TERMS AND CONDITIONS OF SERVICE
Rev. A These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other documents(s) shall govern those services.
1. Definitions
(a) "Company" shall mean SPEEDMARK TRANSPORTATION, INC., its subsidiaries, related companies, agents and/or representatives;
(b) "Customer" shall mean the person for which the Company is rendering service, as well as its agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper's agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
(c) "Documentation" shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) "Ocean Transportation Intermediaries" ("OTI") shall include an "ocean freight forwarder" and a "non-vessel operating carrier";
(e) "Third parties" shall include, but not be limited to, the following: "carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise."
2. Company as Agent
The Company acts as the "agent" of the Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with Government Agencies: as to all other services, Company acts as an independent contractor.
3. Limitation of Actions
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within ninety (90) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air transportation, within two (2) years from the date of the loss;
(iii) For claims arising out of the preparation and/or submission of an import entry(s), within seventy-five (75) days from the date of liquidation of the entry(s);
(iv) For any and all other claims of any other type, within two (2) years from the date of the loss or damage.
4. 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, Company 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 the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company 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; 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, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding.
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. 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 the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer's behalf;
(b) In preparing and submitting customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer's failure to disclose information or any incorrect or false statement by the Customer upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
7. Declaring Higher Value to Third Parties.
Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefor; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company'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.
8. Insurance.
Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer's behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance
9. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
(b) Subject to (d) below, Customer agrees that in connection with any and all services performed by the Company, the Company 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 the Company shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (c) above, the Company's liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to customs brokerage, $50.00 per shipment or transaction; or
(ii) where the claim arises from activities relating to "Customs business," $50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
(e) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages.
10. Advancing Money.
All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to Customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold Harmless.
The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability arising from the importation or exportation of Customer’s merchandise and/or any conduct of the Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorneys’ fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
12. C.O.D. or Cash Collect Shipments.
Company shall use reasonable care regarding written instructions relating to "Cash/Collect" or "Deliver (C.O.D.)" shipments, bank drafts, cashier's and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
13. Costs of Collection.
In any dispute involving monies owed to Company, the Company 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 Company.
14. General Lien and Right to Sell Customer's Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company's actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company's rights and/or the exercise of such lien.
(c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
15. No Duty to Maintain Records for Customer.
Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC, 1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a "recordkeeper" or "recordkeeping agent" for Customer.
16. Obtaining Binding Rulings, Filing Protests, etc.
Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
17. Preparation and Issuance of Bills of Lading.
Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight supplied by Customer.
18. No Modification or Amendment Unless Written.
These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. Compensation of Company.
The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorneys’ fees.
20. 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.
21. Governing Law; Consent to Jurisdiction and Venue.
These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of California without giving consideration to principles of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of California;
(b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it, and
(d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
IATA International Air Way Bill
The following Conditions of Contract and Notices be included on an Air Waybill.
I. NOTICE APPEARING ON THE FACE OF THE AIR WAYBILL
It is agreed that the goods described herein are accepted in apparent good order and
condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT
ON THE REVERSE HEREOF. ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS
INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY
INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT
THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE
CARRIER DEEMS APPROPRIATE. THE SHIPPER’S ATTENTION IS DRAWN TO THE
NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY. Shipper may increase such
limitation of liability by declaring a higher value for carriage and paying a supplemental charge
if required.
II. CONDITIONS OF CONTRACT ON REVERSE SIDE OF THE
AIR WAYBILL
NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY
If the carriage involves an ultimate destination or stop in a country other than the country of
departure, the Montreal Convention or the Warsaw Convention may be applicable to the
liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier's limitation of
liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a
higher value is declared.
CONDITIONS OF CONTRACT
1. In this contract and the Notices appearing hereon:
CARRIER includes the air carrier issuing this air waybill and all carriers that carry or undertake
to carry the cargo or perform any other services related to such carriage.
SPECIAL DRAWING RIGHT (SDR) is a Special Drawing Right as defined by the International
Monetary Fund.
WARSAW CONVENTION means whichever of the following instruments is applicable to the
contract of carriage:
the Convention for the Unification of Certain Rules Relating to International Carriage by Air,
signed at Warsaw, 12 October 1929;
that Convention as amended at The Hague on 28 September 1955;
that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4
(1975) as the case may be.
MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for
International Carriage by Air, done at Montreal on 28 May 1999.
2./2.1 Carriage is subject to the rules relating to liability established by the Warsaw
Convention or the Montreal Convention unless such carriage is not “international carriage” as
defined by the applicable Conventions.
2.2 To the extent not in conflict with the foregoing, carriage and other related services
performed by each Carrier are subject to:
2.2.1 applicable laws and government regulations;
2.2.2 provisions contained in the air waybill, Carrier’s conditions of carriage and related rules,
regulations, and timetables (but not the times of departure and arrival stated therein) and
applicable tariffs of such Carrier, which are made part hereof, and which may be inspected at
any airports or other cargo sales offices from which it operates regular services. When
carriage is to/from the USA, the shipper and the consignee are entitled, upon request, to
receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage
include, but are not limited to:
2.2.2.1 limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or
perishable goods;
2.2.2.2 claims restrictions, including time periods within which shippers or consignees must
file a claim or bring an action against the Carrier for its acts or omissions, or those
of its agents;
2.2.2.3 rights, if any, of the Carrier to change the terms of the contract;
2.2.2.4 rules about Carrier’s right to refuse to carry;
2.2.2.5 rights of the Carrier and limitations concerning delay or failure to perform service,
including schedule changes, substitution of alternate Carrier or aircraft and
rerouting.
