NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- 1. DEFINITIONS. As used herein, “Goods” refers to cargo shipped hereunder including all pieces which are tendered to, and accepted by, MAGNO on a single bill of lading; “Domestic USA” means services performed or to be performed within the United States and its insular possessions, as well as Puerto Rico; and “International” means shipments other than Domestic USA shipments.
- 2. AGREEMENT TO TERMS. Each shipment hereunder shall be governed by the bill of lading issued in connection therewith; however, if there is a conflict between the provisions of this Agreement and the terms and conditions of any such bill of lading, then the provisions of this Agreement will exclusively apply, provided, however, that notwithstanding the foregoing, such terms and conditions on the bill of lading shall exclusively apply in the event of such conflict, if the provisions of this Agreement, as written or applied, (a) are contrary to applicable law, or would result in violation of the terms of MAGNO’s applicable freight forwarder license, permit of other authority or (b) would result in MAGNO being deemed to be, or have liability as, a carrier in connection with the shipment of such Goods; or (c) would result in MAGNO having liability for loss, damage or delay with respect to such shipment of Goods in amounts greater than the amounts for which MAGNO would be liable under such terms and conditions.
- 3. RESPONSIBILITY FOR PAYMENT. Customer shall pay all charges due hereunder within thirty (30) days after receipt of invoice. Payments shall be made in the applicable currency presented on MAGNO’s invoice. All invoices shall be paid in full, without reduction or set-off. Although Customer may give MAGNO alternate payment instructions, Customer will always be primarily responsible for all shipping and delivery charges, as well as any other costs MAGNO may incur in either returning a shipment to Customer or storing it in a warehouse pending disposition. Any unpaid amounts shall bear interest from the date due at the lesser of 1.5% per month or the maximum rate allowed under applicable law. Should MAGNO, in its sole discretion, find it necessary to employ an attorney to collect amounts due hereunder, MAGNO shall be entitled to recover all reasonable attorneys’ fees incurred by MAGNO in connection therewith. All payments will be made in USD unless agreed otherwise.
- 4. CUSTOMER’S RESPONSIBILITIES.
- Customer warrants that it is the owner or the authorized agent of the owner of the Goods and accepts the terms of this Agreement for itself and/or as agent for, and on behalf of, the owner. Customer is responsible for adequately packaging the Goods so as to ensure safe transportation with ordinary care in handling. Proper packaging must accurately protect any articles susceptible to damage as a result of conditions encountered in transportation, including changes in temperature or atmospheric pressure. Customer warrants that it is in compliance with all applicable laws relating to the carriage of goods, including but not limited to, those regarding dangerous or hazardous materials. By tendering a shipment to MAGNO, Customer certifies to MAGNO that it has properly classified, described, packaged, marked, and labeled the named articles and such are in proper condition for transportation according to applicable laws and regulations, including applicable regulations of the Transportation Security Administration.
- B. With respect to imports, at a reasonable time prior to entry of the Goods to the applicable import country, Customer shall furnish to MAGNO invoices in proper form together with other documents necessary or useful in the preparation of the customs entry, and such further information as may be sufficient to establish the dutiable value, classification and admissibility of the Goods pursuant to applicable law, regulation or ruling. If Customer fails to timely furnish all of such information or documents, or if such information or documents is inaccurate or incomplete, MAGNO shall be obligated to use its best judgment in connection with the shipment.
- C. With respect to exports, at a reasonable time prior to the exportation of the Goods, Customer shall furnish to MAGNO 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 country of origin and the country of destination of the goods.
- D. Notwithstanding any provision to the contrary, MAGNO shall not be obliged to incur any expense, guarantee payment or advance any money in connection with the importing, forwarding, transporting, insuring, storing or coopering of the Goods, unless the same is previously provided to MAGNO by Customer on demand. MAGNO shall be under no obligation to advance freight charges, customs duties or taxes on any shipment, nor shall any advance by MAGNO be construed as a waiver of the provisions hereof. Notwithstanding any payment instructions given to MAGNO, Customer shall be and remain at all times responsible for all fees, costs, and charges of any kind hereunder if MAGNO is unable to collect such charges (including special handling fees, duties or taxes which have been advanced) from consignee or other third party within forty-five (45) days after delivery of the Goods or tendering of the Goods for delivery, as the case may be.
