KCE Logistics Inc Terms and Conditions of Service These Terms and Conditions constitute a legally binding contract between Company and Customer. They supersede prior versions of the Company’s standard Terms and Conditions of Service. In the event the Company and Customer have executed a contract or agreement that contains terms and conditions separate from these or prior versions of these Terms and Conditions, then those contractual arrangements shall govern whenever they are inconsistent with these Terms and Conditions. These Terms and Conditions may be found by visiting www.kcelogistics.com. Printed copy of all Terms and Conditions may be obtained by contacting the Company at (305) 436-6000.
“Company” or KCE Logistics Inc – its subsidiaries, related companies, agents and/or representatives.
“Customer” means the person(s) or entity(ies) for which the Company is rendering service, and its principals, agents, employees and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers, sellers, shipper’s agents, freight forwarders, insurers, underwriters, break-bulk agents, contractors and consignees, and it shall be the responsibility of the Customer to provide notice and copy(ies) of these Terms and Conditions of service to all such representatives.
“Customs Business” shall have the meaning as defined in 19 U.S.C. §1641 and 19 C.F.R. § 111.1.
“Documentation” means all information received directly or indirectly from Customer in any format.
“Goods” means the cargo of the services provided hereunder, including but not limited to live animals, equipment, containers, pallets or similar articles of transport or packaging not supplied by or on behalf of the Company.
“Owner” means the owner of the Goods, any packaging, containers or equipment inclusive.
“Third Parties” means a person or entity besides the two primarily involved under this Agreement, including, without limitation, any carriers, truckmen, brokers, warehousemen, stevedores, port authorities, forwarders, insurers, and/or others whom are given custody of the Goods for the purpose of transportation, collection, clearance, loading, packing, handling, delivering, storing or otherwise.
For the purpose of carrying out tasks relating to the entry and release of Goods, post entry services, procurement of export licenses, export and security documentation filing on Customer’s behalf, interactions with government agencies on Customer’s behalf, and/or the arrangement of transportation services and/or logistics services in any capacity other than as a carrier, Company shall be considered as Customer’s agent.
When Company acts as an agent on behalf of Customer, Company shall be entitled (and Customer hereby expressly authorizes Company) to enter into all such contracts on behalf of Customer as may be necessary or desirable to fulfill Customer’s needs.
When acting as an agent, Company acts solely on behalf of Customer in engaging the services of Third Parties on the usual terms and conditions on which the Third Parties offer such services, thereby establishing a direct contract between Customer and the Third Party provider of such services, capable of being enforced by or against Customer as principal, whether or not the Customer is identified in the contract.
Upon the Company’s engagement of a Third Party, the Customer agrees to accept and comply with the Third Party’s terms and conditions of service, whether or not Customer has read such conditions. For all other services, Company shall be an independent contractor of Customer.
Except where inconsistent with federal law, these Terms and Conditions shall be construed according to the laws of the United States and the Customer agrees that any suits against the Company shall be brought exclusively in the Federal Courts of the Southern District of Florida, USA and the State court of Florida located in Miami-Dade County, without regard to its conflicts of law provisions, to the exclusion of any other court PROVIDED ALWAYS that the Company may in its absolute and sole discretion, voluntarily submit to the jurisdiction of other court, but such shall not constitute a waiver of the terms of this provision.
Customer consents to the exercise of in personam jurisdiction by said courts over it. Customer further consents to in rem jurisdiction by any court over its Goods wherever said Goods are located and agrees that any action to enforce a judgment may be instituted in any jurisdiction.
Company shall use reasonable care in its selection of carriers, third parties, routes, procedures, handlings, means of transportation, and clearance and delivery of Goods.
Company’s advice that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that the services will be rendered by such person or firm.
Company is not responsible for delay, loss or damages occasioned while the Goods are in the possession or control of other parties and all claims arising out of such delay, loss or damages shall be brought solely against the third-party in whose care, custody or control the Goods were in when they were delayed, lost or damaged.
When acting as an agent, Company acts solely on behalf of Customer in engaging the services of Third Parties on the usual terms and conditions on which the Third Parties offer such services, thereby establishing a direct contract between Customer and the Third Party provider of such services, capable of being enforced by or against Customer as principal, whether or not the Customer is identified in the contract.
Upon the Company’s engagement of a Third Party, the Customer agrees to accept and comply with the Third Party’s terms and conditions of service, whether or not Customer has read such conditions.
Company reserves the right to modify, amend or supplement its rates, fees, freight charges, features of service, insurance premiums and products without notice. Absent a written contract or agreement executed by Company, quotes are for informational purposes only.
Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, other government agency(ies) and/or any third party, and will immediately advise the Company of any errors, discrepancies, incorrect statements or omissions on anything filed or submitted on Customer’s behalf.
The Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer in preparing and submitting information on Customer’s behalf.
Customer shall use reasonable care to ensure the correctness of all such information and shall defend, indemnify and hold the COMPANY, including its officers, directors, employees and agents, harmless from any and all claims, losses, damages, penalties, liabilities or expenses (including reasonable attorneys’ fees) as a result of the Customer’s failure to disclose information or any incorrect, incomplete or false statement by the Customer.
Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the Goods.
Customer is responsible for ensuring the correct cargo weight is supplied and recorded on any bill of lading and/or other document(s) governing the transport of the Goods. The Customer is fully responsible for any cost difference due to a change or misrepresentation in actual weight or dimensions.
Company bears no obligation to undertake any pre- or post-Customs release actions such as obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protest(s), responding to Customs’ inquiries, etc. or for any costs or expenses that are incurred as a result of such actions.
Customer shall be solely responsible and liable for marking the Goods and the outside of any packages or container in which they may be placed, for complying in all respects with the laws or regulations that may be applicable before, during, and after the carriage. Customer shall be liable for all permits, licenses, and regulations regarding the Goods and their compliance. Company shall not be liable for any federal agency requirements besides those requirements established by U.S. Customs and Border Protection imposed on customs brokers.
Customer shall be liable for duties, taxes, fines, imposts, expenses imposed by Customs and/or other government authorities on the Goods. Customer shall defend, indemnify and hold the Company, including its officers, directors, employees and agents, harmless for any and all duties, taxes, fines, imposts, expenses or increase thereof imposed by Customs and/or other government authorities.
Company shall be compensated for its services, in addition to the rates and charges of all Third Parties selected by the Company to transport and handle the Good. Company shall be entitled to be paid and retain all brokerages, commissions, allowances and other remunerations from Third Parties. Company’s receipt of any fees, commissions or other revenue from Third Parties is independent from Company’s receipt of compensation for its service from Customer, and Company is released of any and all fiduciary responsibilities by the Customer.
The compensation of the Company for its services may be included with and is in addition to the rates and charges of all carriers and other third parties selected by the Company to transport and deal with the Goods.
Unless the Company agrees in writing to extend credit to the Customer, all charges must be paid by the Customer in advance of shipment and/or outlay by the Company. Should the Company grant credit to the Customer in connection with a particular transaction or make an outlay, the Customer shall not consider that an approval for an extension of credit on a regular basis. If credit has been extended to the Customer, payment terms are “due upon receipt,” unless otherwise stated in a separate written agreement. By making the credit application and accepting the credits, Customer agrees to all terms and conditions set forth in Company’s Credit Terms and Conditions and terms herein.
Payment shall be made in United States dollars, unless otherwise specified by the Company. All invoices shall be paid in full, without reduction or set-off, including without reduction for pending claim amounts.
Although the Customer may give the Company alternate payment instructions, the Customer shall be primarily responsible for all shipping and delivery costs, as well as any other costs incurred by the Company, including returning or storing any Goods.
Any unpaid obligation shall bear interest from the date due at fifteen percent (15%) per annum or the highest rate allowed by law. Should the Company, in its sole discretion, find it necessary to refer Customer’s account for collection or action against the Customer for monies due the Company, the Customer shall pay the expenses of collection and/or litigation, including reasonable attorneys’ fees.
The Company reserves the right to refuse to accept Cash/Collect on Delivery (COD) or Freight Charges Collect on Delivery (FCCOD) shipments. In the event the Company agrees to accept a COD or FCCOD shipment, then it is only obligated to use its best efforts to obtain COD or FCCOD. In the case of COD shipments, under no circumstances shall the Company be liable to the Customer or any third party in the event the shipment is tendered without prior payment or in the event payment is lost, dishonored, refused, returned or otherwise. In the case of FCCOD shipments, payment shall be made via bank drafts, certified funds or other similar guaranteed payment method. Should payment be refused, returned, dishonored or otherwise, the Customer shall be liable for any resulting expenses incurred by the Company. The Customer is ultimately liable for all freight charges to the Company.
The Company will not invoice any third party on behalf of the Customer unless the Company has otherwise agreed in writing to do so.
All claims for alleged overcharge shall be deemed waived if not presented to the Company within 60 days of the original invoice date. Notwithstanding the foregoing, if the Customer’s account is more than 30 days past due, the Company may apply overpayments or other credits owed to the Customer against such account, without waiving any other remedies available to the Company.
The Company will endeavor to obtain a copy of the signed delivery receipt, which may be a digital signature or computer record, when requested by the Customer. The Company assumes no liability for being unable to do so, nor shall the lack of such a receipt create any legal presumption against the Company.
