AIRCON AIR FREIGHT INC TERMS OF SERVICE
Aircon Air Freight Inc. looks forward to the opportunity to work with each and every Customer as the Customer’s agent for freight forwarding and related needs. Aircon Air Freight takes great pride in its relationship with its Customers and is grateful for the trust placed in Aircon Air Freight. Aircon Air Freight’s goal is to service all of its Customers’ freight forwarding needs timely and efficiently. The following terms (hereafter the “Terms”) govern all requests for services from Aircon Air Freight Inc.
1. Definitions and Rules of Construction. As used herein:
“Aircon Air Freight” means Aircon Air Freight INC and its affiliates, representatives, and employees. Unless otherwise agreed by Aircon Air Freight, Aircon Air Freight acts as the Customer’s agent for freight forwarding and not as a carrier.
“Customer” means any person or entity to whom Aircon Air Freight renders services as well as that person’s or entity’s employees, affiliates, and representatives.
“Governmental Unit” means any nation, state, province, district, county, municipality, or public corporation, or any court, tribunal, department, subdivision, agency or instrumentality of any of the foregoing.
“Laws” means each present and future treaty, statute, code, rule, regulation, ordinance, rule of law, principle of law, order, decree, judgment, guidance, or the equivalent enacted, ratified, adopted, promulgated, or issued by an applicable Governmental Unit, and all international conventions ratified by the United States of America or otherwise mandatorily applicable under the laws of the United States of America.
“Storage Document” means any document, whether in paper or in electronic form, governing or evidencing the receipt of Customer’s goods for storage.
The term “third party” means any person or entity selected by Aircon Air Freight for transportation, carriage, cartage, drayage, handling, delivery, storage, distribution, clearance, entry, or liquidation of Customer’s goods,
“Transport Document” means any document, whether in paper and in electronic form, governing or evidencing the carriage of Customer’s goods.
2. Terms of Payment. Quotations by Aircon Air Freight are for informational purposes only and are subject to change by Aircon Air Freight. The amount due from Customer will be the specific amount at which Aircon Airfreight agrees to provide or procure the services requested by the Customer. Any amounts due from the Customer for services to be provided or procured for Customer are due within 48 hours of an invoice from Aircon Air Freight and in any case must be paid prior to the service. Any additional amounts due from Customer over the price initially agreed by Aircon Air Freight, such as, without limitation, charges for additional services requested by Customer, weight or value overages, demurrage, fines based on the nature of Customer’s goods, etc. must be paid within three (3) days of Aircon Air Freight’s issuance of an invoice to Customer. Aircon Air Freight reserves the right to require Customer to pay third parties directly in its discretion. All sums not paid to Aircon Air Freight or applicable third party within seven (7) days of Aircon Air Freight’s invoice shall bear interest at the lower of (i) one percent (1%) per month or (ii) the highest rate allowed by applicable law.
3. Choosing Routes or Agents. Unless Aircon Air Freight otherwise agrees, Aircon Air Freight has discretion to choose the means, routes, and procedures to be followed in handling, transporting, loading, unloading, storing, clearing, entering, delivering, distributing, or otherwise dealing with Customer’s goods and in choosing the third parties to perform these services. All such third parties shall be considered as the agents of Customer and not of Aircon Air Freight. Given that Aircon Air Freight strives to provide the quickest and most efficient freight forwarding solutions for its Customers, statements by Aircon Air Freight that a particular third party has been or will be selected to render services shall not be construed as a representation or guaranty that the indicated third party will be
4. Customer’s Duties.
a. Customer must do the following: (i) provide to Aircon Air Freight and/or Aircon Air Freight’s designated third party all documents and information required to fulfill Customer’s freight forwarding request. This includes all documents and information required to handle, transport, load, unload, store, clear, enter, deliver, distribute, and otherwise deal with goods, including where applicable complete and accurate information regarding dutiable value, weights, measures, number of pieces, packages, cartons or containers, condition of the goods, classification, country of origin, genuineness of the goods and any mark or symbol associated with them, Customer’s right to export, import, and/or distribution; (ii) immediately advise Aircon Air Freight of any errors, discrepancies, incorrect statements, or omissions in any document or other information; (iii) review all documents, declarations, security filings, and other submissions prepared or filed with any Governmental Unit or any other person; and (iv) maintain all records required under §§ 508 and 509 of the Tariff Act (19 U.S.C. §§ 1508 and 1509) and/or other applicable Law. Unless otherwise agreed, Aircon Air Freight shall only keep such records that applicable Law requires Aircon Air Freight itself to maintain but shall not act as a “record-keeper” or “third party record-keeper” for Customer. Aircon Air Freight has no liability for any action taken or fines or penalties assessed by any Governmental Unit because Customer fails to comply with any Law. Unless otherwise agreed, Customer shall pay all duties and other Customs charges by ACH or wire.
