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BILL OF LADING – TERMS AND CONDITIONS

  1. Clause Paramount

(a) Except as otherwise provided herein this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America (COGSA) approved April 16, 1936, which shall be deemed to be incorporated herein. The provisions stated in said Act ( except as otherwise specifically provided herein) shall govern before loading on and after discharge from the vessel and throughout the entire time the Goods are in the custody of the carrier.

If COGSA is not applicable, the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated at Brussels, 25 August, 1924 (Hague Rules) as amended by the Protocol to Amend the International Convention, signed at Brussels on 23 February, 1968 (Hague-Visby Rules) willgovern. The applicable Hague, Visby, COGSA rule shall apply through the time when the Goods are in the actual or constructive custody of the Carrier, (b) The Carrier shall be entitled to the full benefit of and right to all limitations of, or exceptions from liability authorized by any provision of Sections 4281 to 4288 inclusive, of the Revised Statutes of the United States and amendments thereto and of any other provisions of the laws of the United States or of any other country whose laws shall apply.

  1. Definitions

(a) “Carrier” means the Carrier named on the face side hereof, the vessel, her owner, Master, operator, demise charterer and if bound hereby, the time charterer, and any substitute Carrier whether the owner, operator, charterer or Master shall be acting as carrier or bailee, (b) “Vessel” means and includes the ocean vessel on which the Goods are shipped, named on the face hereof, or any substitute vessel, also any feedership, ferry, barge, lighter or any other watercraft used by the Car- rier in the performance of this contract, (c) “Merchant” means and includes the shipper, the consignee, the receiver, the holder of this bill of lading, the owner of the Goods or person entitled to the possession of the Goods and the servants or agents of any of these, (d) “Charges” means and includes freight and all expenses and money obligations incurred and payable by the Merchant, (e) “Goods” means and includes the cargo received from the shipper and described on the face side hereof and any Container not supplied by or on behalf of the Carrier, (f) “Container” means and includes any container, van, trailer, transportable tank, flat, pallet or any similar article of transport, (g) “Person” means and includes any individual, corporation, partnership or other entity as the case may be. (h) “Participating

Carrier or carriage” means and shall include any other water, land or air carrier performing any stage of the Combined Transport.

  1. Subcontracting

The carrier shall be entitled to sub-contract on any terms the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by the Carrier in relations to the Goods. As to through transportation, the Carrier undertakes to procure such services as necessary and shall have the right at its sole discretion to contact any mode of land, sea or air transportation and to arrange participation by other Carriers to accomplish the combined transport from place of receipt to place of delivery. Whenever any stage of the combined transport is accomplished by any land or air Carrier or any other water carrier, each such stage shall be controlled according to any law compulsorily applicable to such stage and according to the contracts, rules and tariffs of each participating Carrier, the same as if such contracts, rules and tariffs were fully set forth herein. It is understood and agreed that other than the said Carrier no person whatsoever (including the Master, officers and crew of the vessel, all agents and all subcontractors) is or shall be deemed to be liable with respect to the goods as carrier, bailee or otherwise howsoever, in contract or in tort. If, however, it should be adjudged that any other than said carrier is under any responsibility with respect to the Goods, all limitations or exonerations from liability provided by law or by the terms hereof shall be available to such other persons as herein described. In contracting for the foregoing exemptions, limitations and exonerations from liability, the Carrier is acting as agent and trustee for and on behalf of all persons described above, all of whom shall to this extent be deemed to be a party to this contract evidenced by this Bill of Lading, it being always understood that said beneficiaries are not entitled to any greater or further exemptions, limitations or exonerations from liability than those that the Carrier has under this Bill of Lading in any given situation.

  1. Determination of Loss.

Subject to all rights, privileges and limitations of and exonerations from liability granted to the ocean carrier under this Bill of Lading or by law, any liability   by the respective participating carriers for loss or damage to the Goods or packages carried hereunder shall be governed by the following: (a) If loss or damage occurs while the goods or packages are in the custody of the ocean carrier, only the ocean carrier shall be responsible therefor, and any liability of the ocean carrier shall be determined by the terms and conditions of this Bill of Lading and any law compulsorily applicable, (b) If loss or damage occurs while the Goods or packages are in the custody of a participating domestic or foreign Carrier, only the participating domestic or foreign Carrier(s) shall be responsible therefor, and any liability of such participating domestic or foreign Carrier(s) shall be determined, in respective order, by the terms, conditions and provisions of the applicable participat- ing domestic or foreign Carrier’s Bill(s) of Lading, whether issued or not, tariff(s) and law compulsorily applicable in the circumstances, (c) Notwithstanding subdivision (a) and (b) hereof, it is contemplated that the Goods or packages will from time to time be carried in through transportation that will include inland transportation within the United States by Railroad, Truck and sea carriage by one or more of the other Carriers above denned. (When used on or endorsed on

this Bill of lading the words “on board” shall mean and include on board the original carrying Vessel when the Goods or packages are being transported from a foreign port or place to the continental United States, but when the Goods or packages are being transported from the continental United States to a foreign port or place “on board” shall mean and include on board a rail car operated by the originating carrier and enroute by rail to the port of loading for loading on board the Carrier’s or participating Carrier’s vessel.) (d) If loss or damage occurs after receipt of the Goods or packages hereunder, and it cannot be determined from

the records of the ocean Carrier or participating domestic or foreign Carrier(s) whether such damage or loss occurred during ocean domestic or foreign carriage, it shall be conclusively presumed that the loss or damage occurred on board the vessel and while the Goods or packages were in the custody of the ocean Carrier, (e) At all times when the Goods or packages are in the custody of the above mentioned participating domestic or foreign Carriers, such Carriers shall be entitled to all the rights, defenses, exceptions from or limitations of liability and immunities of whatsoever nature referred to or incorporated herein applicable or granted to the Carrier as herein defined, to the full extent permitted to such domestic and foreign Carriers under this Bill(s) of Lading, tariffs incorporated herein and any other laws applicable or relating thereto, provided however, that nothing contained in this Bill of Lading shall be deemed a surrender by these domestic or foreign Carri- ers of any of their rights and immunities or an increase of any of their limitations of and exoneration from liability under their said Bill(s) of Lading, tariffs or laws applicable or relating to said carriage, (f) In making any arrangement for transportation by participating domestic or foreign Carriers of the Goods or packages carried hereunder, either before or after ocean carriage, it is understood and agreed that the ocean Carrier acts solely as agent of the Merchant, without any other responsibility whatsoever, and it assumes no responsibility as Carrier for such domestic or foreign transportation, (g) Notice of loss or damage and claim against the ocean Carrier, where applicable, shall be given to the ocean Carrier and suit commenced as provided for in Clauses 27 and 28 hereof. Notice of loss or damage against the participating domestic or foreign Carrier(s) where applicable, shall be filed with the participating domestic or foreign Carrier(s) and suit commenced

as provided for in the terms, conditions and provisions of said Carrier(s) Bill(s) of Lading or by law applicable thereto. It is understood by the Merchant that such terms conditions and provisions as they pertain to notice of and claim for, loss or damage and commencement of suit, contain different requirements than those requirements pertaining to ocean Carriage as contained in Notice of Loss and Time Bar section hereof.

  1. Tariff.

The goods carried hereunder are subject to all the terms and provisions of Carrier’s applicable Tariff or Tariffs on file with the federal Maritime Commission or any other regulatory body which governs a particular portion of this carriage, and the terms and provisions of the said Tariff or Tariffs are hereby incorporated herein as part of the Terms and Condition of this Bill of Lading. Copies of the relevant provisions of the applicable Tariff or Tariffs are obtainable from the Carrier, Federal Maritime Commission or other regulatory body upon request. In the event of any conflict between the terms and provisions of such Tariff or Tariffs and the Terms and Conditions of this Bill of Lading, this Bill of Lading shall prevail.

  1. Merchant Warranty.

The merchant warrants that in agreeing to the Terms and Conditions hereof, he is, or has the authority of the person owning or entitled to the possession of the Goods and this Bill of Lading.

  1. Right of Inspection.

The Carrier shall be entitled but under no obligation to open any Container at any time and to inspect the contents. If it thereupon appears that the contents    of any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or its contents or any part thereof, the Carrier may abandon the transportation thereof and/or take any measures and/or incur any reasonable ad- ditional expenses to carry or to continue the carriage or to store the same ashore, afloat, under cover or in the open, at any place, which storage shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred.

  1. Containers and Stowage.

Carrier may containerize any Goods or packages. Containers may be stowed on deck or under deck and when so stowed shall be deemed for all purposes to be stowed under deck, including for General Average and U.S. Carriage of Goods by Sea Act. 1936 and similar legislation. Deck cargo (except goods carried in containers on deck) and live animals are received and carried solely at Merchant’s risk (including accident or mortality of animals) and the Carrier shall not in any event be liable for any loss or damage thereto arising or resulting from any matter mentioned in the United States Carriage of Goods by Seas Act or from any other cause whatsoever not due to the fault of the Carrier, any warranty of seaworthiness in the premises being hereby waived, and the burden of proving liability being in all respects upon the Merchant. Except as provided above, such shipments shall be deemed Goods and shall be subject to all terms and provisions of this Bill of Lading relating to Goods.

  1. Special Containers.

Special containers with heating or refrigeration units will not be furnished unless contracted for expressly in writing at time of booking and, when furnished, may entail an increased freight rate or change. Shippers shall advise Carrier of desired temperature range when delivering Goods to Carrier, and Carrier shall exercise due diligence to maintain the temperature within a reasonable range while the containers are in its custody or control. The Carrier does not however accept any responsibility for the functioning of heated or refrigerated containers not owned or leased by Carrier.

