Chapman Freeborn OBC Inc. Terms and Conditions
CONTRACT FOR EXPRESS AND COURIER SERVICE – GENERAL TERMS AND CONDITIONS (GTCs)
This Contract for Express and Courier Service is made by and between Chapman Freeborn OBC, Inc., a California corporation with its principal office at 800 W. 6th Street, Suite 1220, Los Angeles, CA 90017, United States (CF) and the Client and the Client named in the Booking Schedule ("Client").
CF provides an on board courier service, through the use of independent contractor couriers, for the national and international air carriage of certain types of express and courier parcels on behalf of clients, and also provides, on request, forwarding and/or onward carriage to and from the airport(s) involved. Client desires to use the said service for the shipment specified in the Booking Schedule (Shipment). CF and the Client shall each be referred to herein as a Party and jointly as Parties.
These GTCs, together with the Booking Schedule attached hereto, comprise the Contract for Express and Courier Service between the Parties relating to the Shipment (Agreement).
1. Term of Agreement - Shipments Made Under This Agreement
This Agreement shall commence on the date of the last signature on the Booking Schedule and shall, subject to Clauses 3 and 14 hereunder, terminate on _______________, which period shall be referred to as the Term of this Agreement. During the Term of this Agreement, subject to the terms and conditions of this Agreement, CF agrees to provide and Client agrees to pay for the on board courier service for each Shipment as agreed and specified in the Booking Schedule attached hereto. If only one Shipment is made during the Term of this Agreement, one Booking Schedule shall be agreed, attached hereto and incorporated herein; if more than one Shipment is made during the Term of this Agreement, a separate Booking Schedule shall be agreed, attached hereto and incorporated herein to cover each Shipment made during the Term of this Agreement.
2. CF's Obligations
CF shall organize the carriage of the Shipment, as specified in the applicable Booking Schedule, and incorporated herein by reference, in consideration for Client's paying CF's invoice for the carriage of the Shipment and Client's fulfilling its obligations hereunder. The Shipment will be carried by air by an independent contractor courier (Courier). CF's sole obligations to the Client shall be to organize carriage of the Shipment from the specified pick-up address to the specified delivery address, all as set forth in Booking Schedule.
3. Client's Obligations
(a) represents and warrants that the information it provides to CF shall be accurate and capable of being relied upon by CF and the Courier in performing carriage of the Shipment and, further, that the information set out within a Booking Schedule is correct in all material respects.
(b) agrees that if the Courier is required to make out a customs or other similar declaration during the course of the carriage that requires a description of the Shipment and its value, the Courier is entitled to rely upon and provide in that declaration the information provided by the Client and reflected in a Booking Schedule. In making out and submitting any such declaration, the Courier is acting solely as the Client's representative and agent, for the Client’s own account, and is not acting on behalf of CF. If CF is asked by the Client to arrange any customs clearances, all such arrangements shall be made by CF as agent for and on behalf of Client and subject to the terms of engagement of the relevant third party service provider utilized.
(c) agrees that the information provided by the Client to CF shall be treated by the Parties as Confidential Information hereunder. The Client hereby agrees that, should they be required to do so at any time by any Governmental or regulatory body or authority, CF and Courier and each of them shall be permitted to disclose any of the information set forth in this Agreement and in the applicable Booking Schedule to said Governmental or regulatory body or authority.
(d) shall ensure that the Shipment is properly labelled, packaged suitable for air transport by the Courier; such packaging shall take into account whether the Shipment is to be carried as carry-on luggage or checked luggage. Neither CF nor the Courier shall be required to package or repackage the Shipment for carriage. CF shall be entitled to reject the Shipment and return it to the Client if, in CF's opinion, it is not suitably packaged for carriage.
(e) shall comply with and shall ensure that the Shipment complies with all industry customs and standards, including without limitation the applicable regulations of International Air Transport Association (IATA), International Civil Aviation Organization (ICAO), all applicable laws and regulations of any country or state to, from or over which the Shipment may be carried, including without limitation aviation regulations, customs, police, public health, immigration, and any other laws and regulations including those relating to the carriage of dangerous or hazardous goods, live animals and security or protection against acts of terrorism.
(f) shall at all times fully comply with all Governmental and other applicable regulatory requirements of any country to, from, through or over which the Shipment may be carried or may be otherwise applicable, relating to the labeling of the Shipment and the preparation of any documents required for the transport of the Shipment, including but not limited to documentation relating to import or export or customs clearance. The Client shall complete and provide all such documentation prior to the carriage of the Shipment.
Any failure by the Client to comply with any of these obligations shall be a material breach of this Agreement and entitle CF to terminate the Agreement and/or suspend performance of the Agreement.