3. The agreed stopping places (which may be altered by Carrier in case of necessity) are
those places, except the place of departure and place of destination, set forth on the face
hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage
to be performed hereunder by several successive Carriers is regarded as a single operation.
4. For carriage to which the Montreal Convention does not apply, Carrier’s liability
limitation for cargo lost, damaged or delayed shall be 19 SDRs per kilogram unless a greater
per kilogram monetary limit is provided in any applicable Convention or in Carrier’s tariffs or
general conditions of carriage.
5./5.1 Except when the Carrier has extended credit to the consignee without the written
consent of the shipper, the shipper guarantees payment of all charges for the carriage due in
accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws
(including national laws implementing the Warsaw Convention and the Montreal Convention),
government regulations, orders and requirements.
5.2 When no part of the consignment is delivered, a claim with respect to such consignment
will be considered even though transportation charges thereon are unpaid.
6./6.1 For cargo accepted for carriage, the Warsaw Convention and the Montreal Convention
permit shipper to increase the limitation of liability by declaring a higher value for carriage and
paying a supplemental charge if required.
6.2 In carriage to which neither the Warsaw Convention nor the Montreal Convention
applies Carrier shall, in accordance with the procedures set forth in its general conditions of
carriage and applicable tariffs, permit shipper to increase the limitation of liability by declaring
a higher value for carriage and paying a supplemental charge if so required.
7./7.1 In cases of loss of, damage or delay to part of the cargo, the weight to be taken into
account in determining Carrier’s limit of liability shall be only the weight of the package or
packages concerned.
7.2 Notwithstanding any other provisions, for “foreign air transportation” as defined by the
U.S. Transportation Code:
7.2.1 in the case of loss of, damage or delay to a shipment, the weight to be used in
determining Carrier’s limit of liability shall be the weight which is used to determine the charge
for carriage of such shipment; and
7.2.2 in the case of loss of, damage or delay to a part of a shipment, the shipment weight in
7.2.1 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.
8. Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s
agents, employees, and representatives and to any person whose aircraft or equipment is
used by Carrier for carriage and such person’s agents, employees and representatives.
9. Carrier undertakes to complete the carriage with reasonable dispatch. Where
permitted by applicable laws, tariffs and government regulations, Carrier may use alternative
carriers, aircraft or modes of transport without notice but with due regard to the interests of the
shipper. Carrier is authorized by the shipper to select the routing and all intermediate stopping
places that it deems appropriate or to change or deviate from the routing shown on the face
hereof.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima
facie evidence that the cargo has been delivered in good condition and in accordance with the
contract of carriage.
10.1 In the case of loss of, damage or delay to cargo a written complaint must be made to
Carrier by the person entitled to delivery. Such complaint must be made:
10.1.1 in the case of damage to the cargo, immediately after discovery of the damage and at
the latest within 14 days from the date of receipt of the cargo;
10.1.2 in the case of delay, within 21 days from the date on which the cargo was placed at the
disposal of the person entitled to delivery.
10.1.3 in the case of non-delivery of the cargo, within 120 days from the date of issue of the
air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of
the cargo for transportation by the Carrier.
10.2 Such complaint may be made to the Carrier whose air waybill was used, or to the first
Carrier or to the last Carrier or to the Carrier, which performed the carriage during which the
loss, damage or delay took place.
10.3 Unless a written complaint is made within the time limits specified in 10.1 no action
may be brought against Carrier.
10.4 Any rights to damages against Carrier shall be extinguished unless an action is brought
within two years from the date of arrival at the destination, or from the date on which the
aircraft ought to have arrived, or from the date on which the carriage stopped.
11. Shipper shall comply with all applicable laws and government regulations of any
country to or from which the cargo may be carried, including those relating to the packing,
carriage or delivery of the cargo, and shall furnish such information and attach such
documents to the air waybill as may be necessary to comply with such laws and regulations.
Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to
shipper’s failure to comply with this provision.
12. No agent, employee or representative of Carrier has authority to alter, modify or waive
any provisions of this contract.
WAREHOUSE RECEIPT TERMS AND CONDITIONS
D E F I N I T I O N S : The terms "the warehouseman" and "the warehouse company" mean SPEEDMARK TRANSPORTATION, INC. . The term "depositor" means the shipper, consignee, owner of the goods or its agents, including, but not limited to, persons who physically tender the goods to the warehouseman at the warehouseman's premises, motor carriers, motor freight brokers and draymen and/or any entity that places or maintains a chassis/trailer pool at the warehouseman’s facility identified in this warehouse receipt. The term “equipment” means any chassis, container, trailer, or tractor. The term "storage" means the whole of the operations and services undertaken by the warehouseman with respect to the goods. The term “goods” means the merchandise, cargo, property, or freight tendered for storage by the depositor and identified on the face of this warehouse receipt. The term "yard storage" means the placement of containers or trailers, with or without tractors, empty or loaded with merchandise, cargo, property, or freight, secured or unsecured, in the yard of the warehouseman for the benefit of the depositor and/or the depositor’s goods.
ACCEPTANCE - Sec. 1
(a) This contract and/or rate quotation, including accessorial charges endorsed on or attached hereto, must be accepted prior to tender of the goods to the warehouseman by signature of the depositor on the reverse side of the contract. In the absence of written acceptance, the act of tendering goods described herein for storage or other services by the warehouseman shall constitute such acceptance by the depositor.