  1. Scope of Voyage.

The scope of the voyage herein contracted for shall include usual or customary or advertised ports of call whether named in this contract or not, also ports in or out of the advertised geographical or usual route or order, even though in proceeding thereto, the vessel may sail beyond the port of discharge named herein or in a direction contrary thereto or return to the original port, or depart from the direct or customary route and includes all canals, straits, and other waters. The vessel may call at any port for the purposes of the current, prior or subsequent voyages. The vessel may omit calling at any port whether scheduled or not and may call at the same port more than once, may discharge the goods during the first or subsequent call at the port of discharge, may for matters occurring before or after load- ing, and either with or without the goods on board, and before or after proceeding towards the port of discharge, adjust compasses, drydock with or without cargo on board, stop for repairs, shift berths, make trial trips or test, take fuel or stores, remain in port, be on bottom, aground or at anchor, sail with or without pilots, tow and be towed, and save or attempt to save life or property, and all of the foregoing are included in the contract voyage. The vessel may carry contraband, ex- plosives, munitions, warlike stores, hazardous cargo, and sail armed or unarmed, and with or without convoy. The Carrier’s sailing schedules are subject tochange without notice both as to the sailing date and date of arrival. If this is a Through Bill of Lading, no Carrier is bound to transport the shipment by any particular train, truck, aircraft, vessel or other means of convey ance/or in time for any particular market or otherwise. No carrier shall be liable for delay.

  1. Voyage Frustration.

If at any time the performance of the contract evidenced by this Bill of Lading is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage of whatsoever kind which cannot be avoided by the exercise of reasonable endeavors, the Carrier (whether or not the transport is commercial) may without notice to the Merchant treat the performance of this contract as terminated and place the Goods or any part of them at the Merchant’s disposal at any place or port which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The carrier shall nevertheless be entitled to full freight and charges on Goods received for transportation and the Merchant shall pay any additional costs of carriage to and delivery and storage

at such place or port.

  1. Safe Berth.

If the Carrier makes a special agreement, whether by stamp hereon or otherwise, to deliver the Goods at a specified dock or place, it is mutually agreed that such agreement shall be construed to mean that the Carrier is to make such delivery only if, in the sole judgment of the Carrier the vessel can get to be at, and leave said dock or place always safely afloat and only if such dock or place is available for immediate receipt of the Goods and that otherwise provided in this Bill of Lading, whereupon all responsibility of Carrier shall cease.

  1. Loading/Discharge.

The port authorities are hereby authorized to grant a general order for discharging immediately upon arrival of the vessel and the Carrier without giving notice either on arrival or discharge, may immediately upon arrival of the vessel at the designated destination, discharge the goods continuously, Sundays and holidays included, at all such hours by day or by night as the Carrier may determine no matter what the state of the weather or custom of the port may be. The Carrier shall not be liable in any respect whatsoever if heat or refrigeration or special cooling facilities shall not be furnished during loading or discharge or any part of   the time that the good are upon the wharf, craft or other loading or discharging place. Landing and delivery charges and pier dues shall be at the expense of the Goods unless included in the freight herein provided for. If the Goods are not taken away by the consignee by the expiration of the next working day after the goods are at his disposal, the Goods may, at Carrier’s option and subject to the Carrier’s lien be sent to store or warehouse or be permitted to lie where landed, but always

at the expense and risk of the Goods. The responsibilities of the Carrier in any capacity shall altogether cease and the Goods shall be considered to be delivered and at their own risk and expense in every respect when taken into the custody of Customs or other Authorities, or into that of any municipal or government concessionaire or depository. The Carrier shall not be required to give any notification of disposition of the Goods, except as may be otherwise provided in this Bill of Lading.

  1. Lightering.

At ports or places where, by local law, authorities, or custom, the Carrier is required to discharge cargo to lighters or other craft where it has been so agreed, or where wharves are not available which the ship can get to, be at, or leave always safely afloat, or where conditions prevailing at the time tender discharge at a wharf dangerous, imprudent, or likely to delay the vessel, the Merchant shall promptly furnish lighters or other craft to take delivery alongside the ship the risk and expense of the Goods. If the Merchant fails to provide such lighters or other craft, Carrier, acting solely as agent for the Merchant, may engage such lighters, or other craft, at the risk and expense of the Goods. Discharge of the Goods into such lighters or other craft shall constitute proper delivery, and any further responsibility of Carrier with respect to the goods shall thereupon terminate.

  1. GovernmentOrder.

The Carrier shall have liberty to comply with any order or directions or recommendations in connection with this transport under this contract of carriage given by any Government or Authority or anyone acting or purporting to act on behalf of such Government or Authority, or having, under the terms of the mortgage or insurance on the vessel or other transport, the right to give such orders, directions or recommendations. Discharge or delivery of the Goods in accordance with the said order, directions or recommendations shall be deemed a fulfillment of the contract. Any extra expense incurred in connection with the exercise of the Carrier’s liberty under this clause shall be paid by the Merchant in addition to freight and charges.

  1. Right to Offload.

In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of or during the combined transport, which in the judgment of the Carrier or the Master is likely to give rise to risk if capture, seizure, detention, damage, delay or disadvantage or loss to the Carrier of any part of the Goods to make it unsafe, imprudent or unlawful for any reason to receive, keep, load, or carry the goods, or commence or proceed on or continue the transport or to enter or discharge the goods or disembark passengers at the port of discharge, or the usual or agreed or intended place of discharge or delivery, or to give rise to delay, or difficulty in proceeding by the usual or intended route, the Carrier or the Master may decline to receive, keep, load or carry the Goods or may devan the container(s) contents or any part thereof and may require the Merchant to take delivery of the Goods at the place of receipt or any other point in the combined trans- port and upon failure to do so, may warehouse the Goods at the risk and expense of the Goods, or the vessel, whether or not proceeding toward or entering or at- tempting to enter a port of discharge, or reaching or attempting to reach a usual place of discharge therein or attempting to discharge the shipment may discharge the Goods and/or devan the contents of any container(s) at another port, lighter craft, other place or may forward or transship them as provided in this Bill of Lading, or the Carrier or the Master may retain the Goods, vanned or unvanned, on board until the return of the vessel to the port of loading or to the port of discharge or until such time as the Carrier or the Master thinks advisable and discharge the Goods at any place whatsoever as herein provided. The Carrier or Master is not required to give notice of such devanning or of discharge of the Goods or of the forwarding thereof as herein provided. When the Goods are discharged from the ship as herein provided, such shall be at the risk and expense of the Goods. Such discharging shall constitute compete delivery and performance under this contract and the Carrier shall be free from any further responsibility, unless it be shown that any loss or damage to the Goods arose from Carrier’s negligence in the discharge and delivery as herein provided, the burden of establishing such negligence being on the Merchant. For any service rendered to the Goods as herein above provided or for any delay or expense to the vessel caused as a result thereof, the Carrier shall be entitled to a reasonable extra compensation, and shall have a lien on the goods for such charges. Notice of disposition of the Goods shall be mailed to shipper or consignee named in this Bill of Lading. Goods shut out from the vessel named herein for any cause may be forwarded on a subsequent vessel of this type or, at Carrier’s option, on a vessel of another type or by other mode of transportation.

  1. Delay.

Whenever the Carrier or Master may deem it advisable, or in any case where goods are destined for port(s) or place(s) at which the vessel or participating carriers will not call the Carrier may, without notice forward the whole or any port of the shipment, before or after loading at the original port of shipment, or any other place or places even though outside the scope of the voyage or the route to or beyond the of discharge or the destination the Goods, by water, by land, or by air, or by any combination thereof, whether operated by the Carrier or others and whether departing or arriving or scheduled to depart or arrive before or after the ship expected

to be used for the transportation of the shipment. The Carrier may delay forwarding awaiting a vessel or conveyance in its own service shipment is delivered to another Carrier or to a lighter. Port Authority, warehouseman or other bailee for transshipment, the liability of this Carrier shall absolutely cease when the Goods are Goods again come into its exclusive possession and the responsibility of this Carrier during any such period shall be that of an agent of the Merchant and this Carrier shall be without any other responsibility whatsoever. The carriage by any transshipping or on Carrier and all transshipment or forwarding shall be subject to all the terms whatsoever in the regular form of bill of lading, consignment note, contract or other shipping document at the time by the Carrier performing such transshipment or forwarding.

  1. Correctness.

Notwithstanding the foregoing, the Carrier shall neither be liable therefor, nor concluded as to, the correctness of any such marks, descriptions or representations. When any cargo unit owned or leased by Carrier is packed or loaded by shipper or is agent, or discharged by consignee or its agent, shipper, consignee, receiver, holder of this Bill of Lading, owners of the Goods and person entitled to the possession of the Goods shall be and remain liable, jointly and severally, for any loss or damage to the cargo unit during such loading or discharge, howsoever occurring, until the cargo unit is returned to Carrier’s custody and, at tariff rates, for any delay beyond the time allowed for such loading or discharge, and for any loss, damage or expense incurred by Carrier as a result of the failure to return the cargo unit to the Carrier in the same sound condition and state of cleanliness as when received by shipper. Such loss, damage, expense or delay shall constitute lien on the Goods. Where a cargo unit is to be unpacked or unloaded by consignee or its agent, consignee or its agent shall promptly unpack or unload such cargo unit and take delivery of its contents, irrespective of whether the Goods are damaged or not Carrier shall not be liable for loss or damage caused to the Goods by or during such unpacking or unloading.

  1. Marks and Merchant Warranties

When containers, vans, trailers, transportable tanks, flats, palletized units, and all other packages (all hereinafter referred to generically as “cargo units”) are not packed or loaded by Carrier, such cargo units shall be deemed shipped as “Shipper’s weight, load and count.” Carrier has no reasonable means of checking the quantity, weight, condition or existence of the contents thereof, does not represent the quantity, weight, condition or existence of such contents, as furnished by the shipper and inserted in this Bill of Lading to be accurate, and shall not be liable for nonreceipt or misdescription of such contents. Carrier shall have no liability for ) the securing and/or stowage of contents of such cargo units or for loss or damage caused thereby or resulting therefrom, or for the physical suitability or structural adequacy of such cargo units properly to contain their contents. The Merchant represents, guarantees and warrants that the goods are properly described, marked, packed and suitable for transport; that they are shipped in compliance with all applicable laws and statutes; that they are not hazardous in any way to other cargo, persons or conveyances; and the Merchant agrees to indemnify defend and hold harmless carrier for any and all damage, loss, expense, fine, penalty, personal injury or death resulting from a breach of said representations, guarantees and warranties, even without fault of the Merchant. Merchant shall be responsible for any loss, damages, expense or delay to a container or cargo unit supplied by carrier and carrier shall have a lien on goods for same.

