Aero Shipper Letter of Instructions
AERO LOGISTICS
SHIPPER’S LETTER OF INSTRUCTIONS
TERMS AND CONDITIONS
Effective Date: 05-19-2009
All shipments to or from Shipper (which term includes the exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments or the agent thereof), as set forth on the Shipper’s Letter of Instruction shall be handled by Aero Logistics, LLC, (“Company”) subject to the following terms and conditions. By executing the Shipper’s Letter of Instructions, Shipper affirms that it has read, and agrees to, and is bound by these terms and conditions.
1. Selection of Routes and Agents. Company shall have sole discretion in the selection of the mode, means, route and procedure to be followed in the handling, transportation, and delivery of the goods. If Shipper requests motor carrier service or if Company decides, in its sole discretion, that Shipper’s goods should be transported by motor carriage rather than air for all or part of the transportation, then Company shall arrange service using authorized motor carrier(s) to perform such transportation, which shall be “exempt carriage” as defined by 49 U.S.C. § 13506(a)(8), or, if not exempt, “contract carriage” within the meaning of 49 U.S.C. § 14101(b) under these terms and conditions. Shipper expressly waives all rights and remedies existing under 49 U.S.C. Subtitle IV, Part B that are allowed to be waived under 49 U.S.C. § 14101(b), including without limitation, the Carmack Amendment at 49 U.S.C. § 14706, as may be amended from time to time. Company’s advice to Shipper that a particular person or firm has been selected to render service as to the goods shall not be construed to mean that Company warrants or represents that such person or firm will render such service.
2. Services by Third Parties. Unless Company carries, stores or otherwise physically handles the goods and the loss, damage, expense or delay occurs during such activity, Company assumes no liability as a carrier and shall not be held liable for any loss, damage, expense or delay to the goods shipped hereunder, except as provided in and subject to the limitations of Section 8. Company undertakes only to use reasonable care in the selection of carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling, delivery and/or storage or otherwise. When Company carries, stores or otherwise physically handles the shipment, including in the performance of any local pick-up or delivery services, it does so subject to the limitation of liability set forth in Section 8.
3. Acknowledgement of the Role and Limitations of Third Parties. Company is authorized to select and engage air carriers, ocean carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen and other persons as may be necessary or convenient, to transport, store, deal with, handle, and deliver the goods, all of whom shall be considered as agents of Shipper. The goods may be entrusted to such persons subject to all conditions as to limitations of liability for loss, damage, expense, or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts, or tariffs issued by such persons. Company shall in no event be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when such goods are in the custody, possession or control of third parties selected by Company to forward, enter and clear, transport, handle, or render other services in respect to such goods.
4. Shipments Subject to Re-Weigh/Re-Measurement. Shipper shall provide accurate weight and measurements for its shipments. Shipments are subject to re-weigh and re-measurement by Company. If the weight or measurements of the shipment as delivered are different from Shipper’s representations, or if pick-up or delivery time or location is changed by Shipper, Company’s rates, charges and fees are subject to change. If dimensional weight applies under tariff rule, dimensions shall be shown on the air waybill as follows: Length x Width x Depth = Cubic Inches (or applicable metric measurement).