b. Customer warrants the accuracy and completeness of all documents and information furnished to Aircon Air Freight by or for Customer. Aircon Air Freight has no duty to inquire into the accuracy, sufficiency, or completeness of any documents or information and in no instance shall be charged with information that Customer fails to give in writing. Aircon Air Freight may rely on all documents and information furnished to Aircon Air Freight. If Customer fails to perform any obligation, Aircon Air Freight may use its judgment in connection with the goods.
c. Customer warrants that it is and will remain in compliance with all applicable Laws, including without limitation anti-corruption Laws such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act; the U.S. Export Administration Regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security; the International Traffic in Arms Regulations administered by the U.S. State Department’s Directorate of Defense Trade Controls; the U.S. Anti-Boycott regulations, and the various U.S. economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control, and that the information the Customer provides to Aircon Air Freight in connection with Customer’s compliance with all such applicable Laws is true and complete. Customer shall also comply with all applicable Laws of any country or other jurisdiction to, from, through, over, or in which any goods may be carried, including all applicable Laws relating to the marking, packing, carriage, storage, clearance or delivery of the goods. Customer warrants that the export jurisdiction and classification of all goods is correct and that it shall immediately notify Aircon Air Freight in writing of any changes to such information. Customer warrants that all goods are properly marked, addressed, and packaged to withstand ocean transport, air transport, and ground transport.
5. Insurance. Unless Aircon Air Freight agrees otherwise, Aircon Air Freight will not procure insurance for Customer’s goods. If Aircon Air Freight agrees to procure insurance, Aircon Air Freight has the right to select the insurance company and underwriter. The insured shall have recourse against the insurer only and not against Aircon Air Freight. Customer is responsible for all insurance premiums and costs of procuring insurance.
6. Limitation of Liability for Loss, Damage, Expense or Delay.
a. Aircon Air Freight has no obligations other than those set forth in these Terms or in any transport or storage document issued by Aircon Air Freight. Except as specifically set forth in these Terms, Aircon Air Freight makes no express or implied warranties in connection with its services. AIRCON AIR FREIGHT HAS NO LIABILITY FOR LOSS, DAMAGE, DELAY, INCREASED DUTY, PENALTY, FINE OR EXPENSE, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AIRCON AIR FREIGHT, IN WHICH CASE ITS LIABILITY IS GOVERNED BY THE APPLICABLE PROVISIONS SET FORTH BELOW. Unless otherwise agreed, Aircon Air Freight has no obligation to take any pre- or post-customs release action, including without limitation obtaining rulings, advising of liquidations, and/or filing of petitions or protests. Where Aircon Air Freight prepares and/or issues a transport or storage document, Aircon Air Freight has no obligation to specify thereon the quantity or the condition of the goods. Customer waives all rights and remedies under the Carmack Amendment.
b. Subject to the further limitations of liability set forth below, Aircon Air Freight’s liability for any alleged loss, damage, expense or delay resulting from the gross negligence or willful misconduct of Aircon Air Freight is limited as follows: (i) if the claim arises from Aircon Air Freight’s Customs brokerage services, the lesser of fifty dollars (US) ($50) per entry or the amount of brokerage fees paid to Aircon Air Freight for the entry; (ii) if the claim relates to transportation services covered by a transport or storage document or the distribution or handling services covered by a storage document issued by Aircon Air Freight, the monetary limits on Aircon Air Freight’s liability provided for in the transport or storage document; or (iii) if clauses (i) and (ii) do not apply, the lesser of fifty dollars (US) ($50) per shipment or the commercial invoice value of the shipment. The amount of any partial loss, damage, expense or delay shall be adjusted pro rata.
c. Customer may obtain an increase in the liability of Aircon Air Freight above the limits set forth above if Aircon Air Freight agrees in its discretion to the request before it renders any services, and the agreement sets forth the limit of Aircon Air Freight’s liability and the additional compensation received or paid for the added liability. Otherwise, any valuation that Customer places on the goods shall be considered for export or customs purposes only.
d. AIRCON AIR FREIGHT SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, INCOME OR OPPORTUNITY.
e. THE LIMITATIONS AND EXCLUSIONS IN THIS PARAGRAPH APPLY EVEN IF THEY CAUSE ANY REMEDY OTHERWISE AVAILABLE TO FAIL OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO AIRCON AIR FREIGHT’S PERFORMANCE OF FAILURE OR DELAY OF PERFORMANCE.
f. Goods entrusted to third parties remain subject to the foregoing limitations of liability. Aircon Air Freight has no liability for any loss, damage, expense, or delay caused by the acts or omissions of third parties.