  1. Liens.

Carrier shall have a general lien on any and all property (and documents relating thereto) of Merchant in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by Carrier in connection with any shipments of Merchant. Carrier may sell at public auction or private sale, upon 10 days written notice, registered mail to Merchant, the goods, wares and/or merchandise or so much as may be necessary to satisfy such lien and the costs of recovery, including the value of management time and effort, and apply the net proceeds of such sale to the payment of the amount due Carrier. The surplus, if any, from such sale shall be transmitted to Merchant, and Merchant shall be liable for any deficiency in the sale.

  1. Freight.

Freight shall be payable, at Carriers option, on actual gross intake weight or measurement or on actual gross discharge weight or measurement or on a value or other basis. Freight may be calculated on the basis of the particulars of the Goods furnished by the shipper herein. Full freight shall be paid on damaged and unsound goods. Full freight hereunder to place of delivery named herein and advanced charges (including on-Carrier’s) shall be considered completely earned on receipt of the Goods by the Carrier, whether the freight be stated or intended to be prepaid or to be collected at destination, and the Carrier shall be entitled to all freight and charges, extra compensation, demurrage, detention, General Average, claims and any other payments made and liability incurred with respect to the Goods, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever vessel, conveyance and/or cargo lost, damaged or otherwise, or the combined transport changed, frustrated or abandoned. In case of forced abandonment or interruption of the combined transport for any cause, any forwarding of the goods or any part thereof shall be at the risk and expense of the Goods. All unpaid charges shall be paid in full, without any offer, counterclaim or deduction in the currency of the place of receipt, or, at Carrier’s option, in the currency of the place of delivery at the demand rate of New York exchanges as quoted on day of arrival of the Goods at the place of delivery. The Merchant shall be jointly and severally liable to the carrier for the payment of all freight charges and the amount due to the Carrier, and for any failure of either or both to perform his or their obligations under the provisions of this Bill of Lading, and they shall indemnify the Carrier against, and hold it harmless from, all liability, loss, damage and expense which the Carrier may sustain or incur arising or resulting from any such failure

of performance by the Merchant. Any person, firm or corporation engaged by any party to perform forwarding services with respect to the cargo shall be considered the exclusive agent of the Merchant for all purposes and any payment of freight to such person, firm or corporation shall not be considered payment to the Carrier in any event. Failure of such person, firm or corporation to pay any part of the freight to the Carrier shall be considered default by the Merchant in the payment of the freight. The carrier shall have a lien on the Goods, and freight money and any documents relating thereof, which shall survive delivery, for all freight charges and damages of any kind whatsoever, and for the costs of recovering same, including expenses incurred in preserving this lien, and may enforce this lien by public or private sale and without notice. The shipper, consignee, receiver, holder of this Bill of Lading, owner of the Goods and person entitled to the possession of the Goods and their principals shall be jointly and severally liable to the Carrier for the payment of all freight charges and damages as aforesaid and for the performance of the obligations of each of them hereunder.

  1. Fire.

Neither the Carrier nor any corporation owned by, subsidiary to or associated or affiliated with the Carrier shall be liable to answer for or make good any loss or damage to the goods occurring at any time and even though before loading on or after discharge from the ship, by reason or by means of any fire whatsoever, unless such a fire shall be caused by its design or neglect, or by its actual fault or privity. In any case where this exemption is not permitted by law, Carrier shall not be liable for loss or damage by fire unless shown to have been caused by Carrier’s negligence.

  1. General Average; New Jason Clause

(a) General average to be adjusted, stated and settled at port or place elected by Carrier or its connecting carrier according to York Antwerp Rules 1994 or any amendment thereto and as to matters not provided for by these Rules, according to the laws and usages of the place of adjustment, and in the currency selected by Carrier. The general average statement shall be prepared by the adjusters appointed by Carrier. Average agreement or bond and such cash deposit as Carrier may deem sufficient to cover the estimated contribution of Goods and any salvage and special charges thereon and any other additional securities as Carrier may require shall be furnished by Merchant to Carrier before delivery of Goods, (b) Carrier shall be under no obligation to exercise any lien for general average contribution due to Merchant, (c) In the event of accident, danger, damage or disaster before or after commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which. Carrier is not responsible by statute, contract or otherwise. Goods and Merchant shall jointly and severally contribute with Carrier in general average to the payment of any sacrifices, loss or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of Goods. If a salving ship is owned or operated by Carrier, salvage shall be paid for as fully and in

the same manner as if such salving ship belonged to strangers, (d) The both-to-Blame Collision Clause as adopted by the Baltic and International Maritime Counsel (BIMCO) is incorporated here by this reference, (e) For unforeseen charges not compensable in General Average, the Merchant shall reimburse the Carrier for such charges.

  1. Limitation.

Unless otherwise mandated by compulsorily applicable law, Carrier’s liability for compensation for loss of or damage to goods shall in no case exceed the amount of US$500 per package or per customary freight unit, unless Merchant, with the consent of Carrier, has declared a higher value for the goods in the space provided on the front of this Bill of Lading and paid extra freight per Carrier’s tariff, in which case such higher value shall be the limit of Carrier’s liability. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value. Where a container is stuffed by Shipper or on its behalf, and the container is sealed when received by Carrier for shipment, Carrier’s liability will be limited to US$500 with respect to the contents of each such container, except when the Shipper declares the value on the face hereof and pays additional charges on such declared value as stated in Carrier’s tariff. The freight charged on sealed containers when no higher valuation is declared by the Shipper is based on a value of US$500 per container. However, Carrier shall not, in any case, be liable for an amount greater than the actual loss to the person entitled to make the claim. Carrier shall have the option of replacing lost goods or repairing damaged goods.

  1. Notice of Claim and Time Bar

(a) Unless notice of loss or damage and the general nature of such loss or damage be submitted to Carrier in written at the port of discharge or place of delivery before or at the time of delivery of Goods or, if the loss or damage be not apparent, within 3 days after delivery. Goods shall be deemed to have been delivered as described in this Bill of Lading, (b) In any event whatsoever. Carrier shall be discharged from all liability in respect of non-delivery, misdelivery, delay, loss or dam- age unless suit is brought within one year after delivery of Goods or the date when Goods should have been delivered, (c) Notwithstanding above (b), with respect of any non-delivery, misdelivery, delay, loss or damage which may have occurred during other than Water Carriage, Merchant must file a claim with Carrier within 9 months after delivery of Goods or the date when Goods should have been delivered. Failing of claim on time will be discharge Carrier from all liability therefor.

  1. Valuables.

Gold, silver, specie, bullion or other valuables, including those named or described in Sec. 4281 of the Revised Statues of the United States, will not be received by the Carrier unless their true character and value are disclosed to the Carrier and a special written agreement therefore has been made in advance, and will not, in any case, be loaded or landed by the Carrier. No such valuables shall be considered received by or delivered to the Carrier until brought aboard the ship by the shipper and put in the actual possession of and a written receipt therefore is given by the Master or other officer in charge.

  1. Rust.

It is agreed that superficial rust, oxidation or any like condition due to moisture or condensation, is not a condition of damage but is inherent to the nature of the cargo, and acknowledgment of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation and the like did not exist onreceipt.

  1. Forum.

Nothing in this Bill of Lading shall operate to deprive the Carrier of any statutory protection or exemption from, or limitation of, liability, contained in the laws of the United States, or in the laws of any other country which may be applicable. This Bill of Lading shall be construed according to the laws of the United States and the Merchant agrees that any suits against the carrier shall be brought in the United States District Court for the Central District of California. The terms of this Bill of Lading shall be separable, and if any part of term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof. These terms and conditions are the complete agreement between the parties and may not be changed except by a writing signed by both parties.

SOLAS WEIGHT CERTIFICATION:

Merchant acknowledges that it is required to provide a signed weight verification setting forth the weights obtained on weighing equipment that meets national certification and calibration requirements for all cargo that is to be tendered to steamship lines. Merchant agrees that Carrier is entitled to rely on the accuracy of such weight verification and to counter-sign or endorse it as Carrier’s own weight verification to the steamship line carrying the cargo. The Merchant agrees that it shall indemnify and hold the Carrier harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable verification of the weight provided by Merchant or its agent or contractor on which the Carrier relies.

NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY

If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier’s limitation of liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a higher value is declared.

CONDITIONS OF CONTRACT

1. In this contract and the Notices appearing hereon:

CARRIER includes the air carrier issuing this air waybill and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage. SPECIAL DRAWINGRIGHT (SDR) is a Special Drawing Right as defined by the International Monetary Fund. WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage: the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929; that Convention as amended at The Hague on 28 September 1955; that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be. MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.

2.

  1. Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such carriage is not “international carriage” as defined by the applicable Conventions.
  2. To the extent not in conflict with the foregoing, carriage and other related services performed by each Carrier are subject to:
    1. applicable laws and government regulations;
    2. provisions contained in the air waybill, Carrier’s conditions of carriage and related rules, regulations, and timetables (but not the times of departure and arrival stated therein) and applicable tariffs of such Carrier, which are made part hereof, and which may be inspected at any airports or other cargo sales offices from which it operates regular services. When carriage is to/from the USA, the shipper and the consignee are entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage include, but are not limited to:
      1. limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods;
      2. claims restrictions, including time periods within  which shippers or consignees must file a claim or bring an action against the Carrier for its acts or omissions, or those of its agents;
      3. rights, if any, of the Carrier to change the terms of the contract;
      4. rules about Carrier’s right to refuse to carry;
      5. rights of the Carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate Carrier or aircraft and rerouting.

3.

The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.

4.

For carriage to which the Montreal Convention does not apply, Carrier’s liability limitation for cargo lost, damaged, or delayed shall be 19 SDR’s per kilogram unless a greater per kilogram monetary limit is provided in any applicable Convention or in Carrier’s tariffs or general conditions of carriage.

