TERMS AND CONDITIONS
REGARDING SERVICES RENDERED BY INTERNATIONAL
WAREHOUSE SERVICES, INC.
THE FOLLOWING TERMS AND CONDITIONS, UPON YOUR ACCEPTANCE AS
PROVIDED HEREIN, SHALL CONSTITUTE A LEGALLY BINDING CONTRACT
BETWEEN YOU AND INTERNATIONAL WAREHOUSE SERVICES, INC., A FLORIDA
CORPORATION ("IWS"). IT IS IMPERATIVE THAT YOU READ THESE
ENTIRE TERMS AND CONDITIONS BEFORE ACCEPTANCE HEREOF. YOU
ALSO HAVE THE RIGHT TO CONSULT AN ATTORNEY PRIOR TO
ACCEPTANCE. IWS DOES NOT GUARANTEE RESULTS OF ANY
KIND OR NATURE IN CONNECTION WITH THE SERVICES BEING PERFORMED BY
IWS HEREUNDER AND PAYMENT IN FULL IS DUE AND PAYABLE TO IWS AS
REQUIRED HEREBY AND YOU AGREE TO PAY THE SAME PURSUANT TO THE
TERMS HEREOF UNDER ALL CIRCUMSTANCES.
These Terms and
Conditions govern your rights, responsibilities and obligations
with IWS in connection with your on-line request to hire IWS to
perform inspection and other services as required by the office of
United States Customs and Border Protection, the United States
Department of Agriculture and/or any other governmental agency (for
purposes hereof, individually and/or collectively, "U.S.
Customs"). In the event of any inconsistency between the
terms, conditions and provisions contained in such on-line request
and these Terms and Conditions, the terms, conditions and
provisions contained in these Terms and Conditions shall govern and
control. These Terms and Conditions shall be strictly
enforced in all respects.
1.
Acceptance.
a.
You understand, acknowledge and agree that You shall be permitted
the use and access to the Services only in strict adherence to
these Terms and Conditions. By selecting the "accept" option
set forth below, you affirm and agree that you have read these
Terms and Conditions, understand and accept these Terms and
Conditions and agree to be bound and adhere to these Terms and
Conditions in all respects. You represent, warrant and
covenant that You are and shall continue to (i) be authorized by
law and otherwise to "accept" these Terms and Conditions, (ii) have
the power to bind Customer to these Terms and Conditions, (iii) be
properly licensed pursuant to all applicable laws, rules and
regulations in effect with respect to these Terms and Conditions to
enter into the transactions contemplated hereby and all of such
licenses are current and in full force and effect, and (iv) comply
with all applicable laws, rules and regulations governing in all
respects these Terms and Conditions.
b.
These Terms and Conditions are intended and shall be governed by
the Electronic Signatures in Global and National Commerce
Act. You manifest your acceptance of these Terms and
Conditions by any act demonstrating your assent, including, without
limitation, clicking any button containing the words "I accept" or
similar syntax whether you have actually read these Terms or
Condition or not as you will be deemed to have read them and shall
be charged with knowledge of all of the provisions hereof.
IWS strongly recommends that You print these Terms and Conditions
for your business and personal records.
c.
Upon acceptance, you have hired IWS to perform the Services and are
legally and contractually bound to perform your obligations
hereunder and as required by all applicable laws, rules and
regulations governing in any and all respects the Services.
2.
Definitions.
a.
"Customer" or "You" - Shall mean the person for whom
IWS is rendering the Services as well as your agents and
representatives, including, without limitation, shippers,
importers, exporters, carriers, customs brokers, brokers, secured
parties, warehousemen, buyers, sellers, shipper's agents, insurers,
underwriters, break-bulk agents and consignees (if applicable, as
each of such parties are defined and/or interpreted by Title 19 of
the Code of Federal Regulations of the United States [the
"CFR"]). It is your obligation, duty and responsibility to
provide copies of these Terms and Conditions to all of such agents
and representatives so that such agents and representative have
notice hereof and of their respective rights, responsibilities and
obligations hereunder. Any failure to provide such copies and
notice shall be deemed a material default by You hereunder.
b.
"IWS" shall have the meaning set forth above and shall
include the subsidiaries, related companies, agents and/or
representatives of IWS and/or the IWS Parties (as defined herein).
c.
"Services" - Shall mean the aggregate of services to be
performed by IWS hereunder in connection with your on-line request
to hire IWS to perform inspection and other services as required by
U.S. Customs.
d.