Where CF uses an existing CF employee to act as a Courier, the employee performs and is compensated for performing the Courier services under the terms of his or her employment contract with CF, and CF controls and directs the manner and means by which the employee performs his or her work as Courier, CF shall retain sole discretion and control of the manner and means by which the services shall be performed. In all other circumstances, the Courier shall be engaged and provide its services as an independent contractor and the Courier is not, and shall not be deemed to be, an employee of CF.
Where the Courier is acting as an independent contractor, CF shall have sole discretion in whether to engage Courier to perform the carriage of the Shipment on behalf of the Client, Courier shall retain sole discretion and control of the manner and means by which the services shall be performed, and, subject to the provisions of Clause 11 hereof, CF's sole responsibility with respect to the performance of the carriage by Courier shall be to give instructions to the Courier in accordance with the information set forth in a Booking Schedule.
5. Rejection of Shipment and Excluded Commodities
(a) CF shall be entitled to reject any Shipment, terminate the Agreement and/or suspend performance of the Agreement if: (i) the Shipment is not made available for pickup at the pickup address at the requested pickup date, all as set forth in a Booking Schedule, or (ii) the appearance or packaging of the Shipment at the time of pickup does not correspond to the description as set forth in a Booking Schedule, or (iii) after completion of a Booking Schedule, the Client materially modifies the information relating to the Shipment, including but not limited to a modification as to the pickup or delivery location, pickup or delivery date, or Receiver.
(b) CF will not organize carriage of any of the following commodities, which shall at all times be excluded from being part of any Shipment:
(i) any individual parcel with a weight of over 70lb;
(ii) any individual parcel which exceeds the dimensions in inches (L x W x H) 108 x 23 x 31 (subject to specific exceptions as may be agreed, in its discretion, by CF);
(iii) hazardous material, dangerous goods, or prohibited or restricted articles under any applicable regulations of IATA, ICAO or any applicable Governmental regulatory body or authority including without limitation those of any civil aviation authority, customs, police, public health, or immigration authorities;
(iv) any commodities as to which there are export controls, or for which special authorization or import licenses or permissions are required by any applicable Governmental regulatory body or authority and CF has not been furnished with proof that such controls, authorizations, licenses or permissions have been complied with or obtained by Client;
(v) any of the following: animals, foodstuffs, perishable items, plant and plant materials, bullion, currency, bearer form negotiable instruments, travelers checks, stamps, precious metals and stones, firearms and/or parts thereof and ammunition, weapons of any kind, human remains or parts, pornography, illegal drugs, tobacco, and/or any articles or parcels that CF, in its absolute discretion, considers may be identified by any applicable Governmental or regulatory authority as being such an item and may therefore lead to interception of or delays to the Courier;
(vi) any other commodities that may be excluded from carriage on board an aircraft by the air carrier, or the regulations or laws of any country to, from or through or over which the Shipment may be carried or may be otherwise applicable. Said exclusion shall be at the sole discretion of the air carrier or applicable Governmental body or regulatory authority and CF shall not be liable to the Client in the event of any delay, interruption in or termination of carriage or any resulting loss or damage to the Client as a result of said exclusion, notwithstanding CF's choice of air carrier or any involvement of CF in determining the route taken for the carriage. Moreover, any such exclusion or delay shall not affect CF's right to payment pursuant to Clause 9 hereof;
(vii) any part of the Shipment in respect of which no customs declaration is made, when required by the applicable customs regulations; and (viii) any commodity which CF decides, in its absolute discretion, cannot be transported safely or in compliance with any applicable laws or regulations." (c) If the Client tenders for carriage under this Agreement any commodities that fall within the descriptions of subparts (a) or (b) of this Clause, the Client shall be liable to CF for any and all damages, expenses or cost of any kind incurred by CF as a result of such tender and shall be under a duty to cooperate with CF in minimizing such damages, expenses or cost.
Each of CF, the Courier, any applicable customs agency, Governmental body or any other entity entitled by law, have the right to open, inspect and/or perform any screening of, by x-ray or otherwise, any Shipment or any parcel or part thereof, without prior notice to the Client, at any time and CF shall incur no liability of any kind in respect of the same.
CF shall be responsible for organizing the flight and route that the Courier takes in performance of the carriage of the Shipment. The choice of airline or air carrier shall be at CF's sole discretion. CF assumes no obligation to route a Shipment via any specified aircraft or over any particular route or to make a connection at any point, according to any schedules. Should the flight that is chosen by CF be delayed or cancelled for any reason, or the Courier fails to board the said flight for any reason, CF shall make alternative arrangements for carriage on the next available flight and shall notify the Client of the change. In order to facilitate delivery to the Receiver, CF shall be entitled to divert or change the routing of the Shipment or substitute an alternative carrier or aircraft or cause a Shipment to be transported by motor vehicle or other form of transport.
