CUSTOMER RELEASE AND ACKNOWLEDGMENT
RE: COPPERSMITH’S SECURITY FILING FEATURE
L.E. Coppersmith, Inc. hereinafter "Coppersmith"
WHEREAS, Coppersmith has constructed a web site which provides a CBP security filing feature (ISF) which is not generally available to the public at large; and
WHEREAS, such information shall be provided to select customers via a proprietary login procedure made available only to those select customers; and
WHEREAS, Coppersmith routinely, but not in every instance, updates its CBP ISF on an hourly basis during its normal business day which is determined by reference to time in the Pacific Time Zone; and
WHEREAS, with knowledge of the above, Customer wishes to utilize Coppersmith’s CBP security filing feature.
NOW, THEREFORE, Customer hereby acknowledges these terms and conditions and releases Coppersmith as follows:
- Customer acknowledges that Coppersmith provides access to its CBP security filing system to select customers by a log in procedure which is proprietary to Coppersmith.
- Customer agrees to keep confidential and to refrain from providing the login procedure to any persons other than Customer’s authorized employees who have a need to know as well as to any other person and/or entity without the prior written consent of Coppersmith.
- Customer acknowledges that Coppersmith may at any time without notice, deny Customer access to the CBP security filing feature and/or change the log in procedure.
"Company" shall mean L.E. Coppersmith Inc. (Coppersmith) its subsidiaries, related companies, agents, and/or representatives. In addition to the terms and conditions stated below, usage of these ISF services shall be subject to the NCBFAA terms and conditions of services, including its provisions regarding jurisdiction, venue and limits of liability.
"Customer" shall mean all users of these ISF services along with all their customers, as well as Customer’s subsidiaries, related companies, agents and/or representatives.
Company will make commercially reasonable efforts to accurately transmit, or to cause a third party to accurately transmit, the information received from or on behalf of Customer in a timely manner, consistent with industry standards and subject to (i) delays related to force majeure events as customarily defined in the United States Customs brokerage/freight forwarding and United States shipping/transportation industries and (ii) any and all technological failures or constraints that may occur or arise.
Company will rely on the accuracy of all information received from or on behalf of Customer, and shall not be responsible for verifying the accuracy of any such information. Customer shall ensure the accuracy of all such information, and shall indemnify, defend, and hold Company harmless from any and all claims asserted and all liabilities and/or losses suffered by Company, including without limitation to any and all costs, penalties, fines, fees, expenses and/or damages, including punitive, indirect, incidental, special, statutory, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, or other intangible losses.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH ITS SERVICES OR ANY SERVICES PROVIDED BY ANY THIRD PARTY. COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT COMPANY’S SERVICES WILL MEET CU.S.TOMER REQUIREMENTS; THAT COMPANY’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE AND/OR ERROR FREE; OR THAT THE QUALITY OF COMPANY’S SERVICES WILL MEET CU.S.TOMER EXPECTATIONS. No agent, employee, or representative of Company has any authority to bind Company to any affirmation, representation, or warranty concerning the services provided under this contract, and unless an affirmation, representation, or warranty is specifically included within this contract, it shall not be enforceable by Customer.
Customer’s exclusive and sole remedy against Company under this contract shall be the refund of any money paid to Company by Customer for the specific services from which Customer’s claim(s) arose. IN NO EVENT WILL COMPANY BE LIABLE TO CU.S.TOMER OR TO ANY THIRD PARTY FOR THE ACTS OF ANY THIRD PARTY OR FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERMS AND 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.
2. Company as agent.
- "Company" shall mean L.E. COPPERSMITH, INC., its subsidiaries, related companies, agents and/or representatives;
- "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;
- "Documentation" shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
- "Ocean Transportation Intermediaries" ("OTI") shall include an "ocean freight forwarder" and a "non-vessel operating carrier";
- "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".
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:
- For claims arising out of ocean transportation, within one (1) year from the date of the loss;
- For claims arising out of air transportation, within two (2) years from the date of the loss;
- 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);
- 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 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 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 Customers 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 insure 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 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/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 (c) 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 therefore, which request must be confirmed in writing by the
Company prior to rendering services for the covered transaction(s). over
(d) 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 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 customers 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 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 have not 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 a monthly rate of 2% from the date of the invoice, unless a lower amount is agreed to by
Company in writing. If Customer breaches the promise to pay Company in a timely fashion, then the resulting damages would be
impracticable or extremely difficult to determine, because of the state of the economy and rapidly fluctuating interest rates. Because of the
difficulty in determining the damages resulting from the Customer's failure to pay Company in a timely fashion, the parties agree that, in the
event of such a breach, Customer shall pay the sum of two percent per month for all sums due to Company as liquidated damages. In the
event, the legal interest rate in the state in which Customer is domiciled is higher, the interest rate in that state shall govern.
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 U.S.C §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 "record keeper" or "record keeping 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
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 County of Los Angeles, State of California 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 Los Angeles county 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.
Approved by the National Customs Brokers and Forwarders Association of America (Revised 01/00) 01-01-07 LEC