"Terms and Conditions" - These Terms and Conditions as may
be modified, amended, supplemented and otherwise revised by IWS
from time to time. IWS hereby reserves the right to so
modify, amend, supplement or otherwise revise these Terms and
Conditions. IWS shall provide notice of any such
modification, amendment, supplement or revision to You and You
shall then be obligated to forward any such notice to your agents
and representatives as set forth in the definition of "You" above.
e.
"Third Parties" shall include, but shall not be
limited to, the following: carriers, forwarders, agents,
warehousepersons and others to which the shipment and goods are
entrusted for transportation, cartage, handling, clearance,
delivery, storage and/or otherwise.
3.
Disclaimers; Limitation of Liability.
a.
IWS makes no express or implied warranties in connection with the
Services and otherwise with respect to its performance hereunder
and, to the fullest extent permitted by applicable law,
specifically waives all implied warranties, unless such warranties
are specifically set forth in these Terms and Conditions.
b.
Customer agrees that in connection with the Services and otherwise
with respect to the performance by IWS hereunder, IWS shall only be
liable for its gross negligent acts that are the direct and
proximate cause of any injury to Customer or Customer's shipment
and/or goods. In no event and under no circumstance shall
IWS' total liability arising from or related to any of the Services
or otherwise with respect to IWS' performance hereunder exceed the
aggregate amount paid by Customer to IWS for the Services.
c.
Other than as permitted pursuant to, and as limited by, these Terms
and Conditions, and to the fullest extent permitted by applicable
law, rules and regulations governing these Term and Conditions and
the transactions contemplated hereby, Customer hereby waives (x)
all claims, actions and/or demands and (y) any right now or in the
future to assert any claim, action and/or demand against IWS and/or
the IWS Parties with respect to in any manner the obligations
associated with the Services and otherwise in connection with the
performance by IWS hereunder. Furthermore, in connection
therewith, Customer hereby agrees to release each of IWS and the
IWS Parties of and from any and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants,
contracts, warranties, representations, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions,
claims, demands, liabilities, costs and expenses whatsoever, in law
or in equity, whether matured or contingent, whether liquidated or
unliquidated, which Customer or any other party ever had, now has,
or shall or may have in the future, or which any personal
representative, successor, heir and/or assign of Customer hereafter
can, shall or may have against IWS or any IWS Party with respect to
the matters waived in the immediately preceding sentence. The
waiver and release set forth herein includes, but is not limited
to, any and all known, unknown, discoverable, latent and patent
claims, actions and causes of action for, upon or by reason of any
and all claims which may have been made by Customer or any other
party, or could be made. This waiver and release of claims
and all other matters set forth in this Section 3 shall survive the
termination or expiration of these Terms and Conditions.
4.
Indemnity/Hold Harmless.
a.
Customer agrees to indemnify, defend and hold IWS and all of IWS'
officers, directors, shareholders, employees, agents,
representative and attorneys (collectively, the "IWS Parties" and
individually, an "IWS Party") from and against any and all
potential and actual claims, liabilities, losses, demands, causes
of actions, suits, proceedings, judgments, settlements, penalties,
interest, costs and expenses (including, without limitation, costs
and expenses of attorneys through all appeals) (in each case and
instance an "Indemnified Event") arising from or in any way related
to the performance of the Services by IWS hereunder and otherwise
in connection with the importation, exportation, handling,
transportation, clearance, delivery and/or storage of Customer's
shipment and/or goods, any breach by Customer of its obligations
hereunder and any conduct of Customer which violates in any respect
Federal, State and/or other laws, rules and regulations governing
in any respect the transactions and other provisions described in
these Terms and Conditions, provided, however, the foregoing
obligation to indemnify and hold harmless IWS and the IWS Parties
shall not apply in the event of a final determination by a court of
competent jurisdiction that (i) IWS was direct and proximate cause
of the matter being indemnified for hereunder and (ii) the actions
of IWS were actions that constituted gross negligent acts.
b.
In the event that an Indemnified Event shall exist in the sole
opinion of IWS, IWS will give notice in writing to Customer as
required hereby and any other form of notice as IWS shall elect at
Customer's address and other contact information as listed in IWS's
files.
c.