8. Delivery and Undeliverable Shipments
By this Agreement, CF undertakes to instruct the Courier to deliver the Shipment to the delivery address as specified in a Booking Schedule. CF does not guarantee that the Shipment will be delivered in person to the party identified as the Receiver in a Booking Schedule. The Parties agree that the Shipment cannot be delivered to a post office box. If the Shipment cannot, for any reason, be delivered to the said delivery address, or the said Receiver refuses to accept delivery or, in the event of a "cash on delivery" payment agreement, to pay for the Shipment, or the delivery address or the Receiver cannot be reasonably identified or located, CF shall notify the Client and shall agree with the Client on how to proceed. If no agreement can be reached within a reasonable time, CF shall use all reasonable efforts to return the Shipment to the Client, which return shall be made at Client's sole cost. If the Client cannot be located, or does not accept the return of the Shipment, or pay for its return, CF shall be entitled to release, dispose of or sell the Shipment, without incurring any liability to the Client or anyone else, and shall be entitled to apply the proceeds of any sale of the Shipment against any charges and related administrative costs incurred by CF under this Agreement, with the balance of those proceeds returned to the Client.
In consideration for CF's organization of carriage of the Shipment hereunder, the Client agrees to pay CF a charge or fee, as agreed upon by the Parties in advance. Fees, levies, taxes or charges imposed by any Governmental or other authorities which are incurred by CF or the Courier during or as a result of the performance of the services hereunder, or additional expenses incurred by CF and borne by the Client under the terms of this Agreement, shall be reimbursed by the Client to CF. Unless otherwise stated on a Booking Schedule, all invoices rendered by CF are payable by the Client, without any withholding, deduction, set-off or counterclaim whatsoever, within three (3) days of the invoice being received by the Client. Should the Client fail to make payment when due, interest on all outstanding amounts will be assessed and applied at the rate of 2% above the basic rate of the HSBC Bank compounded monthly.
CF's insurance does not extend to coverage for the Client or the Shipment. The Client may request in writing that CF arrange for or obtain insurance coverage on behalf of the Client, in which case CF will use commercially reasonable efforts to comply with that request, at the Client's sole expense.
11. Liability and Indemnity
(a) Any liability of CF for damage, destruction, loss of or delay to the Shipment or any part or parcel thereof, shall not exceed the amount provided for by any applicable international treaty (including the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw October 12, 1929, or such Convention as amended by the Protocol signed at the Hague, September 28, 1955 and/or by the Montreal Protocol No. 4 of 1975 or the Convention for the Unification of Certain Rules for International Carriage by Air - Montreal, 28 May 1999 (hereinafter, each a "Convention")). Any contrary term or provision contained herein is hereby superseded and replaced by the applicable Convention rule relating to liability in such cases. The Convention governs and limits the liability of the Carrier with respect to loss or damage to cargo and for death to or injury of passengers in "International Carriage." It shall be the sole responsibility of the Client to obtain additional insurance for coverage in addition to the limitations specified above. The limitations of liability set forth by the Convention shall also apply to ancillary transports to and from the airport of departure or arrival utilised by the Courier in carrying the Shipment.
(b) Without prejudice to the operation of the provisions of sub-paragraph (a) above, where the Client declares on a Booking Schedule a higher value for the Shipment than would apply under the applicable Convention, then (i) CF may, at the Client’s request, be able to arrange additional insurance, at the Client's expense, to cover the increased value of the Shipment or (ii) the Client may at its own cost take out additional insurance to protect its interests.
(c) Notwithstanding any other provisions of this Agreement, CF shall not be liable to the Client for any of the following:
(i) any special, indirect or consequential loss or damages whether caused by breach of contract (including this Agreement), negligence, breach of any statutory duty or arising in any other way. For the purposes of this Clause 11, indirect or consequential loss or damage means any loss not directly arising from the breach, negligence or other event concerned;
(ii) any loss of profits, contracts, revenues or wasted management time, howsoever incurred;
(iii) loss of, damage to, delay, misdelivery or non-delivery of any Shipment or part thereof that falls within the provisions of Clause 5(b) hereof;
(iv) loss or damage as a result of delay in, or failure of, delivery of any Shipment, provided that such delay was due to circumstances beyond CF’s control (including, without limitation, due to acts of customs or other regulatory or Governmental agency);
(v) any loss of, damage to, delay in delivery or failure to make delivery of the Shipment to the Receiver or the delivery address by reason of Force Majeure, which is defined for these purposes as any cause or reason whatsoever beyond the reasonable control of CF including without limitation:
A. war, civil war, civil unrest, warlike events and those that arise independent of the state of war as a consequence of one of these said dangers;
B. terrorism, or political acts of violence, irrespective of the number of persons involved, and other acts of persons or groups of persons to achieve political, religious, ethnic, ideological or other aims which are capable of spreading fear and terror in the population and through that influencing government or state institutions or a part of the same;
C. dangers relating to nuclear energy or ionizing radiation;
D. confiscation, divestment or other seizures by sovereign hand;
E. dangers from the use, by anyone, of chemical, biological, biochemical substances or weapons dangerous to public safety, without consideration of other contributory causes."