5. Shipper’s Duty to Furnish Information. (a) On an import, at a reasonable time prior to entry of the goods to U.S. Customs, Shipper shall furnish to Company invoices in proper form together with other documents necessary or useful in the preparation of the U.S. Customs entry, and such further information as may be sufficient to establish the dutiable value, classification and admissibility of the goods pursuant to U.S. law or regulation or ruling. If Shipper fails to timely furnish all of such information or documents, as may be required to complete U.S. Customs entry, or if such information or documents is inaccurate or incomplete, Company shall be obligated to use its reasonable judgment in connection with the goods. Where a bond is required by U.S. Customs to be given for the production of any document or the performance of any act, Shipper shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by Company as principal, it being understood that Company entered into such undertaking at the request and on behalf of Shipper, and Shipper shall indemnify and hold Company harmless for the consequences of any breach of the terms of the bond. (b) On an export, at a reasonable time prior to the exportation of the shipment, Shipper shall furnish to Company the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods. (c) On any export or import, Company shall not in any way be liable for increased duty, penalty, fine or expense unless caused by the gross negligence or other fault of Company, in which event its liability to Shipper shall be governed by the provisions of Section 8. Shipper shall be bound by and warrant the accuracy of all invoices, documents and information furnished to Company by Shipper or its agents for export, entry or other purposes and Shipper agrees to indemnify and hold harmless Company against any increased duty, penalty, liquidated damages, fine or expense, including attorneys fees, resulting from any inaccuracy or omission or any failure to make timely presentation, even if not due to any negligence or fault of Shipper. Shipper understands and acknowledges that the submission of incomplete or inaccurate information related to an import entry, including descriptions, quantities, weights, purchase prices, discounts, commissions, charged selling prices at time of exportation, assists, country of origin, etc., may make Shipper liable to government penalties or sanctions. In the event the Shipper becomes aware that any information furnished to Company, or which accompanied the goods does not accurately reflect the entire transaction, Shipper shall immediately notify Company so that Company can take corrective action.
6. Declaring Higher Valuation. Shipper acknowledges and agrees that motor carriers, air carriers, ocean carriers, freight forwarders, warehousemen and others persons involved in the transportation of goods typically limit their liability for loss of or damage to the goods unless a higher value is declared and a charge based on such higher value is agreed upon, and paid to such persons. Company must receive specific, written instructions from Shipper to pay any such higher charge based on the valuation of the goods, and the person must accept such higher declared value; otherwise the valuation placed by Shipper on the goods shall be considered solely for export or customs purposes and the goods will be transported subject to all limitations of liability set forth in Sections 8, or otherwise applicable to the goods.
7. Insurance. Company will not arrange to insure the goods unless specific written instructions from Shipper providing the kind and amount of insurance have been received and acknowledged by Company in sufficient time prior to shipment from point of origin. Company does not undertake or warrant that such insurance can or will be placed. Unless Shipper instructs Company to effect insurance under Shipper’s own open marine policy, any insurance will be effected with one or more insurance companies or other underwriters to be selected by Company. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies and underwriters. Insurance coverage provided by Company will be assessed at a rate negotiated between the parties separate from any freight charges. Insured value shall not exceed the actual value of the goods. Company must ensure that the goods are packaged to withstand the normal hazards of transportation for any claim to be valid. In the event Shipper does not elect to insure all or part of the goods, Company’s liability for any losses, damages or delays to such shipment shall be limited in accordance with the provisions of Sections 2 and 8. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to Company by Shipper, or that the goods were insured under a policy in the name of Company. Insurance premiums and the charge of Company for arranging the same shall be at Shipper’s expense. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by any insurance, unless Company receives written instructions from Shipper and same is provided in accordance with this Section 7. Unless specifically agreed in writing by Company, Company assumes no responsibility to effect insurance on any export or import shipment which it does not handle.
8. Loss, Damage, Delay; Limitation of Liability. Shipper agrees and understands that Company’s liability, if any, for any loss of, damage to, or delay in transportation of goods shall be subject to, and governed by the terms and conditions set forth in Company’s tariff, unless superseded by Company’s air waybill. Shipper acknowledges that it has had the opportunity to review, and has reviewed Company’s tariff and air waybill, and agrees to be bound by those terms and conditions. COMPANY SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFIT, LOST BUSINESS, LOST EARNINGS, LOSS OF GOOD WILL, OR ANY SIMILAR OR RELATED EXPECTATION DAMAGES. Shipper agrees that the terms and conditions of Company’s tariff or applicable air waybill shall govern the time period(s) for presentation by Shipper of any claim arising from, or related to loss of, damage to, or delay of the goods.