5.

  1. Except when the Carrier has extended credit to the consignee without the written consent of the shipper, the shipper guarantees payment of all charges for the carriage due in accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention), government regulations, orders and requirements.
  2. When no part of the consignment is delivered, a claim with respect to such consignment will be considered even though transportation charges thereon are unpaid.

6.

  1. For cargo accepted for carriage, the Warsaw Convention and the Montreal Convention permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge is required.
  2. In carriage to which neither the Warsaw Convention nor the Montreal Convention permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge is required.

7.

  1. In cases of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Carrier’s limit of liability shall be only the weight of the package or packages concerned.
  2. Notwithstanding any other provisions, for “foreign air transportation” as defined by the S. Transportation Code:
    1. in the case of loss of, damage or delay to a shipment, the weight to be used in determining Carrier’s limit of liability shall be the weight which is used to determine the charge for carriage of such shipment; and
    2. in the case of loss of damage or delay to a part of a shipment, the shipment weight in 7.2.1 shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.

8.

Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees, and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.

9. 

Carrier undertakes to complete the carriage with reasonable dispatch. Where permitted by applicable laws, tariffs and government regulations. Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the shipper. Carrier is authorized by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.

10.

Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage.

    1. In the case of loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made:
      1. in the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo;
      2. in the case of delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery.
      3. in the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by the Carrier.
    2. Such complaint may be made to the Carrier whose air waybill was used, or to the first Carrier or the last Carrier or to the Carrier, which performed the carriage during which the loss, damage or delay took place.
    3. Unless a written complaint is made within the time limits specified in 10.1 no action may be brought against the Carrier.
    4. Any rights to damages against the Carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

11.

Shipper shall comply with all applicable laws and government regulations of any country to or from which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to shipper’s failure to comply with this

12.

No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.

CUSTOMS BROKER AGREEMENT

It is agreed that Customs Broker Terms and Conditions (the “Terms”) shall govern the dealings between FNS Customs Brokers, Inc. (the “Company”) and Customer for all Custom Brokerage services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, warehousing, brokering, or other services that the Company has provided or may provide to the Customer, and that those separate services shall be governed by their respective terms and conditions which are provided separately.

  1. DEFINITIONS.
  • “CBP” shall mean US Customs and Border Protection.
  • “Company” shall mean FNS Customs Brokers, Inc., its subsidiaries, agents and/or representatives;
  • “Customer” shall mean LG Energy Solution Wrocław sp. z o.o., 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;
  • “Customs Duties” means any duties or taxes levied on imported goods under any US laws or regulations relating to imports and duties, including the Tariff Act of 1930, as amended (19 U.S.C. §§ 1202 – 1683g), excluding any penalties, interest, or fines imposed under any of the aforesaid laws or regulations.
  • “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”.
  • “Protest” shall mean a challenge to a CBP decision made under 19 U.S.C. § 1514, whether made on CBP Form 19 or otherwise.
  • “Services” shall mean the services set out in Section 3 hereof.
  1. APPOINTMENT AS CUSTOMS BROKER. The Customer hereby constitutes and appoints Company as its agent to transact business on Customer’s behalf with respect to: (1) matters relating to CBP and laws and regulations administered by CBP; and (2) matters relating to the accounting for, payment and refund of Customs Duties, in respect of imported goods. Customer agrees to execute any requisite CBP form powers of attorney as may be required to appoint Company as Customer’s customs broker, in a form reasonably acceptable to Customer. Customer hereby authorizes Company to appoint sub-agents when and as required, provided that Company shall notify Customer in writing of any such sub-agents.
  2. SCOPE OF SERVICES.

Company will provide the following customs brokerage services to Customer, when requested by Customer:

  • Preparing or assisting Customer in preparing documents required by CBP for Customer’s importation of good into the US.
  • Filing documents with CBP on behalf of the Customer as required to clear Client’s goods through CBP and making any necessary changes thereto, including preparation and filing of any required corrections, including but not limited to Post Summary Corrections.
  • Filing the OGA (other government agency) when required (FDA, FCC, DOT, EPA, TSCA, etc).
  • Services relating to entry and clearance through CBP of Customer’s imported goods, making payments of requisite Customs Duties by or on behalf of the Customer, and obtaining release of the goods from CBP.
  • Services related to tariff classification and valuation of Customer’s goods in accordance with applicable laws and regulations, as well as submitting binding ruling requests or Protests as necessary.
  • Services related to Customs Duties refunds and duty drawbacks.
  • Any other services necessary and incidental to the provision of the foregoing Services.

Additional services may be mutually agreed between both Parties in writing on a case-by-case basis.

  1. RESPONSIBILITIES OF CUSTOMER.

Customer shall:

  • Provide to Company all information reasonably necessary for Company to provide the Services, including all information required to complete CBP documentation.
  • Notify Company of any inaccuracies, errors, or omissions found by Customer therein, and advise Company of any corrections to be made.
  • Advise Company staff of any urgent shipment at least 72 hours before ETA in US.
  • Make Company the first party to be notified for any customs related problems, issues, and claims.
  • Prepare and provide the relevant PCD information for customs to Company including:
    1. Commodity, product number, model number, and related import requirements such as HTSUS, AD, CVD case#, Sec.232, Sec. 301, etc.
  • Pay for the services rendered by Company in accordance with fee table listed in Appendix A.
  1. LIMITATION OF ACTIONS.
  • 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 180 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.
  • All suits against Company must be filed and properly served on Company as follows:
  1. For claims arising out of ocean transportation, within 180 days from the date of the loss;
  2. (ii) For claims arising out of air transportation, within 180 days from the date of the loss;
  • For claims arising out of the preparation and/or submission of an import entry(s), within 180 days from the date of liquidation of the entry(s);
  1. For any and all other claims of any other type, within 180 days from the date of the loss or damage.
  2. REPRESENTATIONS AND WARRANTIES.
  • Each Party represents and warrants to the other Party that:
  1. it has the full right, power, and authority to enter into this Agreement to perform its obligations hereunder;
  2. the execution of this Agreement by each of the individuals whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action on the part of such Party; and
  • this Agreement has been executed and delivered by such Party and constitutes the legal, valid, and binding obligation of such Party.
  • Company represents and warrants that it is duly licensed by CBP to conduct business as a customs broker.
  • Company represents and warrants that it is a certified member of the US Customs Trade Partnership Against Terrorism (CTPAT) program, or if it is not a member, that it shall comply with the CTPAT Minimum Security Criteria for US Customs Brokers.
  1. 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.
  2. RELIANCE ON INFORMATION FURNISHED. 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;
  • 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 provision of 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.
  1. 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.
  2. 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.
  3. DISCLAIMERS; LIMITATION OF LIABILITY.
    • Except as specifically set forth herein, Company makes no express or implied warranties whatsoever in connection with its services;
    • Subject to 11(4) below, Customer agrees that in connection with any and all services provided by the Company, the Company shall only be liable for its negligent acts, which are the direct and proximate cause of 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.
    • 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 therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
    • In the absence of additional coverage under 11(3) above, the Company’s liability shall be limited to the following:

Where the claim arises from activities other than those relating to customs business, USD $75 per shipment or transaction, or where the claim arises from activities relating to “Customs business,” USD $75 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;

  • 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.
  1. INVOICING AND PAYMENT. Upon completion of each service provided by Company hereunder, Company shall issue an invoice to Customer for all fees and disbursements pertaining to services rendered by Company to and on behalf of Customer hereunder. Payment of all undisputed invoices shall be payable net thirty (30) calendar days after the date of Customer’s receipt of each invoice.
  • Notwithstanding the foregoing, any payment of Customs Duties by Company on behalf of Customer to the CBP or any other governmental agency that exceeds USD $10,000 per entry shall require the Customer to provide Company with said funds within seven (7) calendar days from the date of entry. For Customs Duties of USD $10,000 or less, Customer shall provide Company with such funds within thirty (30) calendar days from the date of entry. In the event Customer fails to provide such Customs Duties to Company before the due date set by the CBP or any other government agency, Company shall not be liable for any penalties, fines, violations, or any additional fees that may occur as a result of late payment.
  1. INDEMNIFICATION. The Customer agrees to indemnify, pay the duty charges, 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.
  2. COSTS OF COLLECTION. In any dispute involving monies owed by to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at fifteen percent (15%) per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
  3. 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.
  4. GENERAL LIEN AND RIGHT TO SELL CUSTOMER’S PROPERTY.
  • 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;
  • 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.
  • 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.
  1. 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 “record keeper” or “record keeping agent” for Customer.
  2. 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.
  3. 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.
  4. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement and all of the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America.

Any dispute or difference of any nature whatsoever arising out of or in relation to this Agreement on any manner incidental thereto or any claim, cross-claim, counter-claim or set off regarding any right, liability, act or omission of any of the Parties hereto shall be mutually settled in an amicable way. In the event the Parties fail to settle a dispute in an amicable way within sixty (60) calendar days after the date such dispute has been notified by the other party, such dispute shall be submitted to and determined by arbitration administered by the International Centre for Dispute Resolution of the American Arbitration Association in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The venue of arbitration shall be Los Angeles and where applicable, California law shall govern the substantive issues arising from the dispute. The arbitration proceeding shall be conducted and the award shall be rendered in the English language and the award rendered by the arbitrator shall be final and binding upon the Parties. The decision and award may be enforced in any tribunal in any country that is party to the New York Convention. The arbitrator shall award the prevailing party its reasonable legal fees and costs (including arbitration costs) incurred in connection with the arbitration. Notwithstanding any provision to the contrary in this Agreement, the Parties’ obligation under this Article to arbitrate shall not preclude either Party from making a request to a court for interim protections or equitable relief. The Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.

  1. TERM. This Agreement shall commence as of the Effective Date set forth above, and shall continue in full force and effect for a period of one year from the Effective Date (the “Initial Term”), unless terminated earlier as provided herein. Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive one (1) year terms unless either Party provides a written notice of nonrenewal at least sixty (60) days prior to the end of the then-current term. In the event the non-renewing Party provides a timely notice of its intent not to renew this Agreement, this Agreement will terminate on the expiration of the then-current term.
  2. MISCELLANEOUS PROVISIONS.