(b)In the event that goods tendered for storage or other services do not conform to the description contained herein, or conforming goods are tendered after 30 days from the proposal date without prior written acceptance by the depositor as provided in sub-paragraph (a) of this section, the warehouseman may refuse to accept such goods. If the warehouseman accepts such goods, the depositor agrees to rates and charges as may be assigned and invoiced by the warehouseman and to all terms of this contract.
(c) Depositor agrees and warrants that the terms and conditions of this warehouse receipt shall apply to any and all instances of future storage by the depositor where the warehouseman has issued no warehouse receipt.
SHIPPING - Sec. 2
The depositor shall not designate the warehouseman to be the consignee for any goods under any bill of lading, waybill, air waybill, or any other transportation contract. If, in violation of this agreement, goods are shipped to the warehouseman as named consignee, the depositor agrees to notify carrier in writing prior to such shipment, with copy of such notice to the warehouseman, that warehouseman named as consignee is a warehouseman and has no beneficial title or interest in such goods and the depositor further agrees to indemnify and hold harmless the warehouseman from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention or charges of any nature, in connection with goods so shipped. The depositor further agrees that if it fails to notify carrier as required by the preceding sentence, the warehouseman shall have the right to refuse such goods and shall not be liable or responsible for any loss, injury or damage of any nature to, or related to, such goods.
TENDER FOR STORAGE - Sec. 3
All goods shall be delivered at the warehouse properly marked and packaged for handling. At the time of such delivery, or prior thereto, the depositor shall furnish to the warehouseman a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.
STORAGE PERIOD AND CHARGES - Sec. 4
(a)All charges for storage are per package or other agreed unit, per month.
(b)Storage charges commence upon the date that warehouseman accepts care, custody and control of the goods, regardless of the unloading date or the date of issue of a warehouse receipt.
(c)Except as provided in sub-paragraph (d) of this section, a full month’s storage charge will apply on all goods received between the first and the fifteenth, inclusive, of a calendar month; one-half month’s storage charge will apply on all goods received between the sixteenth and the last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
(d)When mutually agreed by the warehouseman and the depositor, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS AND LIEN BY WAREHOUSEMAN - Sec. 5
(a)Instructions to the warehouseman to transfer goods are not effective until delivered to and accepted by the warehouseman, and all charges up to the time transfer is made are chargeable to the depositor of record. If a transfer involves rehandling the goods, such rehandling will be subject to a charge. When goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer.
(b)The warehouseman reserves the right to move, at his expense, fourteen days after notice is sent by certified or registered mail to the depositor of record or to the last known holder of the warehouse receipt, any goods in storage from the warehouse in which they may be stored to any other of his warehouses. But if such depositor or holder takes delivery of his goods in lieu of transfer, no storage charge shall be made for the current storage month. The warehouseman will store the goods at, and may without notice move the goods within and between, any one or more of the warehouse buildings that comprise the warehouse complex identified on the front of this warehouse receipt.
(c)The warehouseman may, upon written notice to the depositor of record and any other person known by the warehouseman to claim an interest in the goods, require the removal of any goods by the end of the next succeeding storage month. Such notice shall be given to the last known place of business or residence of the person to be notified. If goods are not removed before the end of the next succeeding storage month, the warehouseman may sell them in accordance with applicable law.
(d)If the warehouseman in good faith believes that the goods are about to deteriorate or decline in value to less than the amount of the warehouseman’s lien before the end of the next succeeding storage month, the warehouseman may specify in the notification any reasonable shorter time for removal of the goods and in case the goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
(e)If, as a result of a quality or condition of the goods of which the warehouseman had no notice at the time of deposit, the goods are a hazard to other property or to the warehouse or to any persons, the warehouseman may sell the goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the goods. If the warehouseman after a reasonable effort is unable to sell the goods, he may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale, or return of the goods, the warehouseman may remove the goods from the warehouse and shall incur no liability by reason of such removal.
(f)The warehouseman claims a lien for all lawful charges for storage and preservation of the goods and/or equipment; also, for money advanced, interest, insurance, transportation, labor, weighing, cooper ing and other charges and expenses in relation to such goods, and for the balance on any other accounts that may be due. The warehouseman also claims a lien under maritime law, if at any time these goods were subject to the SPEEDMARK TRANSPORTATION, INC. bill of lading, and SPEEDMARK TRANSPORTATION, INC.’s invoice “Terms & Conditions of Service.” The warehouseman reserves the right to exercise its lien rights under the terms of any applicable law and/or agreement between the depositor and the warehouseman.
(G)THE GOODS COVERED BY THIS WAREHOUSE RECEIPT HAVE NOT BEEN INSURED BY THE WAREHOUSEMAN FOR THE BENEFIT OF THE DEPOSITOR AGAINST FIRE OR ANY OTHER CASUALTY. PROCUREMENT OF SUCH INSURANCE IS THE SOLE RESPONSIBILITY OF THE DEPOSITOR, AT THE DEPOSITOR’S SOLE DISCRETION AND EXPENSE.
HANDLING - Sec. 6
(a)The handling charge covers the ordinary labor involved in receiving goods at the warehouse door, placing goods in storage, and returning goods to the warehouse door. Handling charges are due and payable on receipt of goods.