(vi) any loss or damage resulting from any inherent defect of the Shipment, the intrinsic nature of defect of the commodity that constitutes the Shipment, or any improper packaging, sealing or preparation of the Shipment for carriage. (d) The Client shall indemnify and defend CF and shall hold CF harmless from and against any liabilities, penalties, claims, proceedings, actions, judgments, damages, obligations, costs and expenses of any nature, including but not limited to attorneys' fees and litigation costs, arising out of or relating in any way, directly or indirectly, in whole or in part, to the Client's failure to comply with any applicable laws or regulations or for breach of any of its obligations under the Agreement. Such obligation to indemnity, defend and hold harmless shall extend to any Director, officer, employee or agent of CF. The provisions of this Clause 11(d) shall survive the termination or expiry of this Agreement.
Any claims made by the Client against CF in respect of a Shipment must be made in writing and submitted within three (3) days of delivery in the case of loss or damage, within fifteen (15) days of the date when the Shipment should have been delivered in the case of delay and within twenty one (21) days for all other claims. Failure to submit claims within such time limits shall be conclusive proof that any such claims have been waived by the Client. The Client must send all relevant information about the claim to CF within 30 days of notifying the claim and CF shall not be obliged to act on any claim until all sums due to it under the Agreement have been paid by the Client. Receipt of a Shipment by the Receiver without written notice of damage on a delivery receipt is prima facie evidence that the Shipment was delivered in good condition. In order to consider any claim, CF may require that the Receiver makes the contents, original shipping cartons and packaging of the Shipment available to CF for inspection.
13. Confidential Information
The Agreement and the information and details of the Shipment set forth in a Booking Schedule shall be treated as Confidential Information by each of the Parties. Each Party agrees and warrants that it will keep all Confidential Information strictly confidential and shall not, without the prior written consent of the other Party, disclose any such Confidential Information to any person or entity other than its officers, directors, shareholders, owners, employees, accountants, attorneys, consultants, contractors and advisors (collectively, Representatives) who need to know the Confidential Information for the purpose of performing the obligations hereunder or otherwise rendering advice or assistance with respect to or arising from the Agreement or the obligations hereunder. Notwithstanding the foregoing, if either Party or its Representatives are legally required to disclose any Confidential Information, in connection with performing the Agreement or in any other circumstance, including but not limited to compulsion of a court or legal process, or investigation or request from a governmental or regulatory body, compliance with that legal compulsion shall be permitted and shall not be a breach of this Agreement.
(a) In addition to any other termination provisions set forth herein, CF may, without prejudice to any other rights including the right to claim damages from the Client, suspend the provision of its services under this Agreement or terminate the Agreement immediately upon notice to the Client on the occurrence of any of the following events:
(i) the Client fails to make payment of any amount payable hereunder on the due date;
(ii) an order is made or a resolution passed for the liquidation or winding-up of the Client or if the Client becomes insolvent or is adjudicated bankrupt or commits an act of bankruptcy.
(iii) the Client materially breaches any of its obligations under the Agreement."
(b) The Client may cancel a Shipment, subject to payment by it of any applicable cancellation charge (as set out in the Booking Schedule).
(a) Governing Law and Jurisdiction. This Agreement is governed and construed in accordance with the laws of State of California, without regard to its conflicts of laws principles. The Client hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the courts of the State of California sitting in Los Angeles County, California and of the United States District Court for the Central District of California for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and the Client agrees not to commence any action, suit or proceeding relating thereto except in such courts).
(b) Waivers. The Client agrees that any failure or delay by CF in exercising any right, power or privilege hereunder will not operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
(c) Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, shall be held inconsistent with any present or future law, ruling, rule, policy or regulation of any court or Governmental or regulatory authority having jurisdiction over the subject matter hereof, such provision shall be deemed to be rescinded or modified in accordance with such law, ruling, rule, policy or regulation and the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it shall be held inconsistent, shall not be affected thereby.
(d) Binding Effect. This Agreement shall be binding on and shall inure to the benefit of, and be enforceable by CF and the Client and all of their successors and assigns.
(e) Entire Agreement. This Agreement and any Booking Schedule with respect to each Shipment made hereunder, contains the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, express or implied, between the Parties with respect to such subject matter.
(f) Survival. The terms of this Agreement shall survive termination of the Agreement.
(g) The Parties do not intend the Agreement to confer any rights whatsoever on any other person.