. All charges must be paid by Customer in advance unless Mercury 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 Mercury. Mercury shall be under no obligation to advance transportation charges, customs duties or taxes on any shipment, nor shall any advance by Mercury be construed as a waiver of the provisions hereof.
13.Indemnification for Transport fees, Duties. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against Mercury for transportation, duties, fines, penalties, liquidated damages or other money due rising from a shipment of goods of the Customer, the Customer agrees to indemnify and hold harmless Mercury for any amount Mercury may be required to pay such carrier, other person or governmental agency 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; in the event that any claim, suit or proceeding is brought against Mercury, it shall give notice in writing to the Customer by mail at its address on file with Mercury.
14.No Responsibility for Governmental Requirements.
It is the responsibility of the Customer to know and comply with the marking requirements of the U. S. Customs Service, the regulations of the U. S. Food and Drug Administration, and all other requirements, 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 or with a notification issued to the Customer by any such agency.
15.Indemnify, Defend and Hold Harmless. The Customer agrees to indemnify, defend, and hold Mercury harmless from any claims and/or liability arising from the transportation, importation or exportation of customer’s merchandise or property and/or any conduct of the Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold Mercury harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney’s fees, which Mercury 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 Mercury, it shall give notice in writing to the Customer by mail at its address on file with Mercury. Upon receipt of such notice, the Customer at its own expense shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against Mercury.
16.C.O.D. or Cash/Collect Shipments. Mercury shall use reasonable care regarding written instructions relating to “Cash/Collect on Delivery (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 have not liability if the bank or consignee refuses to pay for the shipment.
17.Costs of Collection. In any dispute involving monies owed to Mercury, Mercury shall be entitled to all costs of collection, including reasonable attorney’s 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.
18.General Lien and Right to Sell Customer’s Property.
(a) Mercury shall have a general and continuing lien on any and all property of Customer coming into Mercury’s actual or constructive possession or control for monies owed to Mercury with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Mercury 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 Mercury’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, an acceptable bond equal to 110% of the value of the total amount due, in favor of Mercury, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Mercury 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.
19.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, 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.
20.Obtaining Binding Rulings, Filing Protests, etc. Unless requested by Customer in writing and agreed to by Mercury in writing, Mercury 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.
21.Preparation and Issuance of Bills of Lading. Where Mercury prepares and/or issues a bill of lading, Mercury 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, Mercury shall rely upon and use the cargo weight supplied by Customer.
22.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 Mercury; any attempt to unilaterally modify, alter or amend same shall be null and void.
23.Compensation of Mercury. The compensation of Mercury for all its services shall be included with and is in addition to the rates and charges of all carriers and all other agencies selected by Mercury to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by Mercury from carriers, insurers, and others in connection with the shipment. On ocean exports, upon request, Mercury 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 Mercury, upon recovery by Mercury, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
24.Severability. In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
25.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 State of Delaware without giving consideration to principles of conflict of law.
Customer and Mercury
(a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of Delaware;
(b) agree that any action relating to the services performed by Mercury, 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.