(b)Unless otherwise agreed, labor for unloading and loading goods will be subject to a charge. Additional expenses incurred by the warehouseman in receiving and handling damaged goods, and additional expenses incurred in unloading from or loading into cars or other vehicles not at the warehouse door will be charged to the depositor.
(c)Labor and materials used in loading rail cars or other vehicles are chargeable to the depositor.
(d)When goods are ordered out in quantities less than those in which received, the warehouseman may make an additional charge for each order or each item of an order.
(e)The warehouseman shall not be liable for demurrage or detention, delays in unloading inbound cars, trailers, or other containers, or delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless the warehouseman has failed to exercise reasonable care.
DELIVERY REQUIREMENTS - Sec. 7
(a)No goods shall be delivered or transferred except upon receipt by the warehouseman of complete written instructions. Written instructions shall include, but are not limited to, facsimile transmissions, EDI, e-mail, or similar communications, provided the warehouseman has no liability when relying on the information contained in the communication as received. However, when no warehouse receipt is outstanding, goods may be delivered upon instruction by telephone, in accordance with a prior written authorization, but the warehouseman shall not be responsible for loss or error occasioned thereby.
(b)When goods are ordered out, a reasonable time shall be given the warehouseman to carry out instructions, and if he is unable to do so because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond the warehouseman’s control, or because of the loss or destruction of goods for which warehouseman is not liable, or because of any other excuse or justification provided by law, the warehouseman shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
EXTRA SERVICES/SPECIAL SERVICES - Sec. 8
(a)Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor.
(b)Special services requested by depositor including, but not limited to, compiling of special stock statements, reporting marked weights, serial numbers or other data from packages, physical checking of goods, and handling transit billing will be subject to a charge.
(c)Dunnage, bracing, packing materials or other special supplies may be provided to the depositor at a charge in addition to the warehouseman’s cost.
(d)By prior arrangement, goods may be received or delivered other than during usual business hours, subject to a charge.
(e)Communication expenses, including postage, teletype, telegram, or telephone will be charged to the depositor if such expenses concern more than normal inventory reporting or if, at the request of the depositor, communications are made by other than regular United States mail.
BONDED STORAGE - Sec. 9
(a)A charge in addition to regular rates will be made for merchandise in bond.
(b)Where a warehouse receipt covers goods in U.S. Customs bond, such receipt shall be void upon the termination of the storage period fixed by law.
MINIMUM CHARGES - Sec. 10
(a)Goods are subject to a minimum handling charge per lot and a minimum storage charge per lot per month. When a warehouse receipt covers more than one lot or when a lot is in assortment, the goods will be subject to a minimum charge per mark, brand, or variety.
(b)A minimum monthly charge to one account for storage and/or handling will be made. This charge will apply also to each account when one customer has several accounts, each requiring separate records and billing.
LIABILITY AND LIMITATION OF DAMAGES - Sec. 11
(a)THE WAREHOUSEMAN SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED, HOWEVER CAUSED, UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY THE WAREHOUSEMAN TO EXERCISE REASONABLE CARE AND THE WAREHOUSEMAN IS NOT LIABLE FOR DAMAGES THAT COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
(b)GOODS ARE NOT INSURED BY THE WAREHOUSEMAN AGAINST LOSS OR INJURY, HOWEVER CAUSED.
(c)THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO $.50 PER LB., PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THIS CONTRACT , AS PROVIDED IN SECTION 1, BE INCREASED UPON DEPOSITOR’S WRITTEN REQUEST ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT AN ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION.
(d)WHERE LOSS OR INJURY OCCURS TO STORED GOODS FOR WHICH THE WAREHOUSEMAN IS NOT LIABLE, THE DEPOSITOR SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEANUP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THE GOODS.
ARBITRATION - Sec. 12
(a)The warehouseman and depositor, on behalf of itself and its heirs, assigns, and/or subrogees, agree that any dispute arising under this warehouse receipt shall be submitted to the American Arbitration Association, under its rules then in force. The parties agree to be bound by the arbitration decision and judgment upon such decision may be entered in any federal or state court of competent jurisdiction in the County of Los Angeles. Any arbitration shall be held in the City of Los Angeles.
(b)The depositor expressly agrees that the time for commencement of such arbitration proceedings by the depositor against the warehouseman shall be limited to 9 months after date of delivery by the warehouseman or within 9 months after the depositor of record or the last known holder of a warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter—all proceedings commenced thereafter being time-barred, however founded.
NOTICE OF CLAIM AND COMMENCEMENT OF ARBITRATION - Sec. 13
(a)Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after the depositor of record or the last known holder of a warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
(b)Neither the depositor nor any other person may commence an arbitration against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in sub-paragraph (a) of this section.
(c)When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a warehouse receipt. Time limitations for presentation of claim in writing and commencing an arbitration after notice begin on the date of mailing of such notice by the warehouseman.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES - Sec. 14
The warehouseman shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
LIABILITY FOR MIS-SHIPMENT - Sec. 15
If the warehouseman negligently mis-ships goods, the warehouseman shall pay the reasonable transportation charges incurred to return the mis-shipped goods to the warehouse. If the consignee fails to return the goods, the warehouseman’s maximum liability shall be for the lost or damaged goods, as specified in Section 11 above, and the warehouseman shall have no liability for damages due to the consignee’s acceptance or use of the goods, whether such goods be those of the depositor or another.