22.1. Notices. Any notice required or permitted to be given hereunder shall be in writing, and may be given by personal service, registered airmail, or email. Any notice so given shall be deemed to be received, if sent by airmail, upon receipt or five (5) days after posting, whichever is earlier, or if sent by email, one (1) business day after transmission. For notices transmitted by email, proof of successful delivery shall be kept by the sender, and such proof shall be produced to the recipient as soon as it is requested by the recipient. All notices shall be given at the following addresses, emails:

22.2. Entire Agreement. This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the subject matter of this Agreement. All prior and contemporaneous negotiations and agreements in writing or made orally between the Parties on the subject matter of this Agreement are expressly merged into and superseded by this Agreement. Any amendment or modification to this Agreement shall not be effective unless made in writing and signed by authorized representatives of the Parties.

22.3. Confidentiality, Proprietary Information. Each Party agree that it will not, without the prior written consent of the other Party, use, copy or disclose to any third party the confidential information, marked confidential in writing, or notified after being disclosed to the former Party as being confidential, of the other Party. Confidential information includes, but is not limited to, tariffs, customer information, marketing strategies, revenue structure, and financial information which a Party may learn in the course of conducting business under this Agreement. This obligation shall survive the termination or expiration of this Agreement. The breaching Party shall be liable for any damage or loss that the non-breaching Party may suffer arising from the breaching Party’s breach of its obligation with regard to non-breaching Party’s confidential information under this Agreement.

The Parties agree and understand that they have or may gain confidential and proprietary information and trade secrets (“Proprietary Information”) of the other Party during the term of this Agreement. The Parties agree that all Proprietary Information of one Party known or obtained by the other shall be kept confidential and shall not be disclosed or permitted to be disclosed to any third party without prior written authorization from the other Party or unless otherwise required by law. Proprietary Information shall include, but not be limited to, technical information including computer software and systems, reports, SOP, quotes, pricing and financial information, and management information systems.

22.4. Severability. If any one or more of the provisions contained in this Agreement is declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and in such case, the Parties hereto shall obligate themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.

22.5. Force Majeure. Neither Party, nor any subcontractor utilized to provide Services/Additional Services under this Agreement, will be liable to the other Party for failing to perform or discharge any obligation of this Agreement where such failure is caused directly or indirectly by any matter beyond the control of the Party that is not performing, including, without limitation, the following: acts of God, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, storms, floods, hurricanes, weather, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment, closing of public highways, government interference and other causes beyond the affected Parties’ control. Prior to claiming excuse of performance hereunder, the Party to be excused shall provide written notice to the other Party of the event or condition giving rise to such excuse. During the existence of any of the aforementioned conditions, the obligations of the Parties hereunder shall be suspended for the duration of same. Upon cessation of the condition(s) enumerated above, the obligations of the Parties hereunder shall resume.

22.6. Successors and Assigns. The rights and obligations of each Party may not be assigned by either Party without the prior written consent of the other Party. Any assignment made without the other Party’s consent shall be null and void.

22.7. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by authorized representatives of both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.

PROPERTY BROKER TERMS AND CONDITONS

 

It is agreed that Property Broker Terms and Conditions (the “Terms”) shall govern the dealings between FNS, Inc. (the “Broker”) and Shipper for all Broker services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage, warehousing, or other services that the Broker has provided or may provide to the Shipper, and that those separate services shall be governed by their respective terms and conditions which are provided separately. 

  1. Broker agrees to arrange for transportation of Shipper’s Goods by motor carriers and other common carriers pursuant to the terms and conditions of these Terms and in compliance with all material aspects with all federal, state, and local laws and regulations relating to the brokerage of the freight covered by these Terms (“Services”). It is understood and agreed that Broker is not acting as a common or contract carrier in performing the Services contemplated herein. Along with the general terms set forth herein, the rates and charges are attached hereto as Appendix A. The parties may, upon written mutual agreement, include additional service terms to be attached as Appendix B. In the event of a conflict or inconsistency between these Terms and any of the Appendices, these Terms shall control.

Shipper is not restricted from tendering freight to other brokers, freight forwarders, third-party logistic providers, or directly to motor carriers. Broker is not restricted from arranging transportation of freight for other parties.

  1. RATES, CHARGES AND PAYMENT.
  2. Payment and Taxes. During the term, Shipper shall pay Broker on the basis of the clauses, rates and charges set forth in the Appendices to these Terms, attached hereto and made part hereof, and any other amount which becomes due and payable under these Terms. Except as otherwise provided in the Appendices, payment shall be due from Shipper within thirty (30) days from the date of invoice by Broker, and if payment is not made within thirty (30) days, Shipper agrees that interest shall accrue daily and be payable to Broker at the interest rate of one and one-half (1.5) percent per month, together with any and all collection costs, including attorney fees. All Charges are exclusive of applicable federal, state, and local sales, use, excise, or similar taxes (collectively, “Taxes”), and Shipper shall pay directly or reimburse Broker for all Taxes applicable to the Services. Except as otherwise specified or agreed by Broker in writing, payments must be made in the currency shown on the invoice generated and sent by Broker. 
  3. Adjustment and Bill Dispute. Either Shipper or Broker may seek an adjustment in the rates or clauses set forth herein by written request to the other party and the parties shall negotiate such adjustments in good faith. However, no such request for adjustment shall take place more than once a year. No action for claim to recover any overcharge or undercharge for Services may be brought by either party more than ninety (90) days after receipt of the initial invoice. A partial payment against an invoice is not considered notification of a billing dispute. Shipper may not, under any circumstances, offset against amounts owed to Broker hereunder, including for any claims based on disputed invoices or claims for loss or damage.
  4. Spot Services. The parties understand that additional services and charges other than those initially set forth herein may periodically arise. In those circumstances, Broker shall spot-quote the requested services in writing, which will become the applicable rate upon Broker receiving written acceptance of the spot-quote from Shipper (written acceptance includes e-mail from a representative of Shipper). Unless the spot-quote and the written acceptance clearly indicate that the services provided and the applicable rate are to be on an extended basis, the spot-quote will apply only to the immediate services provided. Services provided pursuant to spot-quotes will be subject to these Terms.
  5. GENERAL TERMS RELATED TO SERVICES AND DANGEROUS GOODS.
  6. General Terms and Routing. Both Shipper and Broker shall respectively comply with all applicable domestic and international laws, rules and regulations relating to the performances of the Services. Shipper shall provide Broker with all service details in writing including, without limitation, requested mode of transportation, points of origin and destination, description of the subject materials or products, and identification of the parties to the transportation.  Unless Shipper has specifically identified a mode of carriage and a specific carrier in a separate written agreement with Broker, Broker shall have complete discretion in selecting the mode of transportation as well as the routing and all handling, collection and delivery details required to successfully accomplish the arrangement of timely transportation of the Goods.  If Shipper designates a particular carrier in transporting the Goods, Shipper bears all responsibility arising from its selection of the carrier.
  7. Hazardous Material Transportation. Shipper shall provide Broker and the Subcontractors (as defined below) with advance written notice of the proposed shipment of any hazardous material, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 5101, et seq. or any other applicable statute, regulation or other law, domestic or international (“Hazardous Material”). Prior to the transportation, Shipper shall provide Broker and the Subcontractors with a current Material Safety Data Sheet or any other Hazardous Material document required to be prepared and provided by Shipper or its agent for the Hazardous Material shipment.  Shipper represents that in the event any Hazardous Material tendered to Broker, the Hazardous Material will be properly labeled, packaged and transportable under applicable rules, regulations and the laws of the federal, state and local jurisdictions through which they are to be transported. Shipper shall indemnify, defend and hold harmless Broker and the Subcontractors, their officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or related to, exposure to or release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or any other remedial action pertaining to the Hazardous Material under federal, state or foreign law, if (i) Shipper fails to provide the notice required by this provision prior to tendering the Hazardous Material to the Subcontractors, (ii) the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of Shipper, its employees or agents, or (iii) the contact, exposure or release occurred subsequent to the transport or storage of the Hazardous Material by the Subcontractors.
  8.  
  9. General. Broker agrees that the Services to be provided shall be arranged by Broker and performed by properly licensed water carrier, rail carrier, motor carrier or other transportation provider (collectively, the “Subcontractors”) selected by Broker pursuant to the requirements of these Terms. Shipper understands and agrees that the Subcontractors are independent contractors with exclusive control over their respective employees, and not agents, employees or authorized representatives of Broker. When Broker arranges the services of the Subcontractors, Broker shall take reasonable efforts to ensure such Subcontractors shall: (i) have such licenses and permits as are required by applicable governmental authority for the lawful provision of the sub-contracted services; and (ii) perform the Services pursuant to the requirements set forth in these Terms. Broker shall at all times during the term of these Terms be responsible for payment to such Subcontractors, including without limitation, freight charges and any other charges or compensation as required by applicable laws and regulations.
  10. Insurance. Broker shall take reasonable efforts to ensure that the Subcontractors transporting Goods for Shipper will maintain the following insurance coverages (or such coverages and amounts required by applicable law):
  11. General Liability and Commercial Auto Liability insurance in an amount not less than one million dollars ($1,000,000) combined single limit per occurrence;
  12. Cargo Liability insurance in an amount not less than one hundred thousand dollars ($100,000) per occurrence; and
  • Worker’s Compensation insurance covering its employees, as required by applicable state law.
  1. Other Terms for Subcontractors. Broker will enter into bilateral contracts with each Subcontractor it utilizes in the performance of these Terms, and those contracts shall comply with all applicable federal and state regulations and shall include the following provisions:
  2. Subcontractor shall defend, indemnify and hold harmless Broker and Shipper and their directors, employees, officers, and affiliated parent and subsidiary companies (the “Indemnified Parties”) from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees, but excluding consequential damages) caused by and resulting from (i) the negligence or intentional misconduct of Subcontractor or its employees or agents, or (ii) Subcontractor or its employees’ or agents’ violation of applicable laws or regulations.
  3. Subcontractor shall agree that its liability for cargo loss or damage shall be that of a Common Carrier as provided for in 49 USC 14706 (“Carmack Amendment”) for any loss, damage or delay to Shipper’s Goods while in their possession, subject to a maximum liability of $100,000 USD per shipment, unless otherwise agreed to in writing between the Parties.
  • Subcontractor shall agree that the provisions contained in 49 CFR 370.1 et seq. shall govern the processing of claims for loss, damage, injury or delay to property and the processing of salvage.
  1. Subcontractor shall agree that, at no time during the term of its contract with Broker, shall it have an “Unsatisfactory” safety rating as determined by the Federal Motor Carrier Safety Administration (“FMCSA”). If Subcontractor receives an “Unsatisfactory” safety rating, it shall immediately notify Broker.
  2. Subcontractor shall agree that the terms and conditions of its contract with Broker shall apply on all shipments it handles for Broker. Any terms in a tariff that are referenced in the contract which are inconsistent with these Terms shall be subordinate to the terms of these Terms.
  3. Subcontractors Selected by Shipper. The duties and liabilities arising from Section 5(A), 5(B) and 5(C) above shall not apply to subcontractors designated by Shipper to provide a service. However, as the broker of Shipper, Broker will work with such subcontractors under the direction of Shipper to ensure timely transportation of the Goods and efficient management of the containers.
  4. CARGO LOSS OR DAMAGE
  5. General. Subcontractors transporting the Goods as carriers in the United States shall be required by Broker to assume liability as a common carrier for loss, damage, or destruction to any and all of Shipper’s Goods while under the Subcontractor’s care, custody or control. Notwithstanding the Subcontractor’s liability, Broker shall be liable for any loss or damage to the Goods if such loss or damage is caused solely by the negligent acts or omissions of Broker.
  6. As part of the Services, Broker agrees to assist Shipper in resolving all cargo claims with the Subcontractors, subject to the claim handling process under Subsection C below, and to keep Shipper advised of the status of all such claims. Upon request by Shipper, Broker shall assign its right against the Subcontractors to Shipper. Shipper understands and agrees that the liability of Broker and the Subcontractors for any loss or damage to the Goods will not exceed one hundred thousand U.S. dollars ($100,000) per occurrence. In addition, neither Broker nor the Subcontractors shall be liable to Shipper for any economic loss or consequential damages to Shipper beyond actual loss or damage to the Goods. Shipper agrees not to deduct or offset any cargo loss or damage claim from the charges owed to Broker. Notwithstanding anything to the contrary in these Terms, in no event shall Broker be liable to Shipper for loss of profits or business, or any indirect, special, consequential or punitive damages.
  7. Claim Handling. In the event of a cargo loss, damage or shortage claim, Shipper shall notify Broker immediately by email. Shipper shall subsequently submit to Broker a written claim, fully supported by all relevant documentation, including but not limited to photos of damages and the signed delivery receipt, listing the nature and cause of the claim for cargo damage or loss within three (3) months following the date of delivery. No claims or allowances for shortages, damage or delay will be considered unless clearly noted on the delivery receipt or bill of lading signed by the consignee at delivery. Broker assumes no liability for cargo loss, damage, or shortage; however, Broker agrees to submit, negotiate and settle all cargo claims with the responsible Subcontractor/carrier and to keep Shipper advised of the status of all such claims.  Shipper must file any civil action against a carrier in a court of law within one (1) year from the date the carrier provides written notice to Shipper that the carrier denied any part of the claim in the notice.