7. Time Limitations for Claims. With respect to any alleged act or omission by Aircon Air Freight, Customer must present to Aircon Air Freight at Aircon Air Freight’s office (i) a preliminary written notice of claim within fourteen (14) days after the loss or incident giving rise to the claim and (ii) a formal written sworn proof of claim within one hundred and twenty (120) days from the date of the alleged act or omission, and in the absence of both (i) and (ii) any claims relating to such alleged act or omission are waived. Any suit to recover on a claim against Aircon Air Freight must be commenced within one (1) year after the date of the earlier of: delivery or release of the goods; the date when the goods should have been delivered or released; or the date when any other alleged loss, damage, expense, or delay first arose.
8. Indemnification. CUSTOMER INDEMNIFIES AND HOLDS AIRCON AIR FREIGHT HARMLESS AGAINST ALL CHARGES, CLAIMS, DAMAGES, LIABILITIES, JUDGMENTS, COSTS, EXPENSES, PAYMENTS OR LOSSES OF ANY KIND (INCLUDING FOR PURCHASE PRICE, FREIGHT, STORAGE, DEMURRAGE, DETENTION, DUTIES, TAXES, FINES, PENALTIES, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND AIRCON AIR FREIGHT’S LITIGATION EXPENSES AND REASONABLE EXPENSES, INCLUDING ATTORNEYS’ FEES) ARISING FROM OR RELATED TO ANY ONE OR MORE OF THE FOLLOWING: (A) ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, UNDERTAKING, CONSENT, OR WAIVER BY CUSTOMER; (B) ANY FAILURE OF CUSTOMER TO PAY OR PERFORM WHEN DUE ITS OBLIGATIONS TO AIRCON AIR FREIGHT OR TO ANY OTHER PERSON (INCLUDING ANY GOVERNMENTAL UNIT, CARRIER, VENDOR, HOLDER OR ASSIGNEE OF ANY TRANSPORT DOCUMENT, STORAGE DOCUMENT, OR OTHER COMMERCIAL DOCUMENT); (C) CUSTOMER’S VIOLATION OF ANY LAW OR FAILURE TO DISCLOSE, CORRECT, OR COMPLETE ANY ENTRY, EXPORT, SECURITY OR OTHER DATA OR DOCUMENTS; (D) ANY OTHER CLAIM BY ANY SUCH OTHER PERSON, IN EACH CASE, EVEN IF NOT DUE TO ANY NEGLIGENCE OR OTHER FAULT OF CUSTOMER. AT CUSTOMER’S EXPENSE AIRCON AIR FREIGHT MAY EMPLOY ATTORNEYS AND OTHER PROFESSIONALS OF ITS OWN CHOICE IN CONNECTION WITH ANY INDEMNIFIED MATTER.
9. Sale of Perishable Goods. Perishable goods or live animals for which Customer gives no instructions for disposition may be sold or otherwise disposed of without any notice to the Customer, owner, or consignee, and payment or tender of the net proceeds of any sale after deduction of charges is equivalent to delivery of the goods and bars any claim by customer relating to such goods or live animals. If for any reason a shipment is refused or remains unclaimed at any place or is returned, the Customer must still pay Aircon Air Freight for all charges and expenses in connection with the goods. Nothing obligates Aircon Air Freight to forward, enter or clear the goods or arrange for their disposal.
10. General Lien on any Property. Aircon Air Freight has a general lien on Customer goods and documents relating thereto as security for all existing and future indebtedness and obligations of Customer to Aircon Air Freight. This lien is in addition to any other rights and remedies Aircon Air Freight may have and shall survive delivery or release of any Customer goods. Aircon Air Freight has the right to withhold delivery or release of any Customer goods if Customer is in breach of any indebtedness or obligation to Aircon Air Freight, even if Customer’s indebtedness or obligation is not related to such goods. If any such indebtedness or obligation is unsatisfied, Aircon Air Freight may, in addition to all other rights and remedies under other agreements and/or applicable Law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from the sale or other disposition, after deduction for all sums owed to Aircon Air Freight, shall be transmitted to Customer, and Customer shall be liable for any deficiency, which shall be due within seven (7) days of an invoice or other notice from Aircon Air Freight.