MYSTERIOUS DISAPPEARANCE - Sec. 16
The warehouseman shall not be liable for loss of goods due to inventory shortage or shortage, or unexplained or mysterious disappearance of goods, unless the depositor establishes that such loss occurred because of the warehouseman’s failure to exercise the care required of warehouseman under Section 11 above. Any presumption of conversion imposed by law shall not apply to such loss, and a claim by the depositor of conversion must be established by affirmative evidence that the warehouseman converted the goods to the warehouseman’s own use.
RIGHT TO STORE GOODS - Sec. 17
The depositor represents and warrants that the depositor is lawfully possessed of the goods and has the right and authority to store them with the warehouseman. The depositor agrees to indemnify and hold harmless the warehouseman from all loss, cost and expense, including reasonable attorneys’ fees that warehouseman pays or incurs as a result of any dispute or litigation, whether instituted by the warehouseman or others, respecting depositor’s right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to the warehouseman’s lien.
ACCURATE INFORMATION - Sec. 18
The depositor will provide the warehouseman with information concerning the stored goods that is accurate, complete, and sufficient to allow the warehouseman to comply with all laws and regulations concerning the storage, handling, and transporting of the goods. The depositor will indemnify and hold the warehouseman harmless from all loss, cost, penalty and expense, including reasonable attorneys’ fees that the warehouseman pays or incurs as a result of depositor failing to fully discharge this obligation.
SEVERABILITY AND WAIVER - Sec. 19
(a)If any provision of this warehouse receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree, or judgment of a court of competent jurisdiction, the remaining provisions of this warehouse receipt shall not be affected thereby but shall remain in full force and effect.
(b)The warehouseman’s failure to require strict compliance with any provision of the warehouse receipt shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this warehouse receipt.
(c)The provisions of this warehouse receipt shall be binding upon the depositor’s heirs, executors, successors and assigns. Those provisions contain the sole agreement governing goods stored with the warehouseman, and they cannot be modified except by a writing signed by the warehouseman.
YARD STORAGE - Sec. 20
The liability of the warehouseman for any yard storage of containers or trailers, whether loaded or empty, secured or unsecured, shall be subject to Sections 11, 12, and 13 of this warehouse receipt. By tendering containers or trailers to the warehouseman for yard storage, the depositor agrees and warrants that the warehouseman's premises are deemed to have a reasonable level of security for the yard storage.
CONSTRUCTION OF TERMS AND VENUE - Sec. 21
The terms and conditions of this warehouse receipt shall be construed and interpreted under the laws of the State of California, except when a law of the United States, convention, treaty, or other law is otherwise compulsorily applicable.
Rev. A
NON-NEGOTIABLE OCEAN BILL OF LADING TERMS AND CONDITIONS OF CARRIAGE
Definitions
“Cargo” means the goods, property, freight and or merchandise described on the face hereof, whether packed in Containers or not,and whether carried on or under deck and includes any Container not supplied by or on behalf of the Carrier. “Carriage” means thewhole of the operations and services undertaken by the Carrier or a Subcontractor with respect to the Cargo. “Carrier” means SPEEDMARK TRANSPORTATION, INC., on whose behalf this Non-Negotiable Bill of Lading has been issued as indicated on the face hereof. “Container” includes any container, trailer, transportable tank, flat rack or pallet or any similar article used for the transportation of cargo. “Dangerous or Hazardous Goods” includes any Cargo classified or described as dangerous in the Dangerous Goods code issued by the International Maritime Organization (the “IMO CODE”) or in the applicable tariff and any Cargo that could present or could be likely to present any hazard to the conveyance in which it is carried or to other Cargo or property or to any person. “Holder” means any person in possession of this Non-Negotiable Bill of Lading to whom the title in the Cargo has passed upon or by reason of the consignment of the Cargo or the endorsement of this Non-Negotiable Bill of Lading or otherwise. “Merchant” includes the consignor, shipper, Holder, consignee, the receiver of the Cargo, any person, including any corporation, company or other legal entity, owning or entitled to the possession of the Cargo or this Non-Negotiable Bill of Lading or anyone acting on behalf of any such person. “Multi-ModalTransportation” means the Carriage of Cargo under this Non-Negotiable Bill of Lading by a Vessel and one or more inland carriers for a single freight charge to the Merchant. “Non-Negotiable” means that this Bill of Lading is not a document of title, unless the words “TO ORDER” appear in the consignee box on the face hereof. “Subcontractor” shall include direct and indirect subcontractors of the Carrier and their respective servants and agents, including, but not limited to, warehousemen, stevedores, container freight stations, and motor truck carriers. “Vessel” includes the vessel set forth on the front page hereof, as well as any vessel, ship, craft, lighter or other means of transport, which is or shall be substituted, in whole or in part, for the vessel set forth on the front face hereof.
1. Applicability
These Terms and Conditions shall apply to all modes of Carriage utilized to transport the Cargo, and the Carrier’s responsibility to the Merchant for the Cargo shall terminate at the time of delivery under Clause 12.
2. Issuance of this Non-Negotiable Bill of Lading
2.1. By issuance of this Non-Negotiable Bill of Lading, the Carrier undertakes to perform and/or in its own name to procure the performance of the entire Carriage, from the place at which the Carrier takes charge of the Cargo (place of receipt evidenced in this Non-Negotiable Bill of Lading) to the place of delivery designated in this Non-Negotiable Bill of Lading;
2.2.The information in this Non-Negotiable Bill of Lading shall be prima facie evidence of the taking in charge by the Carrier of the Cargo as described by such information unless a contrary indication, such as "shipper's weight, load and count", "shipper-packed container" or similar expressions, has been made in the printed text or written on this Non-Negotiable Bill of Lading.