 

  1. Salvage. Any salvage value will be deducted from Shipper’s claim against Broker for the loss or damage.  If Shipper chooses to not sell or allow the sale of Goods for salvage, the reasonable salvage value shall be deducted from the claim amount due Shipper.  With respect to the handling of any damaged Goods, Broker agrees that Shipper shall have the right to dispose of or destroy such Goods within ninety (90) business days of Shipper providing Broker with written notice of Broker’s right to inspect the damaged Goods and gives Broker or Subcontractors reasonable time to arrange inspection of the damaged Goods. Shipper agrees to provide Broker with an inspection notification form with pertinent information regarding the damage and the location where the Goods may be inspected if so desired by Broker.
  2. INDEMNIFICATION

Each party shall indemnify, defend and hold harmless the other party, its affiliated entities and the officers, directors, shareholders,  employees, agents, successors and assigns of the other party from and against any and all losses, costs, expenses, claims, demands, liabilities, investigations, suits, actions or judgments (including all reasonable attorney’s fees and reasonable expenses) arising out of injuries to or the death of any person or persons, or arising out of the loss or damage to the property of any person or persons, including the property of Shipper (excluding loss or damage to Shipper’s property covered elsewhere in these Terms) to the extent caused by or resulting from the willful misconduct or a negligent act or omission of the party or any of its agents, subcontractors, or employees arising out of the performance of these Terms. Each party assumes no liability under this section for any occurrence arising out of the negligent acts or omissions of the other party. The party seeking indemnification shall promptly notify the indemnifying party of any claim and shall fully cooperate with the indemnifying party, its insurance company and its legal counsel in its defense of such claim(s).  Both parties shall have joint control of the major defense and strategy, and settlement of the claim.

  1. INFORMATION SYSTEM AND PROPRIETARY INFORMATION
  2. Information Services. Any management information system or computer hardware or software used or supplied by Broker in connection with the Services provided under these Terms is and will remain Broker’s exclusive property. Neither the use nor any access to such systems or property by the Shipper will convey to Shipper any use, license or ownership rights in Broker’s property.
  3. Proprietary Information. The parties agree and understand that they have or may gain confidential and proprietary information and trade secrets (“Proprietary Information”) of the other party during the term of these Terms. The parties agree that all Proprietary Information of one party known or obtained by the other shall be kept confidential and shall not be disclosed or permitted to be disclosed to any third party without prior written authorization from the other party or unless otherwise required by law. Proprietary Information shall include, but not be limited to, technical information including computer software and systems, reports, SOP, quotes, pricing and financial information, and management information systems.
  4. FORCE MAJEURE

Neither party, nor any Subcontractor utilized to provide Services under these Terms, will be liable to the other for failing to perform or discharge any obligation of these Terms where such failure is caused by acts of God, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, floods, weather, acts of God, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment, closing of public highways, government interference, epidemics, and other causes beyond the affected parties’ control.

  1. ACCURATE INFORMATION

Shipper shall provide Broker and the Subcontractors with complete, accurate and timely information regarding the Goods to be transported or stored. Shipper shall indemnify, defend and hold harmless Broker and the Subcontractors, their officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or caused by incomplete, inaccurate and/or untimely information being provided by Shipper to Broker and/or the Subcontracts regarding the Goods to be transported or stored.

  1. INDEPENDENT CONTRACTOR

It is understood between Broker and Shipper that Broker is not an agent for Shipper or Subcontractor and shall remain at all times an independent contractor. Shipper does not exercise or retain any control or supervision over Broker, its operations, employees, or Subcontractor. Broker does not exercise or retain any control or supervision over Subcontractor, its operations, employees or Shipper.

  1. MISCELLENEOUS
  2. Notices. Any notice related to these Terms shall be in writing and delivered to the address and/or email address(es) shown below, and the delivery shall be effected via:  (a) DHL, UPS, Fedex or other reputable delivery service, with a tracking number and proof of delivery; or (b) email to one or more email addresses shown below, so long as the party providing notice shall obtain proof that the email was received by the receiving party.
  3. Successors and Assigns. These Terms are binding and for the benefit of both parties and their respective successors and permitted assigns. Neither party may assign these Terms without the written consent of the other party, except Broker may, without consent, assign these Terms to a subsidiary or other related company.
  4. Survival. Paragraphs 4B, 5, 6, 7, 8, and 10 shall survive the termination or expiration of these Terms.
  5. Headings. The headings of various paragraphs of these Terms are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.
  6. Severability. If any term, condition or covenant of these Terms shall be held to be invalid, illegal or unenforceable in any respect, these Terms shall be construed without such provision.
  7. Waiver. Either party’s failure to strictly enforce any provision of these Terms will not be construed as a waiver of that provision or is excusing the other party from future performance.
  8. Jurisdiction. With respect to any suit, action or proceeding arising out of or related to these Terms, each party (a) irrevocably submits to the jurisdiction of the courts of the State of California, County of Los Angeles, and the United States District Court for the Central District of California, and appellate courts from any thereof, and (b) irrevocably waives any objection (including any objection based on inconvenience forum) which it may have at any time to the laying on venue of any suit, action or proceeding arising out of or relating to these Terms brought in the any such court.
  9. Modification. These Terms, and any provisions hereof, may not be modified, amended, waived, extended, or changed orally or by any act or failure to act on the part of any party, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, or change is sought.

 

WAREHOUSE SERVICES TERMS AND CONDITIONS

 

It is agreed that Warehouse Services Terms and Conditions (the “Terms”) shall govern the dealings between FNS, Inc. (the “Warehouseman”) and Customer for all warehousing and storage services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage, or other services that Warehouseman has provided or may provide to the Customer, and that those separate services shall be governed by their respective terms and conditions which are provided separately. 