- E. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against MAGNO for freight charges, duties, fines, penalties, liquidated damages or other monies due in connection with a shipment of Goods hereunder, Customer agrees to indemnify, defend and hold MAGNO harmless from and against any amount MAGNO may be required to pay such carrier, other person or governmental agency, together with reasonable expenses, including attorney’s fees, incurred by MAGNO in connection with defending such claim or legal action and obtaining reimbursement from Customer. The confiscation or detention of the Goods by any governmental authority shall not affect or diminish the liability of Customer to MAGNO to pay all freight charges, duties, fines, penalties, liquidated damages or other monies due promptly on demand.
- F. Customer shall provide MAGNO with any handling, packing and storage instructions in connection with any hazardous materials prior to MAGNO accepting tender of the same for shipment. Customer hereby agrees to fully indemnify, defend and hold harmless MAGNO and its officers, directors and employees from and against any and all claims, liabilities, fines, penalties, damages, costs and expenses (including, but not limited to, attorney’s fees and court costs) arising out of (a) MAGNO’s issuance of bills of lading, air waybills, ocean bills of lading, delivery orders, FAA Security Endorsements or other transportation document(s) for hazardous material shipments on behalf of Customer pursuant to this Agreement, where the information on the transportation documents accurately reflected information received by or provided to MAGNO on behalf of Customer; and (b) MAGNO’s handling, packing or storage of hazardous material shipments on behalf of Customer, where MAGNO materially complied with the safe handling, packing and storage instructions received by or provided to MAGNO on behalf of Customer in connection therewith.
- 5. MAGNO’S RESPONSIBILITIES.
- A. MAGNO agrees to provide the freight forwarding services hereunder on a non-exclusive basis, in a good and workmanlike manner. MAGNO represents and warrants that it holds all necessary licenses, permits and/or other authorizations necessary to provide the freight forwarding services described herein, and is duly qualified and authorized to perform its obligations under this Agreement.
- B. MAGNO will require that any carriers engaged by MAGNO to transport Goods hereunder will (i) have in place all insurance policies required under applicable law, and (ii) remain duly qualified and authorized by license, permit or other authorization issued by the applicable governmental authority to lawfully transport Goods as described in this Agreement. Customer will have no obligation to directly pay freight charges to any such carrier relating to the transportation of Goods hereunder.
- C. MAGNO will comply with all applicable laws and regulations pertaining to the performance of the freight forwarding services. MAGNO will provide Customer with activity reports and other reports as reasonably requested by Customer from time to time.
- D. MAGNO shall perform the services hereunder as an independent contractor. MAGNO, its agents and employees shall under no circumstances be deemed to be agents, employees or representatives of Customer. Customer shall have no responsibility for the acts and omissions of MAGNO’s employees, agents and contract carriers, and shall not have control and direction of the persons operating equipment, loading or unloading, or otherwise engaged in providing services hereunder. Similarly, in no event shall any person engaged or employed by Customer be considered an employee or agent of MAGNO.
- 6. LIMITATION OF LIABILITY & DECLARED VALUE.
- With respect to domestic full truckload shipments, except to the extent caused by its own negligence or willful misconduct or the negligence or willful misconduct of its employees or agents, MAGNO shall not be liable for any loss of or damage to any shipment. In the event of any liability for loss of or damage to any such shipment, MAGNO’s liability per shipment shall be limited (i) to the actual value of the goods lost or damaged, not to exceed $150,000 per occurrence.
- In connection with Domestic air and less-than-truckload shipments, MAGNO shall in no event be liable for any loss, damage, expense or delay to the Goods for any reason, including as a result of the negligence or fault of MAGNO, for any amount in excess of $.50/lb of the Goods in question, $50 per shipment, or the invoice value of the Goods in question, whichever is less. Partial loss or damage shall be prorated on this basis.
- With respect to international air shipments, MAGNO’s liability per shipment shall be limited in accordance with any applicable international carriage of goods convention. In the event that no international convention is applicable, MAGNO’s liability per international air shipment shall be limited to $20 per KG.
- With respect to maritime Shipments, as to any portion of the carriage that is governed by the United States Carriage of Goods by Sea Act, MAGNO’s liability shall be limited to $500 per packing unit, or for goods not shipped in packages, per customary freight unit. In all other cases involving maritime shipments, MAGNO’s liability per shipment shall be limited in accordance with any applicable convention, including the rules set forth in the Hague-Visby Rules as amended by the Brussels Protocol of 1968, or the amount set forth in the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (“Rotterdam Rules”), signed September 23, 2009 at such time as the Rotterdam Rules come into effect; in the event no convention is applicable, MAGNO’s liability shall be limited to $500 per container.
- With respect to warehousing services, other than warehousing services incidental to carriage, except to the extent due to the gross negligence or willful misconduct of MAGNO, MAGNO’s liability shall be limited to $.50 per pound.