3. Agreement to Terms and Conditions
The Merchant warrants that it is authorized to arrange for the Carriage of the Cargo and accepts the Terms and Conditions of this Non-Negotiable Bill of Lading.
4. Dangerous or Hazardous Goods and Indemnity
4.1. The Merchant shall comply with mandatory rules according to the applicable national law or by reason of international convention relating to the Carriage of goods of a dangerous or hazardous nature, and shall in any case inform the Carrier in writing of the exact nature of the danger or hazard, before Cargo of a dangerous or hazardous nature is taken in charge by the Carrier and indicate to it the precautions to be taken.
4.2. If the Merchant fails to provide such information and the Carrier is unaware of the dangerous or hazardous nature of the Cargo and the necessary precautions to be taken, and if, at any time, it is deemed to be a hazard to life or property, the Cargo may at any place be unloaded, destroyed or rendered harmless, as circumstances may require, without compensation. The Merchant shall indemnify the Carrier against all loss, damage, liability, or expense arising out of such dangerous or hazardous Cargo being taken in charge, or its Carriage, or of any service incidental thereto. The burden of proving that the Carrier knew the exact nature of the danger constituted by the Carriage of the said Cargo shall be on the Merchant.
4.3. If any Cargo shall become a danger to life or property, it may in like manner be unloaded or landed at any place or destroyed or rendered harmless. If such danger was not caused by the fault and neglect of the Carrier, it shall have no liability and the Merchant shall indemnify the Carrier against all loss, damage, liability and expense arising therefrom.
5. Description of Cargo and Merchant's Packing and Inspection
5.1. The Merchant shall be deemed to have guaranteed to the Carrier the accuracy, at the time the Cargo was taken into the charge of the Carrier, of all particulars relating to the general nature of the Cargo, including, without limitation, its marks, number, weight, volume and quantity and, if applicable, the dangerous character of the Cargo, as furnished by the Merchant or on its behalf for insertion on the Non-Negotiable Bill of Lading. The Merchant shall indemnify the Carrier against all loss, damage and expense resulting from any inaccuracy or inadequacy of such particulars. The Merchant shall remain liable even if the Non-Negotiable Bill of Lading has been transferred by the Merchant.
5.2. a) The Merchant agrees that it shall inspect the Container before loading the Cargo and shall warrant and certify to the Carrier that the Container is in satisfactory condition and fit for the stowage of the Cargo. b) The Carrier shall not be liable for any damage, delay, expense or loss of the Cargo caused by defective or insufficient packing of Cargo or by inadequate loading or packing within Containers or other transport units when such loading or packing has been performed by the Merchant or on its behalf by a person other than the Carrier. The Carrier shall not be liable for any damage, delay, expense or loss of the Cargo caused by the defect or unsuitability of the Containers or other transport units supplied by the Merchant, or if supplied by the Carrier if a defect or unsuitability of the Container or other transport unit would have been apparent upon reasonable inspection by the Merchant. The Merchant shall indemnify the Carrier against all loss, damage, liability and expense so caused.
6. Carrier's Liability
6.1. Arrival times are not guaranteed by the Carrier.
6.2. If the Cargo has not been delivered within ninety days of the anticipated date of delivery, the Cargo shall be deemed lost, in the absence of evidence to the contrary.
6.3. When the Carrier establishes that damage, delay, expense or loss of the Cargo could be attributed to one or more causes or events specified in a - e of the present clause, it shall be presumed that it was so caused, always provided, however, that the claimant shall be entitled to prove that the loss or damage was not, in fact, caused wholly or partly by one or more of such causes or events:
a) an act or omission of the Merchant, or person other than the Carrier acting on behalf of the Merchant or from which the Carrier took the Cargo in its charge;
b) insufficiency or defective condition of the packaging or marks and/or numbers;
c) handling, loading, stowage or unloading of the Cargo by the Merchant or any person acting on behalf of the Merchant;
d) inherent vice of the Cargo;
e) strike, lockout, stoppage or restraint of labor.
6.4. Notwithstanding Clauses 6.2 and 6.3 the Carrier shall not be liable for damage, delay, expense or loss of the Cargo with respect to Cargo carried by sea, inland waterways, motor carrier or rail when such damage, delay, expense or loss of the Cargo has been caused by: a) act, neglect, or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship; b) fire, unless caused by the actual fault or privity of the carrier, however, always provided that whenever loss or damage has resulted from unseaworthiness of the ship, the Carrier can prove that due diligence has been exercised to make the ship seaworthy at the commencement of the voyage.
7. Paramount Clauses
7.1. These Terms and Conditions shall only take effect to the extent that they are not contrary to international conventions or national law compulsorily applicable to the contract evidenced by this Non-Negotiable Bill of Lading.
7.2. The Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels 25th August 1924, or in those countries where they are already in force the Hague-Visby Rules contained in the Protocol of Brussels, dated 23rd February 1968, as enacted in the country of shipment, shall apply to all Carriage of Cargo by sea and also to the Carriage of Cargo by inland waterways, and such provisions shall apply to all Cargo whether carried on deck or under deck.
7.3. The United States of America Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. section 1300 et seq., shall apply to the carriage of the Cargo by sea, whether on deck or under deck, if compulsorily applicable to this Non-Negotiable Bill of Lading or would be applicable but for the goods being carried on deck in accordance with a statement on this Non-Negotiable Bill of Lading.