In the event that an Indemnified Event shall exist in the sole
opinion of IWS, You shall immediately take over and defend the
Indemnified Event with counsel satisfactory in all respects to
IWS. No settlement of any Indemnified Event shall be made, or
shall be enforceable against IWS or any IWS Party, without IWS and
the affected IWS Party consenting thereto.
d.
The indemnification and hold harmless obligations and all other
matters set forth in this Section 4 shall survive the termination
or expiration of these Terms and Conditions.
e.
The terms and provisions governing indemnity in this Section 4
shall also govern any and all other indemnity terms and provisions
set forth elsewhere in these Terms and Conditions.
5.
Obligations With Respect to Third Parties.
a.
Any insight, advice or suggestion by IWS that Customer select a
specific Third Party shall not under any circumstance or condition
mean that (i) IWS warrants that such Third Party will render
services in a particular manner and pursuant to a particular
standard, (ii) such a suggestion constitutes a warranty of any
sort, either express or implied, or (iii) IWS assumes any
responsibility or liability for any act or omission of such Third
Party.
b.
Any and all claims in connection with any act or omission by a
Third Party or agent thereof, including, without limitation, any
claims in connection with the means, route and procedure to be
followed in the handling, transportation, clearance, delivery
and/or storage of the shipment and/or goods that are the subject
matter of these Terms and Conditions shall be brought solely and
exclusively against such Third Party and/or its agents.
c.
Upon request of Customer, IWS agrees to reasonably cooperate with
Customer in relation to any claim against a Third Party and/or its
agents, provided, that Customer shall be responsible for any and
all costs and expenses incurred and/or to be incurred by IWS and/or
the IWS Parties in connection with any such cooperation, including,
without limitation, the costs and expenses of counsel selected by
IWS in the event that IWS believes that counsel representing the
interests of IWS and/or the IWS Parties is necessary in connection
therewith.
d. IN NO EVENT AND UNDER NO CIRCUMSTANCE SHALL
IWS BE LIABLE FOR THE ACTS OF THIRD PARTIES, EVEN IF IWS IS MADE
AWARE OF THE POSSIBILITY OF ANY SUCH ACTUAL OR POTENTIAL LIABILITY
OF THIRD PARTIES IN ADVANCE.
6.
Claims Procedure. Unless subject to a specific statute
or international convention, all claims against IWS permitted under
and as limited by these Terms and Conditions must be produced in
writing and must be actually received by IWS within sixty (60) days
of the occurrence of the underlying event upon which the claim(s)
is/are based. Failure to comply with this requirement will be
considered a failure to give timely notice, and shall be a complete
defense to any suit or action commenced by Customer.
7.
Payment of Fees for the Services and IWS's Costs and
Expenses.
a. Payment for
the Services performed hereunder by IWS shall be due and payable
upon receipt by Customer of an invoice therefor (the
"Invoice"). The Invoice will reflect payment of IWS's fees
for the Services rendered hereunder and all costs and expenses of
IWS to be paid by Customer in connection with the Services as
required hereby. Payment shall be made directly to IWS as
strictly required by the Invoice. BE ADVISED THAT YOU
ARE OBLIGATED BY LAW, INCLUDING, WITHOUT LIMITATION, TITLE 19,
CFR, SECTIONS 151.6, 151.7 AND OTHER SECTIONS OF FEDERAL LAW, TO
PAY IWS FOR THE SERVICES AND OTHERWISE AS SET FORTH IN THESE TERMS
AND CONDITIONS.
b. In the event that payment is not made by Customer as
strictly required by the Invoice, in addition to IWS's other rights
and remedies set forth herein and otherwise as permitted by
applicable law, IWS shall charge interest on such unpaid sums at
one and one-half percent (1.5%) per month or the highest rate
allowed by applicable law, whichever is less.
c. In the event that U.S. Customs or any other
governmental agency, whether state or federal, causes or requests
that a hold search, detention or seizure of any shipment and/or
goods is appropriate or required, Customer agrees to reimburse IWS
for any and all costs and fees associated with any such hold,
detention or seizure, including, but not limited to, statutory fees
for the retention and/or storage of Customer's shipment and/or
goods in IWS's warehouse or holding facility.
d. In the event of any referral for collection or
action against Customer for non-payment of an Invoice or any other
monies due IWS hereunder, Customer shall pay all costs and expenses
of collection and/or litigation, including attorneys' fees and
costs through all appeals.
8.