9. Advancing Money. Company shall not be obliged to incur any expense, guarantee payment, or advance any money in connection with the importing, forwarding, transporting, storing or coopering of the goods, unless the same is previously provided to Company by Shipper on demand. Company shall be under no obligation to advance freight charges, customs duties or taxes on any shipment, nor shall any advance by Company be construed as a waiver of the provisions hereof. In the event that Company, in its sole discretion, advances any monies in relation to the goods, Shipper agrees that it shall be liable for, and shall reimburse such monies to Company and shall pay any disbursement charge which may be assessed by Company.
10. Indemnification for Freight, Duties. In the event that any carrier, other person or any governmental agency makes a claim or institutes legal action against Company for air, ocean, or other freight, duties, fines, charges, penalties, liquidated damages, or other monies in connection with Shipper’s goods, Shipper agrees to indemnify, defend, and hold Company harmless for any amount Company may be required to pay such carrier, other person, or governmental agency, and for Company’s reasonable costs and expenses incurred in defending such claim or legal action, including without limitation reasonable attorneys’ fees. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of Shipper to Company to pay all charges or other money due promptly on demand.
11. Sale of Perishable Goods. Perishable goods or live animals to be exported or which are cleared through customs concerning which no instructions for disposition are furnished by Shipper may be sold or otherwise disposed of without any notice to Shipper, owner or consignee of the goods, and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. In the event that any shipment is refused or remains unclaimed at destination or any transshipping point in the course of transit or is returned for any reason, Shipper shall nevertheless pay Company for all charges and expenses in connection therewith. No provision hereof shall obligate Company to forward, enter or clear the goods or arrange for their disposal.
12. C.O.D. Shipments. Goods received with instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise, or to collect on any specified terms by time drafts or otherwise, are accepted by Company only upon the express understanding that Company will exercise reasonable care in the selection of a bank, correspondent, carrier or agent to whom it will send such item for collection, and Company will not be responsible for any acts, omission, default, suspension, insolvency or want of care, loss, negligence, or fault of such bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection. Shipper must enter the amount of any Shipper’s C.O.D. which shall be collected subject to the fee and rules of the delivering carrier. Unless caused by Company’s willful or intentional misconduct, under no other circumstances shall Company’s liability relating in any way to Shipper’s C.O.D. exceed the limits of liability as set forth in Section 8.
13. Shipper Liable for Fees. Notwithstanding any payment instructions given to Company, Shipper shall be responsible for all fees, costs, and charges of any kind hereunder if Company is unable to collect such charges, which shall include special handling fees, duties or taxes which have been advanced, from consignee or other third party within 45 days of delivery.
14. General Lien on Any Property. Company shall have a general lien on any and all property (and documents relating thereto) of Shipper, in its actual or constructive possession, custody or control or en route, for all claims for freight, charges, fees, expenses or advances incurred by Company in connection with any goods of Shipper or storage of goods on behalf of Shipper or Consignee, even if previously delivered by Company, and if such claim remains unsatisfied for thirty (30) days after written demand for its payment is made, Company may sell at public auction or private sale, upon ten (10) days written notice, sent certified or registered mail with return receipt requested from Shipper, the goods, wares and/or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amount due to Company. Any surplus from such sale shall be transmitted to Shipper, and Shipper shall be liable for any deficiency in the sale.
15. Compensation of Company. Payment terms are net due on receipt. Contract or special rates may be considered void and the shipment re-rated at full charges if invoice is not paid in 30 days. Contract or special rates apply only to prepaid shipments unless specifically stated in a contract rate proposal. Invoicing hereunder while a shipment remains in transit shall not close out this agreement. The compensation of Company for its services shall be included with and is in addition to the rates and charges of all carriers and other persons selected by Company to transport, handle, and deal with the goods and such compensation shall be exclusive of any brokerage, commission, dividends or other revenue received by Company from carriers, insurers and others in connection with the shipment. Surcharges, including, without limitation, fuel, peak season, security, or government imposed charges, may apply as set forth in Company’s various tariffs, schedules, or documents, as may be published by Company on its website at http://aero.horizon-logistics.com/indirect-air/tariff/ and modified by Company in its sole discretion from time to time. If Shipper’s account is past due, Company is not obligated to refund any overcharges or pay any other obligation to Shipper, and Company, in its sole discretion, may apply any overcharge amounts or other payments Company agrees it owes Shipper, against the oldest outstanding invoices. In any referral for collection or action against Shipper for monies due to Company, upon recovery by Company, Shipper shall pay all expenses of collection and/or litigation, including reasonable attorneys’ fees, collection agency fees, and court costs. Any invoiced amounts not paid within thirty (30) days of the date of invoice shall accrue interest at the highest rate allowable by applicable law. All payment inquiries or disputes must be presented by one party to the other party within one hundred and eighty (180) days of receipt of payment. Any inquiries or disputes not presented within the timeframes set forth herein shall be deemed waived. Notwithstanding the foregoing, Company may at any time offset any amounts owed by Shipper to Company against any amounts owed by Company to Shipper.