  1. Warehouseman agrees to provide Customer with warehousing services in its facilities (the “Warehouse”) consisting of the receipt, storage, and shipment of goods, products, and merchandise (the “Goods”) received from Customer for the benefit of Customer’s. Title to and risk of loss of the Goods will remain with Customer at all times. Warehouseman may move, upon reasonable advance notice to Customer any Goods in storage from the Warehouse to any of the other storage facilities owned or leased by Warehouseman. Warehouseman may, without notice, move any or all of the Goods from one location within the Warehouse or other warehouse in which the Goods are stored to another location within the same facility.
  2. SHIPPING OF GOODS TO WAREHOUSEMAN. Customer agrees not to ship Goods to Warehouseman as the named consignee.  If Goods are shipped to Warehouseman as named consignee in violation of this Section 2, Customer agrees to notify its carrier in writing that Warehouseman is a warehouseman and has no beneficial title or interest in such property, and Customer agrees to indemnify and hold harmless Warehouseman from any and all charges of any nature in connection with the Goods so shipped.  Customer further agrees that, if it fails to notify it carrier as required, Warehouseman shall have the right to refuse such Goods and shall not be liable or responsible for any loss, injury, or damage of any nature to, or related to, such Goods.
  3. TENDER FOR STORAGE. All Goods delivered to Warehouseman at the Warehouse shall be properly marked and packaged for handling.  Customer shall furnish at or prior to such delivery, a report indicating the delivered Goods’ model numbers, serial numbers, quantity, etc., and the storage and other services desired. Upon receipt of the Goods, Warehouseman shall issue executed receipts confirming the Goods to be stored, the description and quantity of Goods, tracking number, date of delivery, and carrier name, as applicable.  Warehouseman shall have the right to refuse Goods that do not conform to Customer’s report or are of a quality or condition that renders them hazardous to other property or to the warehouse or to persons.

Unless otherwise made known to Warehouseman in writing and accepted by Warehouseman, Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Warehouseman. Customer warrants that the Goods shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Goods, to accurately describe the Goods, and to provide Warehouseman with all necessary or useful information for the safe storage and handling of the Goods including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Customer breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any such unfit Goods to Warehouseman, Warehouseman shall be entitled to exercise all available remedies including the immediate destruction or removal of the Goods from the warehouse without notice to Customer. In the event of the foregoing breach of Customer warranties, Customer shall be liable for all expenses costs, losses, damages, fines, penalties or other expenses of any sort incurred by Warehouseman in connection with the removal, or destruction, or handling of the Goods and shall indemnify Warehouseman against all amounts, liabilities, claims, or damages arising in connection with the Goods.

  1. WAREHOUSEMAN LIEN. Warehouseman shall have a warehouseman’s lien on any and all property (and documents relating thereto) of Customer in its possession, custody or control or en route, for all authorized charges, expenses, and advances incurred by Warehouseman in connection with Services rendered to Customer under these Terms. If such claim remains unsatisfied for thirty (30) days after demand for its payment is made, Warehouseman may sell at public auction or private sale, upon ten (10) days written notice, sent by registered mail (R.R.R.) to Customer, 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 Warehouseman, including but not limited to the administrative expenses of sale. Any surplus from such sale shall be transmitted to Customer, and Customer shall be liable for any deficiency in the sale. Any Goods sold by Warehouseman in compliance with this paragraph shall be deemed to be goods stored by a merchant in the course of its business. In no event shall a party selling pursuant to a claim of lien, be liable for incidental, consequential (including lost profits), punitive or exemplary damages in connection with such sale EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
  2. DELIVERY REQUIREMENTS. No Goods shall be delivered or transferred from the Warehouse except upon receipt by Warehouseman of instructions properly documented by Customer in the normal course of its business. When no negotiable receipt is outstanding, Goods may be delivered upon instructions by telephone in accordance with prior written authorization, in writing delivered by facsimile or by e-mail, but Warehouseman shall not be responsible for any resulting loss or error. When a negotiable receipt has been issued no Goods covered by that receipt shall be delivered, or transferred on the books of the warehouseman, unless the receipt, properly endorsed, is surrendered for cancellation, or for endorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of Goods may be made only upon order of a court of competent jurisdiction and the posting of security approved by the court as provided by law. Warehouseman will use commercially reasonable efforts to ship Goods by the delivery dates adopted by Warehouseman but such deadlines are estimates only.  Unless otherwise agreed by Warehouseman, in writing, failure to deliver Goods by such deadlines will not entitle Customer to any compensation or damages of any kind. When Goods are ordered out a reasonable time shall be given Warehouseman to carry out instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond Warehouseman’s control, or because of loss or destruction of Goods for which Warehouseman is not liable, or because of any other excuse provided by law, Warehouseman shall not be liable for failure to carry out such instruction and Goods remaining in storage will continue to be subject to regular storage charges.
  3. FEES.
  4. Payment. Customer agrees to pay Warehouseman for the Services as mutually agreed upon by both parties. Prices are subject to change at any time. Payment terms on all invoices shall be net thirty (30) days from the date of the invoice. Customer may be assessed a late fee on all invoices that remain unpaid after 30 days from the date of the invoice equal to the lesser of ten percent (10%) per annum or the highest interest rate allowed by applicable law. Should Customer dispute any invoice or any portion thereof, Customer shall pay the undisputed amount of the outstanding invoice by the due date and then provide Warehouseman with a written explanation outlining the basis for the dispute. Warehouseman will investigate any disputed invoice and within a reasonable time, notify Customer regarding the outcome of such investigation. In the event the investigation determines that all or a portion of the disputed amount is due Warehouseman, Customer shall pay Warehouseman the remaining balance of the disputed invoice, plus any late fees. Customer shall be liable for all of Warehouseman’s costs and expenses associated with collecting any delinquent amounts, including, without limitation, all collection fees, reasonable attorneys’ fees, and court costs.
  5. Additional Charges. Fees cover the ordinary labor and duties requested by Customer incidental to the Services at the Warehouse during regular business hours. Additional services, and services provided at the request of Customer during other than usual business hours, may be subject to an additional charge. All services requested by Customer are chargeable to Customer, including but not limited to shipping, transportation costs, special handling, special warehouse space, material drayage, insurance, taxes, etc. In addition, Customer shall be responsible for packaging costs and other expenses incurred by Warehouseman in connection with the performance of the Services.
  6. TERMINATION OF SERVICES.
  7. Effect of Termination. Upon termination of the Services, Customer shall pay Warehouseman all amounts due, upon receipt of which Warehouseman shall make the Goods available to Customer for pick-up.  Each Party will (i) within ten days after termination, return to the other Party all the other Party’s property and Confidential Information in its possession, and (ii) cooperate with each other to terminate relations in an orderly manner. Notwithstanding the termination of the Services, Warehouseman will not be required to release any Goods held by it hereunder until such time as fees, costs, and charges assessed by it hereunder in connection with such Goods have been paid in full.  All fees, costs, and charges shall continue to accrue against the Goods until they have been removed from the Warehouse.
  8. Removal of Goods. Upon expiration or termination of the Services, Customer agrees that Warehouseman has an absolute and unqualified right to require Customer to remove its Goods from the Warehouse, at Customer’s expense, in accordance with the applicable State Law, Customer shall hold Warehouseman harmless and release Warehouseman from any claims, obligations, suits, actions, or causes of actions or attorneys’ fees incurred by Customer in connection with Warehouseman exercising such rights and the final disposition of Customer’s merchandise.
  9.  
  10. Each party shall defend, indemnify and hold harmless the other party, including affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties for any loss or damage that is arising from or in connection with any bodily injury (including any bodily injury that results in death) or damage to property, and all associated losses, to the extent arising out of (a) a party’s negligence, gross negligence or willful misconduct in performing any of its obligations under these Terms, or (b) a material breach  by a party of any of its representations, warranties, covenants or agreements under these Terms.
  11. Notwithstanding anything to the contrary in these Terms, Warehouseman shall not be liable for any loss or damage caused by inherent nature of the Products, insufficiency or special damages or the loss of anticipated profit or loss of or damage to the good will of Customer. Customer shall not be liable for any incidental, consequential, or special damages or the loss of anticipated profit or loss of or damage to the good will of Warehouseman.
  12. LIABILITY AND LIMITATION OF DAMAGES.
  13. Warehouseman shall not be liable for any loss or injury to Goods stored however caused unless such loss or injury resulted from the failure by Warehouseman to exercise such care in regard to them as a reasonable careful man would exercise under the circumstances and Warehouseman is not liable for damages which could not have been avoided by the exercise of such care.
  14. Goods are not insured by Warehouseman against loss or injury however caused. If Customer desires that the Goods be insured, Customer shall obtain such insurance through its own insurance agent and/or carrier.
  15. Warehouseman’s liability for loss or damage to Goods is limited to $0.50 per pound subject to a maximum of $100,000.00 per claim, whichever is less; and for any and all damages other than loss of or damage to Goods shall be limited to the aggregate amount of payments to be paid to Warehouseman by Customer for the Services pursuant to these Terms; provided, however, that such liability may at the time of acceptance of these Terms be increased upon Customer’s written request on part or all of the goods hereunder in which event an additional monthly charge will be made based upon such increased valuation.
  16. IN NO EVENT SHALL WAREHOUSEMAN BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF USE OF DATA OR INTERRUPTION OF BUSINESS, WHETHER SUCH ALLEGED DAMAGES ARE ALLEGED IN TORT, CONTRACT OR INDEMNITY, EVEN IF WAREHOUSEMAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  17. Further, Warehouseman shall not be responsible to Customer for any damages or loss caused by any third party and shall not be liable in any event for (i) shrinkage or loss of weight of any Goods; (ii) any loss or damage to Goods resulting from improper packing by Customer, insufficient cooperage, breakage, boxing, crating, wear and tear, inherent qualities of the Goods, or leakage or through failure to detect same; or (iii) for concealed damage. Perishable Goods, or Goods that are susceptible to damage through temperature changes, or inherent vice, or other causes incident to general storage, are accepted in general storage at Customer’s sole risk for such damages as might result from general storage conditions. Furthermore, Warehouseman shall have no liability for damage or delay caused by acts of God or nature (including without limitation, flood, windstorm, earthquake, tidal waves, tornadoes), seizure under legal process, labor disputes, water sprinkler leakage, fire, theft, or other cause beyond the reasonable control of Warehouseman, to the extent such damage or destruction is not covered by insurance.
  18. Where loss or injury occurs to stored Goods, for which the warehouseman is not liable, Customer shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental clean-up and site remediation resulting from the loss or injury to the Goods.
  19. INVENTORY DISCREPANCY ALLOWANCE.
  20. Warehouseman shall maintain an inventory accurate of ninety-nine percent (99%) and be granted an inventory discrepancy allowance equal to one percent (1%) of the total value of products from Customer at the date of stock count or audit.
  21. “Inventory Discrepancy” shall mean the net total value of the difference between the physical quantity of the inventory at the warehouse during a stock count and the stock quantity on FNS WMS system.
  22. Warehouseman shall not be liable for any inventory discrepancy, however caused, that is within the Discrepancy Allowance. Any reimbursement amount due to Customer for inventory discrepancy exceeding the Discrepancy Allowance shall be based on the cost of invoice value.
  23. For any discrepancy found during the stock count, Warehouseman shall be granted a period of 2 weeks to verify the stock or to find the missing stock. If Warehouseman is unable to locate the missing stock at the end of the 2 weeks period, Customer shall claim to Warehouseman for such missing stock since the 2 weeks period.
  24. CONFIDENTIAL INFORMATION. Each Party agrees that it will not divulge the existence of the Terms, or of the existence of their relationship under the Terms, or any confidential or proprietary information it receives from the other Party, except as may be required by law; provided, however, that no liability shall arise hereunder as a result of the dissemination of any information that (i) was in the possession or control of a Party prior to the date of disclosure to that Party by the other Party hereunder; (ii) was in the public domain or enters the public domain through no improper act by the Party to which such information was disclosed; or (iii) was rightfully given to a Party by a source independent of the other Party.  This section shall survive termination of the Services.
  25. Any notices related to this Agreement shall be in writing and delivered to the address and/or email addresses of designated representatives of each party, and the delivery shall be effected via: (a) DHL, UPS, FEDEX or other reputable delivery service, with a tracking number and proof of delivery; or (b) email to one or more email addresses shown below, so long as the party providing notice shall obtain proof that the email was received by the receiving party.
  26. HANDLING OF CLAIMS.
  27. Claims. All claims by Customer against Warehouseman hereunder must be presented in writing to Warehouseman no later than one hundred and twenty (120) days after Customer discovers that loss or injury to all or part of the goods has occurred. When Goods have not been delivered, notice must be given by Warehouseman of known loss or injury to the goods by giving notice to Customer, and the time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by Warehouseman. Each claim must contain sufficient information to identify the Goods as to which the claim is being made, the basis of the claim, and the amount of the claim.
  28. No Action. No action may be maintained by Customer against Warehouseman for the loss or injury to the goods stored unless timely written claim has been given as provided in subparagraph above and unless such action is commenced either within nine months after date of shipment or delivery by Warehouseman or within nine months after Customer is notified that loss or damage to all or part of the Goods has occurred, whichever is less.
  29. LIABILITY INSURANCE. Warehouseman shall maintain in full force and effect, at its own expense, insurance coverage as follows: (i) Workers’ compensation as required by law or regulation, (ii) Employer’s liability insurance in amounts not less than $1,000,000 per accident or bodily injury by accident, and (iii) Commercial General Liability insurance in amount not less than $1,000,000 per occurrence.
  30. NO AGENCY. In connection with the Services or the Terms herein, neither Party, nor any director, officer, agent or employee of a Party, shall be considered an agent or employee of the other Party and is not authorized to obligate or commit the other Party in any manner in dealing with customers, potential customers, or other persons, firms or governmental units, including without limitation, contractual obligations and obligations based on warranties or guarantees.  Neither Party nor any director, officer, agent or employee of a Party shall hold itself out as an agent or employee of the other Party hereto or as having any authority to obligate or commit the other Party.
  31. INDEPENDENT CONTRACTOR. Warehouseman is an independent contractor of Customer and nothing in these Terms will be deemed to place the Parties in the relationship of employer-employee, principal-agent, partners or joint venturers.
  32. No waiver by a Party of any breach by the other Party of any of the provisions of these Terms shall be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof.  No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing.
  33. GOVERNING LAW AND JURISDICTION. These Terms shall be governed by, construed, and enforced in accordance with the laws of California. Any dispute or difference of any nature whatsoever arising out of or in relation to the Services or the Terms on any manner incidental thereto or any claim, cross-claim, counter-claim or set off regarding any right, liability, act or omission of any of the Parties hereto shall be mutually settled in an amicable way.  In the event the Parties fail to settle a dispute in an amicable way within sixty (60) calendar days after the date such dispute has been notified by the other party,  such dispute shall be submitted to and determined exclusively by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The venue of arbitration shall be Los Angeles, California, and where applicable, California law shall govern the substantive issues arising from the dispute.  The arbitration proceeding shall be conducted and the award shall be rendered in the English language and the award rendered by the arbitrator shall be final and binding upon the Parties. The decision and award may be enforced in any tribunal in any country that is party to the New York Convention. The arbitrator shall award the prevailing party its reasonable legal fees and costs (including arbitration costs) incurred in connection with the arbitration. Notwithstanding any provision to the contrary in these Terms, the Parties’ obligation under Article 17 to arbitrate shall not preclude either Party from making a request to a court for interim protections or equitable relief.  The Parties shall be entitled to an injunction or injunctions to prevent breaches of these Terms and to enforce specifically the Terms provided herein.
  34. The rights and obligations of each Party may not be assigned by either Party without the prior written consent of the other Party. Any assignment made without the other Party’s consent shall be null and void.
  35. If any provision of the Terms is declared to be invalid or unenforceable by a final judgment, order or decree of any court or administrative body having proper jurisdiction, then, as to that jurisdiction only, such provision shall be deemed to be severed from the Terms and the remainder of the Terms shall remain in full force and effect.  Furthermore, in lieu of each illegal, invalid or unenforceable provision there shall be added automatically as part of the Terms a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
  36. FORCE MAJEURE. Neither Party will be responsible for failure or delay of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation, the following: Acts of God, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, storms, floods, hurricanes, weather, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment, closing of public highways, government interference and other causes beyond the affected Parties’ control. During the existence of any of the aforementioned conditions, the obligations of the Parties hereunder shall be suspended for the duration of same. Upon cessation of the condition(s) enumerated above, the obligations of the Parties hereunder shall resume.
  37. The headings and captions used in these Terms are for convenience only and shall not be considered in the construction or interpretation of any provision hereof. The language in all parts of the Terms shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either Party.
  38. NO REPRESENTATIONS. Except as expressly stated herein, neither Party has relied upon any representations or statements made by the other Party or its counsel.