7.4. Merchant expressly agrees to a waiver of the United States of America Carmack Amendment, (“Carmack”) 49 U.S.C. sections 14706 and/or 11706 liability scheme if Carmack is compulsorily applicable to any stage of the Multi-Modal Transportation.
8. Limitation of Carrier's Liability
8.1. The value of Cargo lost, damaged, or delayed shall be determined by the commercial invoice value of the Cargo at the port of exportation or the entered value declared to the Customs officials at the port of importation, whichever is less.
8.2. If the Carrier is liable in respect of loss following from delay in delivery, or special, or consequential loss or damage other than loss of or damage to the goods, the liability of the Carrier shall be limited to an amount not exceeding the equivalent of twice the freight charges for the Carriage under this Non-Negotiable Bill of Lading.
8.3. When an ocean container or trailer or similar conveyance is loaded with more than one package or unit, such ocean container or trailer or similar conveyance shall be deemed the package or unit.
8.4. When it cannot be ascertained at what stage of the Multi-Modal Transportation the damage, delay, expense or loss of the Cargo occurred the damage shall be presumed to have occurred before loading on the vessel or after discharge from the vessel and unless the nature and value of the Cargo have been declared by the Merchant and inserted in this Non-Negotiable Bill of Lading, and the ad valorem freight rate paid, the liability of the Carrier shall not exceed U.S.$500 per package or unit or U.S.$0.50 per lbs. of gross weight of the Cargo lost, damaged or delayed, whichever is less.
8.5. When the damage, delay, expense, or loss of the Cargo occurred during a particular stage of the Multi-Modal Transportation, in respect of which an applicable international convention or mandatory national law would have provided another limit of liability if a separate contract of carriage had been made for that particular stage of transport, then the limit of the Carrier's liability for such loss or damage shall be determined by reference to the provisions of such international convention or mandatory national law.
8.6. If the Carrier selects a motor or rail carrier to perform any portion of the Multi-Modal Transportation in the United States of America, the Merchant agrees to a waiver of Carmack liability and any time-for-suit provisions to the extent Carmack may apply. Unless the nature and value of the Cargo have been declared by the Merchant and inserted in this Non-Negotiable Bill of Lading, and the ad valorem freight rate paid, the liability of the Carrier shall not exceed U.S.$500 per package or unit or U.S.$0.50 per lbs. of gross weight of the Cargo lost, damaged or delayed, whichever is less.
8.7. Subject to the provisions 8.1 through 8.6 the Carrier shall in no event be or become liable for any loss of damage to the goods in an amount exceeding the equivalent of 666.67 SDR per package or unit or 2 SDR per kilogram of gross weight of the goods lost or damaged, whichever is the higher, unless the nature and value of the goods shall have been declared by the Merchant and accepted by the Carrier before the goods have been taken in his charge, or the ad valorem freight rate paid, and such value is stated in the Non-Negotiable Bill of Lading by the Merchant, then such declared value shall be the limit.
8.8. Subject to the provisions 8.1 through 8.8 if the Multi-Modal Transport does not, according to the contract, include carriage of goods by sea or by inland waterways, the liability of the Carrier shall be limited to an amount not exceeding 8.33 SDR per kilogram of gross weight of the goods lost or damaged.
8.9. The aggregate liability of Carrier shall not exceed the limits of liability for total loss of the goods.
9. Applicability to All Actions
These Terms and Conditions apply to all claims against the Carrier relating to the performance of the contract evidenced by this Non-Negotiable Bill of Lading, whether the claim is founded in contract or in tort, including, but not limited to, claims for indemnity and contribution.
10. Liability of Subcontractors, Servants, Agents, or Other Persons
10.1. These Terms and Conditions apply whenever claims relating to the performance of this Non-Negotiable Bill of Lading are made against any Subcontractor, servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract of carriage, whether such claims are founded in contract or in tort, including, but not limited to, claims for indemnity and contribution and the aggregate liability of the Carrier and of such Subcontractors, servants, agents or other persons shall not exceed the limits set forth in Clause 8.
10.2. In entering into this contract as evidenced by this Non-Negotiable Bill of Lading, the Carrier, to the extent of these provisions, does not only act on its own behalf, but also as agent for the class of persons identified in Clause 10.1, and such persons shall to that extent be or be deemed to be parties to this contract.
10.3. If the loss of or damage to the Cargo resulted from an intentional act or omission of the class of persons identified in Clause
10.1, done with intent to cause damage, or recklessly and with knowledge that damage would probably result, such Subcontractor,
servant, agent or other person shall not be entitled to the benefit of the limitation of liability set forth in Clause 8.
10.4. The aggregate of the amounts recoverable from the Carrier and the class of persons identified in Clause 10.1 shall not exceed the limits provided for in these Terms and Conditions.
11. Method and Route of Transportation
Without notice to the Merchant, the Carrier has the liberty to carry the Cargo on or under deck and to choose or substitute the means, route, and procedure to be followed in the handling, stowage, storage, and transportation of the Cargo.
12. Delivery
12.1. The Cargo shall be deemed to be delivered when it has been delivered to or placed at the disposal of the Merchant or its agent in accordance with this Non-Negotiable Bill of Lading, or when the Cargo has been delivered to any authority or other party to which, pursuant to the law or regulation applicable at the place of delivery, the Cargo must be delivered, or such other place at which the Carrier is entitled to call upon the Merchant to take delivery.