Customer Responsible for Inspect Request Form and
Information Furnished.
a. Customer understands, acknowledges and agrees that
it is solely responsibility to timely and properly fill out all
forms (including, without limitation, "inspect and request" forms)
required and/or necessary with respect to the Services or any
matter related thereto as provided to Customer by IWS and/or any
governmental agency or authority, including, without limitation,
U.S. Customs (all of such forms are referred to herein,
collectively, as the "Forms"). Customer's failure to properly
and accurately complete the Forms shall be deemed a material breach
of Customer's obligations under these Terms and Conditions and
Customer shall be liable for, and indemnify IWS and the IWS Parties
from and against, all costs, fees and expenses incurred by IWS or
any IWS Party as a result of such material breach by Customer
hereunder. Customer hereby represents, warrants and covenants
that all of the information provided in the Forms is and shall
continue to be true, accurate and correct in all respects. In
the event that the information contained in the Forms at any time
and from time to time becomes untrue, inaccurate or incorrect in
any material respect, in addition to any and all other rights and
remedies afforded to IWS with respect to such a material breach of
these Term and Conditions as set forth herein, You shall be
required and obligated to immediately notify IWS of the same so
that such information is at all times current.
b. Customer hereby understands, acknowledges and agrees
that it is solely responsible to review all documents and
declarations prepared and/or filed with U.S. Customs, and any other
governmental agency or authority or any other third party,
including, without limitation, Third Parties. Customer
represents and warrants that it will immediately advise IWS of any
errors, discrepancies, incorrect statements or omissions on any
such document, declaration or Form filed by or on Customer's
behalf. Further, Customer agrees that it has an affirmative,
non-delegable duty to disclose any and all information required to
import, export or enter Customer's shipment and goods.
9.
Customer's Duty to Inform IWS of Hazardous Materials.
In the event that Customer utilizes the Services to handle,
transport, clear, deliver and/or store hazardous materials,
Customer must inform and give notice to IWS, reasonably in advance,
that the contents of the shipment and goods that are the subject
matter of these Terms and Conditions are deemed hazardous
materials. Failure to inform IWS timely and properly shall be
a material breach of these Terms and Conditions and Customer shall
be liable for, and indemnify IWS and the IWS Parties from and
against, all costs, fees and expenses incurred by IWS or any IWS
Party as a result of such material breach by Customer
hereunder. For purposes of these Terms and Conditions the
term "hazardous materials" shall be defined in the same manner as
defined in all applicable environmental laws, rules and
regulations.
10.
Record Maintenance.
a.
Customer acknowledges that it has the exclusive duty and is solely
liable for maintaining all records required under all applicable
laws, rules and regulations governing the transactions contemplated
by these Terms and Conditions, including, without limitation,
Sections 508 and 509 of the Tariff Act, as amended (19 USC §1508
and §1509).
b.
Customer understands, acknowledges and agrees that IWS shall only
keep such records as is required to be maintained by applicable
law. IWS will not act as a "record keeper" or "recordkeeping
agent" for Customer at any time or for any purpose whatsoever.
11.
Rulings; Protests. It is Customer's duty, and not
IWS's duty or responsibility under any circumstance whatsoever, to
undertake timely any pre-or post release action in connection with
the shipment and/or goods as required by U.S. Customs, including,
but not limited to, obtaining binding rulings, advising of
liquidations, filing of petitions and/or protests.
12.
Default. In the event that Customer breaches in any
respect its obligations under these Terms and Conditions, Customer
will be immediately deemed in default hereunder. In the event
that Customer is in default hereunder, IWS shall be entitled to
enforce all of its rights and remedies as set forth in these Terms
and Conditions as well as all of its rights and remedies permitted
by applicable law and in equity. These rights include
remedies afforded IWS under Federal law, including Title 19 of the
CFR governing "Customs Duties" and other Federal laws governing the
rights and responsibilities of U.S. Customs brokers. In
addition to and in no way in limitation of the foregoing, IWS
reserves the right in all respects to cease offering the Services
to You in connection with future transactions. Moreover,
Customer shall be liable for any and all costs and expenses
incurred by IWS with respect to any default by Customer hereunder,
including, without limitation, all costs and expenses of attorneys
whether or not litigation is commenced and in the event of
litigation, through all appeals.
13.
General Lien and Right to Sell Customer's Property.