CTPAT Statement of Management Support

The Customs Trade Partnership Against Terrorism (“CTPAT“) is a voluntary program in which members of the international trade community partner with US Customs and Border Protection (“CBP“) to strengthen international supply chain security and improve US border security. CTPAT participants must establish and maintain security processes to protect their supply chains from terrorist infiltration and other illegal activities that threaten US security. In doing so, CTPAT members take an active role in working with the US government to combat terrorism and other criminal activities.

FNS, Inc. (“Company“) has been a certified participant in the CTPAT program since October 22, 2007. All levels of the Company’s management, including its senior executives, are fully committed to the CTPAT program and ensuring the integrity of the Company’s international supply chain. It is essential that we protect our supply chain from criminal activities, such as drug trafficking, terrorism, human smuggling, and illegal contraband. This is critical not only for the safety of our employees and contractors and the success of our business, but also the safety of our customers, vendors, visitors to our facilities, and other business partners.

Accordingly, it is the policy of the Company to:

  • Implement, maintain, and document security measures, policies, and procedures in accordance with the CTPAT minimum security criteria that CBP has established for consolidators and freight forwarders (“CTPAT MSC“). More information about the Company’s policies and procedures relating to the CTPAT MSC is contained in the Company’s Supply Chain Security Policy.
  • Ensure its written policies and procedures are maintained and updated as necessary.
  • Devote sufficient resources to ensure the Company’s supply chain security program is effectively implemented and maintained, including through regular review, assessment, and, where necessary, improvement of our supply chain security procedures.
  • Provide all our employees and contractors with the necessary support and training to carry out their responsibilities under the Company’s Supply Chain Security Policy.
  • Cooperate with CBP and other law enforcement agencies, as appropriate, to protect the Company’s global supply chain and prevent the introduction of terrorist devices and other contraband.

Ensuring supply chain security requires the vigilance and cooperation of all departments within our Company. Every officer, director, employee, contractor, and agent of the Company must comply with both the CTPAT MSC, as it applies to their role within the Company, and the Company’s Supply Chain Security Policy at all times. We all must play a part in securing our supply chain and preventing it from being compromised by terrorist organizations and other criminal activities.

 

 

 

____________________________________

Dong Eon Kim

Chief Financial Officer

10.25.2021

            

 

 

WEBSITE TERMS OF USE

 

Last Modified: 10.25.2021

  1. Acceptance of the Terms of Use

These terms of use are entered into by and between You and FNS, Inc. (”Company,” “we,” or “us”). The following terms and conditions (“Terms of Use”), govern your access to and use of [fnsusa.com], including any content, functionality, and services offered on or through [fnsusa.com] (the “Website”).

Please read the Terms of Use carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at [privacy-policy], incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website.

This Website is offered and available to users who [are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

  1. Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

  1. Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

You are responsible for both:

  • Making all arrangements necessary for you to have access to the Website.
  • Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy [privacy-policy], and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

  1. Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
  • If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

  1. Trademarks

The Company name, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

  1. Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the standards set out in these Terms of Use.
  • To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.

Additionally, you agree not to:

  • Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
  • Use any device, software, or routine that interferes with the proper working of the Website.
  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.
  1. Monitoring and Enforcement; Termination

We have the right to:

  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
  • Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

  1. Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

  1. Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

  1. Information about You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy [privacy-policy]. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

  1. Linking to the Website

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use. You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

  1. Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

  1. Geographic Restrictions

The owner of the Website is based in the State of California in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

  1. Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  1. Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

  1. Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.

  1. Governing Law and Jurisdiction

All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, and County of Los Angeles, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

  1. Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  1. Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

  1. Entire Agreement

The Terms of Use, and our Privacy Policy constitute the sole and entire agreement between you and FNS, Inc. regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

  1. Your Comments and Concerns

This website is operated by FNS, Inc., at 1545 Francisco Street, Torrance, California 90501.

All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: [Daniel Roe, daniel.roe@fnsusa.com].

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