- With respect to all shipments of Goods, Customer has the option to purchase insurance or declare a higher value per shipment by paying additional compensation to increase the limits of liability as indicated above. SHIPMENTS WILL NOT BE INSURED OR HIGHER VALUE WILL NOT BE DECLARED UNLESS REQUESTED BY CUSTOMER IN WRITING AND CONFIRMED BY MAGNO IN WRITING.
- NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THE GOODS OR THE SERVICES RENDERED HEREUNDER EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
- The parties expressly waive any and all rights and remedies allowed under 49 U.S.C. § 14101 to the extent that such rights and remedies conflict with this Agreement.
- The provisions of this Section shall survive termination or expiration of this Agreement.
- 7. FILING A CLAIM.
As to all shipments of Goods hereunder, claims for loss, damage, delay or non-delivery must be made within two hundred seventy (270) days of the shipping date, or such claims shall be deemed to be waived. Original shipping carton and contents must be retained by consignee for inspection. Acceptance of Goods by recipient without noting damage on the delivery notice shall be conclusive evidence that such Goods were delivered in good condition and without damage.
- As to all International shipments, in no event shall MAGNO be liable for any act, omission or default by it in connection with an exportation or importation of Goods, unless a claim therefor shall be presented to MAGNO within one hundred eighty (180) days from date of exportation or importation of the Goods in a written statement to which sworn proof of claim shall be attached.
- All claims for overcharge shall be deemed waived if not presented to MAGNO within 180 days of the original invoice date. Notwithstanding the foregoing, if an account is more than 60 days past due, MAGNO may apply overpayments, or other credits owed to Customer, against the oldest dated invoices.
- All claims are to be submitted in writing by certified mail to the following physical and/or email address: Magno International, LP, 11014 NW 33rd St., Suite 100, Doral, FL 33172, Attn: Claims Department, EVPOperations@magnointl.com.
- 8. RIGHT TO INSPECT. MAGNO may open and inspect Goods at any time prior to delivery, including pursuant to the security requirements of the Transportation Security Administration of the US government.
- 9. LIENS. MAGNO shall have a general lien on any and all Goods and other property (and documents relating thereto) of Customer in MAGNO’s possession, custody or control or en route, for all claims for charges, expenses or advances incurred by MAGNO in connection with any shipments of Customer, and if such claim remains unsatisfied for thirty (30) days or more after demand for its payment is made, MAGNO may sell at public auction or private sale, upon not less than ten (10) days written notice to Customer, sent certified or registered mail with return receipt requested, such Goods, or so much thereof as may be necessary to satisfy such lien and all reasonable costs incurred by MAGNO in exercising its rights hereunder and selling such Goods, and apply the net proceeds of such sale to the payment of the amount due to MAGNO. Any surplus from such sale shall be transmitted to Customer, and Customer shall be liable for any deficiency in the sale.
- 10. PROOF OF DELIVERY. MAGNO will use reasonable commercial efforts to provide a copy of the signed delivery receipt as proof of delivery when requested by the Customer, consignee, consignor, or any other third party, including a third party payee. Customer agrees that digitized signature or computer record of delivery receipt is acceptable as proof of delivery of any shipment hereunder.
- 11. APPLICABLE ROUTING. MAGNO is authorized to select and engage carriers, truckers, forwarders, customhouse brokers, agents, warehousemen and others as may be required, to transport, store, deal with and deliver the Goods, all of whom shall be considered as agents of Customer. The Goods may be entrusted to such parties 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 carriers, truckers, forwarders, customhouse brokers, agents, warehousemen and others. Customer hereby authorizes MAGNO to use any alternative mode of transport for any reason in order to attempt to meet the service levels requested by Customer.
- 12. QUALIFIED ACCEPTANCE OF SHIPMENT. MAGNO reserves the right to reject a shipment at any time when such shipment is from an unknown customer, such shipment may cause damage to or delay other shipments, equipment or personnel, if transportation of such shipment is prohibited by applicable law or regulation, or such shipment otherwise does not comply with the terms of the applicable bill of lading.
- 13. DIMENSIONAL WEIGHT. Shipment weight is calculated as the higher of “actual weight” or “dimensional weight”.