16. Picking Up Shipments or Samples. Company shall not itself be obligated to pick up a shipment from a carrier or a sample from U.S. Customs. Should Company render such a service for and on behalf of Shipper, Company shall not be responsible for loss or damage to the shipment unless it is in the actual custody and control of Company and the loss or damage is caused by the gross negligence or other fault of Company, in which event the limitation of liability set forth in Section 8 shall apply.
17. No Responsibility For Governmental Requirements. It is Shipper’s responsibility to know and comply with all licensing, classification, valuation, marking and other Customs’ requirements, laws, regulations, and rulings enforced by the U.S. and any country having jurisdiction over a shipment, the laws and regulations of any applicable governmental agency, including but not limited to the U.S. Food and Drug Administration, and all other requirements, laws and regulations of any applicable country or governmental agency. Company shall not be responsible for action taken, liquidated damages, or fines or penalties assessed by any governmental agency against the goods because of the failure of Shipper to comply with the laws, requirements or regulations of any country or governmental agency or with a notification issued to Shipper by any such agency. Unless specifically requested by Shipper in writing, Company shall have no duty or obligation to take any pre- or post-Customs release action, including without limitation, obtaining binding rulings, advising of liquidations, or filing of petitions, and/or protests. Company shall be under no obligation to keep or maintain records on behalf of Shipper, and Company shall only keep and maintain those records which Company, itself, is required to keep and maintain under laws or regulations applicable to Company.
18. Loss, Damage or Expense Due To Delay. Unless the services to be performed by Company hereunder are delayed by reason of the gross negligence or willful misconduct of Company, Company shall not be responsible for any loss, damage, harm or expense incurred by Shipper because of such delay. In the event Company is at fault as above described, its liability is limited in accordance with the provisions of Section 8.
19. Construction of Terms and Venue. The terms and conditions hereof shall be construed according to the laws of the State of Texas. Shipper agrees that any litigation, civil action, or other court proceeding shall be brought in the State or Federal courts of Texas, and Shipper agrees to the jurisdiction of such courts. This Shipper’s Letter of Instructions and these terms and conditions, and any other agreements associated with transportation service provided by Company shall be governed by the law of the State of Texas without regard to conflict of laws; provided that the laws, regulations, and treaties of the United States shall prevail in the case of conflict.
20. Proof of Delivery. Shipper agrees that digitized signature or computer record of delivery receipt is acceptable as proof of delivery of any shipment hereunder.
21. Level of Service. Company’s only obligation with respect to providing pick-up, transportation, and delivery of the goods shall be to provide, or, as the case may be, arrange for the pick-up, transportation, and delivery of the goods with reasonable dispatch.
22. Hazardous Materials and Dangerous Goods. In the event that Shipper tenders goods which are comprised in whole or in part of hazardous materials or dangerous goods, Shipper shall comply with all of the requirements set forth in Company’s tariff.
23. Transportation Security Administration. Shipper understands and agrees that the transportation of its goods may be subject to the regulations and rules of the Transportation Security Administration (TSA”) of the U.S. Department of Transportation (“DHS”), and Shipper agrees to all requirements set forth in Company’s tariff regarding compliance with such TSA regulations and rules. Shipper acknowledges and understands that compliance with TSA requirements may require its goods to be opened for inspection by TSA or government officials, and that information about the goods be furnished to and retained by such officials.