11. Intellectual Property. Aircon Air Freight’s intellectual property used in connection with any services to Customer is confidential and proprietary and is the sole and exclusive property of Aircon Air Freight. Customer shall not directly nor indirectly disclose, use, recreate, duplicate, decode, alter, change, disassemble, decompile, or reverse engineer any of Aircon Air Freight’s intellectual property. Customer acknowledges and agrees that Customer’s violation of this provision shall cause irreparable harm to Aircon Air Freight and shall be grounds for equitable relief in addition to monetary damages.
12. Data Privacy. Customer warrants that it will comply with all applicable privacy and data protection Laws with respect to information it supplies to Aircon Air Freight, including without limitation that it has obtained the proper consent from all data subjects to the disclosure and transfer of any data it supplies to Aircon Air Freight.
13. Force Majeure. Aircon Air Freight is not liable for loss, damage, expense, delay, or nonperformance resulting in whole or in part from circumstances beyond Aircon Air Freight’s control, including: (i) epidemics or pandemics; (ii) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster; (iii) war, hijacking, robbery, theft or terrorist activities; (iv) incidents or deteriorations to means of transportation; (v) embargoes; (vi) civil commotions or riots; (vii) defects, nature or inherent vice of the goods; (viii) acts, breaches of contract, or omissions by Customer or any other person who may have an interest in the goods; (ix) acts by any Governmental Unit, including denial or cancellation of any import, export or other necessary license; or (x) strikes, lockouts, slowdowns or other labor conflicts.
14. Notices. Notices under this Agreement shall be in writing and deemed to have been received when personally delivered or three days after being sent via U.S. mail, return receipt requested and postage prepaid with a simultaneous copy by electronic mail to the other party.
15. Disputes, Governing Law and Jurisdiction. All disputes arising under or related to this Agreement or the relationship between Customer and Aircon Air Freight or between Customer and a third party selected by Aircon Air Freight shall be interpreted and governed under the laws of the State of Texas without regard to conflict of law principles and shall be heard in the state or federal courts in or nearest to Denton County, Texas, except that Aircon Air Freight may elect, in its sole discretion, binding arbitration in Denton County, Texas before a single arbitrator pursuant to the then-current Commercial Arbitration Rules of the American Arbitration Association. Judgment may be entered on the award in any court of competent jurisdiction. The arbitrator will have no authority to enter an award not permitted under this Agreement. Aircon Air Freight shall be entitled to recover its attorneys’ fees and litigation expenses for any action in brings to enforce this Agreement and in any action brought by Customer in which Customer is not the prevailing party. Aircon Air Freight may seek immediate injunctive relief in a state or federal court located in or nearest to Denton County, Texas to enforce these Terms.
16. Electronic Execution and Acceptance. Customer’s delivery of goods to Aircon Air Freight, Customer’s click through acceptance on Aircon Air Freight’s website, and/or Customer’s written or electronic acknowledgement of these Terms constitutes Customer’s agreement to these Terms.
17. Non-Disparagement. The Parties agree not to disparage each other, their goods and services, and their current and former personnel, including in trade journals, trade news, review sites and/or on social media.
18. Miscellaneous. Notwithstanding any course of dealing, course of conduct, course of performance, or usage of trade, (a) whenever reference is made to the Aircon Air Freight’s agreement, acceptance, approval or consent, even if not specifically so stated, such agreement, acceptance, approval or consent is not effective unless in writing and signed by a duly authorized officer of Aircon Air Freight, (b) neither failure nor delay by Aircon Air Freight to exercise any right, remedy, power, or privilege operates as a waiver, (c) no single or partial exercise of any right, remedy, power, or privilege by Aircon Air Freight precludes any other or further exercise thereof or the exercise of that or any other right, remedy, power, or privilege, (d) no amendment, modification, rescission, waiver or release of all or part of these Terms, any transport document, or any storage document is effective without the Aircon Air Freight’s specific prior written approval. Aircon Air Freight may from time to time change these Terms. In the event of a conflict between these Terms and an updated version on Aircon Air Freight’s website in effect on the date that Aircon Air Freight commences services, the updated version controls. These Terms shall be construed without regard to any presumption or rule requiring that they be construed against the drafter. If these Terms conflict with the terms of a Transport or Storage Document issued by Aircon Air Freight, the Transport or Storage Document controls. If any part of these Terms is held invalid or unenforceable in a jurisdiction by a final, non-appealable judgment, the judgment does not affect the validity or enforceability of any other part of these Terms.
NOTICE: If you are the importer of record, payments to the broker will not relieve you of liability for customs charges (duties, taxes, or other debts owed to CBP) in the event the charges are not paid by the broker. Therefore, if you pay by check, customs charges may be paid with a separate check payable to the “U.S. Customs and Border Protection” which shall be delivered to CBP by the broker.