IWS shall have a general and continuing lien on any and all
property of Customer (including, without limitation, all shipments
and goods) coming into IWS's actual or constructive possession or
control for monies owed to IWS under these Terms and Conditions and
otherwise with respect to any breach by Customer of its obligations
hereunder. IWS shall have the right, but not the obligation,
to enforce and realize upon its lien rights in IWS's sole and
exclusive discretion in the event of any breach of Customer's
obligations hereunder. Accordingly, IWS shall be afforded all
rights at law and in equity, including, without limitation, all
rights under the Uniform Commercial Code as in effect in the State
of Florida and all applicable similar Federals laws, rules and
regulations and shall be deemed a secured party in connection with
such lien rights.
14.
Abandonment of Shipments/Goods. Customer shall have
the sole obligation upon completion of the Services to retrieve the
shipment and/or goods that are the subject of the Services in
accordance with instructions provided to Customer by IWS. In
the event that such shipment and/or goods are not so retrieved by
Customer, such shipment and/or goods shall be deemed abandoned by
Customer, Customer shall no longer have any rights and/or claims to
the shipment and/or goods and such shipment and/or goods shall
become the property of IWS free and clear of any lien, claim or
right of Customer thereto.
15.
Severability. In the event that any section and/or
portion hereof is found to be invalid and/or unenforceable for any
reason, then such section and/or portion shall be severable from
these Terms and Conditions and the remainder of these Terms and
Conditions shall remain in full force and effect.
16.
Force Majeure. IWS and Customer
shall be excused from performance hereunder for a reasonable
period of time where such inability to perform is as a result of
any act of God or reasonably unforeseeable event that is in all
respects beyond the control of such party (each a "Force Majeure
Event") if the party asserting such a Force Majeure Event can
prove that, given the circumstances, reasonable steps were taken
to minimize delay or damages and that the other party was timely
notified of the occurrence or likelihood thereof. Such
excuse from performance shall continue only as long as is
reasonably required given the circumstances surrounding the Force
Majeure Event. Notwithstanding anything contained herein to
the contrary, under no circumstances shall Customer be excused at
any time regardless of the occurrence of a Force Majeure Event
from the timely payment of all sums due IWS under these Terms and
Conditions and otherwise.
17.
Governing Law; Venue. Customer and IWS agree that the laws of the State
of Florida and United States Federal Law in the 11th
Circuit of the United States shall govern all disputes, claims and
issues arising from or relating to these Terms and Conditions
and/or the Services. The parties agree that the sole and
exclusive venue for all such disputes, claims and issues shall
exist in the State Courts of Broward County, Florida or, where
Federal jurisdiction is required or deemed appropriate by IWS, the
Southern District of Florida.
18.
Amendment; Waiver. Other than as set forth herein,
these Terms and Conditions shall not be amended, modified,
supplemented or otherwise changed in any manner without the prior
written consent of IWS and You. The waiver by either party of
any breach or failure to enforce any of these Terms and Conditions
at any time shall not in any way affect, limit or waive such
party's right thereafter to enforce and compel strict compliance
with every provision of these Terms and Conditions.
19.
No Reliance; Successors and/or Assigns/Entire Agreement.
Customer understands, acknowledges and agrees that Customer is
entering into these Terms and Conditions without relying on any
promises, statements, estimates, representations, warranties,
conditions, inducements, results or guaranties, express, implied,
oral or written, not specifically set forth in these Terms and
Conditions. These Terms and Conditions, the on-line request
relating hereto and any and all Invoices in connection herewith
contain the entire agreement of the parties hereto and shall bind
the parties and their respective successors and/or assigns.
Customer may not assign its rights hereunder without the prior
written consent of IWS, and no such assignment shall relieve
Customer of its liabilities, responsibilities and/or obligations
set forth hereunder
20.
Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if (a) delivered
in person, (b) transmitted by telecopy (with confirmation of
receipt), (c) mailed by certified or registered mail (return
receipt requested), or (d) delivered by an express courier
(with confirmation) to the parties as follows: (i) if to You,
at the address and other contact information as listed in IWS's
files and (ii) if to IWS, at Post Office Box 21031, Fort
Lauderdale, Florida 33335, Attention: Ms. Patricia Seiler,
Finance Manager, Facsimile Number (954) 763-7552.
21.
Waiver of Jury Trial. The parties hereto hereby agree
to waive in all respects the right to a trial by jury in connection
with, whether directly or indirectly, any matter or thing related
in any respect to these Terms and Conditions.
