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.
A. 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.
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.