- 14. INSURANCE. During the term of this Agreement, MAGNO shall maintain the following minimum insurance in full force and effect:
Workers’ Compensation insurance in such amounts as may be required by law or regulation;
- Commercial General Liability insurance in amounts not less than $1,000,000 per occurrence; and
- With respect to full truckload shipments referenced in Section 6(A), MAGNO shall maintain Motor Truck Cargo Legal Liability insurance, with limits of $150,000 per occurrence;
- With respect to shipments referenced in Section 6(B), 6(C), 6(D) and 6(E), MAGNO shall maintain Cargo and warehouse legal liability insurance in amounts not less than $1,000,000 per occurrence
- Employer’s Liability insurance in amounts not less than $1,000,000 per accident or bodily injury by accident, $1,000,000 policy limit by disease, and $1,000,000 per employee for bodily injury by disease.
- Certificates of Insurance evidencing the above policies will be delivered to Customer within fifteen (15) days of written request. Customer will be given ten (10) days notice prior to the cancellation of any such policy.
- 15. FORCE MAJEURE. Neither Party shall not be liable for default in the performance or discharge of any duty or obligation under this Agreement, or for loss, damage, delay or demurrage, when caused by acts of God, civil or military authority, public enemy, fire, floods, winds, storms, labor disorders, strikes, work stoppages or other labor trouble, accidents, riots, civil commotion, closing the public highways, terrorist acts or threats, governmental interference or regulations and other contingencies, similar to the foregoing, beyond its reasonable control.
- 16. TERM AND TERMINATION.
- The term of this Agreement shall commence on the Effective Date and continue until terminated as provided herein (the “Term”).
- Notwithstanding the foregoing, either party (the “Terminating Party”) may terminate this Agreement at any time during the Term in the event that the other party (the “Defaulting Party”) has breached the terms of this Agreement or otherwise failed to perform to perform any obligation hereunder, upon written notice to the Defaulting Party, provided that the Terminating Party has previously provided written notice of such breach or failure to the Defaulting Party and such Defaulting Party has failed to cure such breach or remedy such failure within fourteen (14) days (the “Cure Period”) after receipt of such notice. Notwithstanding the foregoing, no Cure Period shall be provided with respect to payment of any sums due hereunder.
- In addition, the either Party may terminate this Agreement without cause nor penalty upon not less than thirty (30) days prior written notice to the other party.
- Termination of this Agreement shall not affect the rights and obligations of the parties accruing prior to such termination, and in the event any shipment of Goods is in progress as of the date of termination, the Agreement shall be deemed to survive with respect thereto until all obligations of the parties with respect to such shipment(s) have been satisfied.
- 17. NOTICE. Any written notices issued by one party to another party pursuant to this Agreement shall be sent by (a) courier, or (b) certified mail (return receipt requested), to the other party at its address listed below. Notices shall be deemed to have been given when delivered to such party at its address set forth below. Notwithstanding any provision to the contrary herein, any party may change its address for notice by written notice to the other party.
Magno International, LP ___________________________
11014 NW 33rd St., Ste 100 ___________________________
Doral, FL 33172 ___________________________
- 18. ASSIGNMENT. Neither party may assign this Agreement or the rights and obligations set forth herein, without the other party’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, MAGNO may subcontract the services or any portion thereof to a third party in its ordinary course of business.
- 19. ATTORNEY’S FEES. In the event of any controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorney’s fees, and costs.
- 20. RESPONSIBLE PARTIES. In the event a claim or suit is brought against anyone participating in the performance of the freight forwarding services described herein other than MAGNO, that party is entitled to all exceptions, exemptions, defenses, immunities, limitations of liability, privileges and conditions granted or provided herein or in any applicable Tariff, and any law governing it or incorporated by reference into it as if the protected party were a party thereto. These protected parties include, but are not limited to, subcontractors, stevedores, terminals, watching services, participating land, air, or sea carriers and their direct or indirect subcontractors. Each of these parties is a third party beneficiary of this Agreement for the purposes described herein.
- 21. GOVERNING LAW. Except where superseded by applicable federal or international law or treaty, this Agreement and all claims or causes of action arising hereunder shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflicts of laws provisions, and in the event of a dispute arising under or with respect to this Agreement, the parties hereby submit to exclusive jurisdiction in the federal or state courts located in Harris County, Texas, and agree that venue is proper and convenient in such forum.
MISCELLANEOUS. The failure of either party to enforce any of the rights given to it under this Agreement shall not be construed as a waiver of the right of such party to exercise any such right as to any subsequent violations hereof. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the subject to the provisions of Section 2 hereof, such provision shall be severed from this Agreement and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between the parties hereto with respect to the matters set forth herein. Any change, addition, deletion or other modification to this Agreement shall be null and void unless in writing and signed by both parties hereto.