24. Obligation to Pay Customs Charges. For the benefit of Shipper, Company makes Shipper aware of the following notice under 19 C.F.R. § 111.29(b)(1): “If you are the importer of record, payment to the broker will not relieve you of liability for customs charges (duties, taxes, or other debts owed 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.”
25. Quotations not Binding. Quotations as to fees, rates of duty, freight, charges, insurance premiums or other amounts given by Company to Shipper are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Company unless Company in writing specifically undertakes the handling or transportation service of the shipment at a specific rate.
26. Independent Contractor. Except for Customs entries and duties services performed pursuant to a power of attorney, Company shall be, and operate as an independent contractor in performing services for Shipper. This Shipper’s Letter of Instructions does not create any agency, partnership, joint-venture, or employer-employee relationship between Company and Shipper.
27. Indemnity Against Liability Arising From the Importation of Merchandise. Shipper agrees to indemnify, defend, and hold Company harmless from any claims, actions, penalties, fines, and/or liabilities arising from the importation of goods in violation of any federal, state and/or other laws or regulations, and further agrees to indemnify, defend, and hold Company harmless against any and all liability, loss, harm, damages, injury, costs, claims, actions, fines, penalties, and/or expenses, including but not limited to attorney’s fees, which Company may hereafter incur, suffer or be required to pay by reason of claims by any government agency or private party. In the event that any actions, lawsuit or proceeding is brought against Company by any government agency or any private party, Company shall give notice in writing to Shipper by mail at its address on file with Company. Upon receipt of such notice, the Shipper at its own expense shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the Company.
28. Guaranteed Delivery. In the event Shipper and Company expressly agree in writing to guaranteed delivery for a particular shipment, this Section 28 shall apply. If the Company fails to deliver, or have delivered the particular shipment in the amount of time allowed, Shipper has up to fifteen (15) days from the date of the actual delivery of the shipment to seek refund or credit of the applicable transportation charges paid by Shipper; provided however, Company will not be obligated to refund or credit Shipper’s transportation charges if the failure to make timely delivery resulted from any of the following circumstances: (a) Shipper’s failure to tender freight to Company at least fifteen (15) minutes before the stated pick-up cutoff; (b) the unavailability or refusal of an appropriate or eligible person to accept delivery or sign for the shipment; (c) Shipper's failure to provide complete and accurate delivery address information; (d) Shipper's failure to provide complete and accurate information relating to the weight and dimensions, or contents of the shipment; (e) Security or other regulatory delays; (f) Perils of the air, sea, or land, public enemies, criminal acts of any person(s) or entities, including, but not limited to, acts of terrorism, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotion, hazards incident to war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by Company), strikes or anticipated strikes (of any entity, including, but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), conditions that present a danger to Company personnel, breakdown or failure of equipment, fuel shortage, and disruption or failure of communication and information systems (including, but not limited to, Company’s systems); (g) the shipment was undeliverable or returned. The refund to Shipper of applicable transportation charges shall be Shipper’s sole and exclusive remedy against Company for failure to comply with a guaranteed delivery, and all other remedies are waived.
29. Other Documents. Shipper affirms that it has reviewed, and agrees to be bound by the terms and conditions contained in Company’s air waybill, and the terms and conditions set forth in Company’s tariff, which are available online at http://aero.horizon-logistics.com/indirect-air/tariff/. Shipper understands that the foregoing terms and conditions are subject to change without notice from time to time in Company’s sole discretion, and therefore agrees to any and all revisions thereof. In the case of conflict between the terms and conditions applicable to the Shipper’s Letter of Instructions, the order of priority shall be that the air waybill terms and conditions take precedence, followed by the tariff terms and conditions, followed by these terms and conditions.
30. Modification. None of the terms and conditions applicable to the Shipper’s Letter of Instructions, as set forth herein, may be modified, amended, or waived except through a separate, written instrument executed by duly-authorized representatives of both Company and Shipper.
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