12.2. The Carrier shall also be entitled to store the Cargo at the sole risk of the Merchant, and the Carrier's liability shall cease upon the Carrier’s tender/delivery of the Cargo to the appointed warehouse or storage facility. The cost of such storage shall be paid, upon demand, by the Merchant to the Carrier.
12.3. If at any time the Carriage under this Non-Negotiable Bill of Lading is or is likely to be affected by any hindrance or risk of any kind (including the condition of the Cargo) not arising from any fault or neglect of the Carrier or a Subcontractor that cannot be avoided by the exercise of reasonable diligence, the Carrier may: abandon the Carriage of the Cargo under this Non-Negotiable Bill of Lading and, where reasonably practicable, place the Cargo or any part of it at the Merchant's disposal at any place that the Carrier may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of the Carrier in respect of such Cargo shall cease. In any event, the Carrier shall be entitled to full freight under this Non-Negotiable Bill of Lading and the Merchant shall pay any additional costs arising out of the aforementioned circumstances.
13. Freight Charges and Expenses
13.1. Freight charges shall be paid without any reduction or deferment on account of any claim, counterclaim or set-off, whether prepaid or payable at destination. Freight charges shall be deemed earned by the Carrier upon its receipt of the Cargo. Earned freight charges are non-refundable.
13.2. Freight charges and all other amounts set forth in this Non-Negotiable Bill of Lading are to be paid in the currency named in this Non-Negotiable Bill of Lading or, at the Carrier's option, in the currency of the country of origin or destination.
13.3. The Merchant shall reimburse the Carrier for any duties, taxes, demurrage, detention, charges or other expenses in connection with the Cargo.
13.4. The Merchant shall reimburse the Carrier for any costs for deviation or delay or any other increase of costs of whatever nature caused by war, military or warlike actions, epidemics, riots, strikes, government directions or force majeure.
13.5. The Merchant warrants the accuracy of the declaration of contents, weight, measurements or value of the Cargo, but the Carrier has the liberty to have the contents inspected and the weight, measurements or value verified. If on such inspection it is found that the declaration is not correct, it is agreed that a sum equal either to five times the difference between the correct figure and the freight charges, or to double the correct freight charges less the freight charged, whichever sum is less, shall be payable as liquidated damages to the Carrier for its inspection costs and losses of freight charges on other Cargo notwithstanding any other sum having been stated on this Non-Negotiable Bill of Lading as freight charges payable.
13.6. Despite the acceptance by the Carrier of instructions to collect freight charges or other expenses from any other person in respect of the transport under this Non-Negotiable Bill of Lading, the Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason.
14. Lien
14.1. The Carrier shall have a lien on any and all of the Merchant’s property for all advances, claims, costs, freight charges, duties, taxes, demurrage, money due and payable to the Carrier, including any lien and collection related costs. The lien on the Cargo shall survive delivery to the Merchant. Carrier may sell the Cargo privately or by public auction without notice to the Merchant. If on sale of the Cargo the proceeds fail to satisfy the amount due, and the cost and expenses incurred, the Carrier shall be entitled to recover any difference from the Merchant.
14.2. If the Cargo is unclaimed after 30 days from date the Cargo is placed at the disposal of the Merchant, or whenever in the Carrier’s judgment the Cargo will become deteriorated, decayed or worthless, the Carrier may, at its discretion and subject to its lien and without any responsibility attaching to it, sell, abandon, or otherwise dispose of such Cargo solely at the risk and expense of the Merchant.
15. General Average
The Merchant shall indemnify the Carrier in respect of any claims of a General Average nature that may be made on it and shall provide such security as may be required by the Carrier in that connection.
16. Notice
16.1. Unless the Merchant provides written notice to the Carrier of the general nature of any loss or damage to the Cargo at the time that the Carrier delivers the Cargo to the Merchant in accordance with Clause 12, such delivery by the Carrier is prima facie evidence of the Carrier’s delivery of the Cargo in good order and condition.
16.2. Where the loss or damage is not apparent and/or latent, the same prima facie presumption shall apply if notice in writing is not given within 3 days after the day when the Cargo was delivered to the Merchant in accordance with Clause 12.
17. Time bar
Subject to any compulsorily applicable international convention or national law, the Carrier shall be discharged of all liability unless suit is brought against the Carrier within nine months from the date of delivery or the date on which the Cargo should have been delivered.
18. Partial Invalidity
If any clause or a part thereof is held to be invalid, the validity of this Non-Negotiable Bill of Lading and the remaining clauses or a part thereof shall not be affected.
19. Mandatory Venue, Jurisdiction, and Applicable Law
Merchant agrees that all claims or disputes hereunder or questions arising out of the Carriage of Cargo shall be determined solely in the United States District Court for the Central District of California in Los Angeles, California, to the exclusion of all other courts, and the Merchant and Carrier each agree to submit to the personal jurisdiction of that court; provided, however, where the Vessel operator issues a bill of lading for the transportation of the Cargo that includes a mandatory venue clause for a mandatory venue other than the United States District Count for the Central District of California in Los Angeles, the Merchant expressly agrees to be bound by the mandatory venue clause of the Vessel operator’s bill of lading for any claims, disputes, or questions that the Merchant has against the Carrier and any Subcontractor. Merchant agrees that equity and judicial efficiency require that a single action shall resolve all claims, disputes, or questions arising out of the Carriage of Cargo.