Scarbrough International, Ltd. Terms & Conditions of Service 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 document(s) shall
govern those services.
1. Definitions.
a)"Company" shall mean Scarbrough International, Ltd., 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
principals, 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 and security 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 againstthe Company for
a potential or actual loss, must be made in writing and received by the Company, within 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 year from the date of the loss;
(ii) For claims arising out of air transportation, within 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 75
days from the date of liquidation of the entry(s);
(iv) For any and all other claims of any other type, within 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 actions(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 U.S. Customs & Border Protection, other Government Agency and/or third parties,
and will immediately advise the Company of any errors, discrepancies, incorrect statements, or
omissions on any declaration or other submission filed on Customers behalf;
b) In preparing and submitting customs entries, export declarations, applications, security filings,
documentation and/or other required data, 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, incomplete or
false statement by the Customer or its agent, representative or contractor 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 therefore; 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/orterms 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) 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 therefore, which request must be confirmed in writing
by the Company prior to rendering services for the covered transaction(s).
c) In the absence of additional coverage under (b) above, the Company's liability shall be limited to
the following:
i) where the claim arises from activities other than those relating to customs business, $50.00 USD
per shipment or transaction, or
ii) where the claim arises from activities relating to "Customs business," $50.00 USD per entry or the
amount of brokerage fees paid to Company for the entry, whichever is less;
d) 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, or
for the acts of third parties.
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, fines, penalties and/or attorneys' fees arising from the
importation or exportation of customers merchandise and/or any conduct of the Customer, including
but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent
or representative, 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,
penalties, fines and/or expenses, including but not limited to reasonable attorney's 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 on 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 attorney's fees and interest at 15% per annum
or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by 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 on-going 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 attorney fee.
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.
Company's decision to waive any provision herein, either by conduct or otherwise, shall not be
deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate
any other provision herein.
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 Missouri without
giving consideration to principals of conflict of law. Customer and Company
a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of
Missouri;
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.