If for any reason the transportation process is interrupted before its completion, including due to adverse conditions, refusal of the consignee to accept delivery, instructions from the Customer or other issues causing a delay or disruption in transportation, then the Company shall be permitted to store or warehouse the Goods at a reasonable location of its choosing at the Customer’s sole cost and risk. If delivery of the Goods or any part thereof is not taken by Customer, consignee or owner of the Goods, at the time and place of delivery, Company shall be permitted to store the Goods or any part thereof at a reasonable location of its choosing, at the sole cost and risk of Customer. The liability of Company in respect to the Goods, if ever there was any, shall then entirely cease.
In such instances, the Customer appoints the Company as its agent for entering into a warehouse or storage agreement and the Customer agrees to be bound by any applicable terms and conditions of or agreements with the warehouse or storage facility.
The Customer agrees to hold the Company, including its officers, directors, employees and agents, harmless from and against any and all loss or damage occurring to the Goods while they are in the care or custody of the warehouse or storage facility, and to look solely to the warehouse or storage facility for any loss or damage.
The Customer agrees to be responsible for any storage or warehouse charges owed to any third party(ies) and to indemnify and hold the Company, including its officers, directors, employees and agents, harmless from any and all claims pertaining to such charges, including claims arising out of the exercising by the storage or warehouse facility of any statutory or contractual remedies it may have, such as a lien on the Goods. The Customer acknowledges that such charges will vary by geographic location, but shall be, at a minimum, $3 per square foot per month of storage or warehousing.
The Company shall have a general and continuing lien on any and all property (and documents relating thereto) of the Customer coming into the Company’s actual or constructive possession, custody or control for monies owed to the Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both.
To exercise its lien, the Company need only provide written notice to the Customer of its intent and the exact amount that is subject to the lien. The 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 being sent notice of lien to its last known address, the Customer posts cash or a letter of credit acceptable to the Company, or, if the amount due is in dispute, an acceptable bond in favor of the Company equal to 110% of the value of the total amount due plus all storage charges to be accrued, the Company may sell such property at a public or private sale or auction. Any net proceeds remaining after satisfaction of the Company’s lien shall be refunded to Customer.
If the proceeds of the sale are not sufficient to satisfy the Company’s lien, Customer remains liable for the balance of any unpaid charges. The rights provided by this section shall be in addition to all other rights allowed by law to the Company to recover unpaid amounts, including its reasonable attorneys’ fees.
The Customer understands and agrees that the rates or quotes do not include insurance or other compensation for loss or damage. Unless agreed to in writing by the Company, the Company is under no obligation to procure insurance for the Customer. In the event the Company does agree to procure insurance, then, absent a written agreement to the contrary, all premiums and costs in connection with procuring such insurance shall be the obligation of the Customer.
Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services.
The Customer may obtain additional liability coverage in connection with all services performed by the Company for the amount up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
In the absence of additional coverage under (b) above, and except as otherwise specified in these Terms and Conditions, the Company’s liability shall be limited as follows:
For international carriage of goods by sea – except for carriage to or from the United States of America – the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 1924 and as amended in 1968 and 1979 (the Hague-Visby Rules) shall apply. Carriage of goods by sea to or from the United States of America is subject to the Carriage of Goods by Sea Act of 1936 (COGSA). Supplementary to the Hague-Visby Rules or the COGSA, the Company’s ocean bill of lading shall apply.
For international carriage of goods by air subject to the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 (the Montreal Convention) this Montreal Convention shall apply. For shipments subject to only the Convention for the Unification of certain rules relating to international carriage by air as of 1929 (the Warsaw Convention) this Warsaw Convention shall be applicable, however, where both the Warsaw and the Montreal conventions apply the Montreal Convention shall prevail. For air freight shipments, the Company’s liability shall be limited in accordance with the terms and conditions of the air waybill. No liability of the Company shall attach unless it issued its own Air Waybill.
For all other loss, damage or claims, including to the extent that the Services are not subject to the aforementioned international conventions, statutory legislation or they are part of a multimodal shipment and it cannot be determined in which mode of transport the loss of, damage to or delay of the Goods occurred, Company’s liability for Services shall be limited to $50.00 per shipment, as applicable, and in no event shall exceed $1,000 per occurrence.
Third parties, including carriers, to whom the Goods are entrusted may limit liability for loss or damage. The Company will request excess valuation coverage from third parties on behalf of the Customer 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 the 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.
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.
Pursuant to 49 U.S.C. 14101 (b)(1), Company and Customer waive any rights and remedies specified in 49 U.S.C. Subtitle IV, Part B, except for provisions governing registration (including without limitation those contained in 49 U.S.C. 13902), insurance (including without limitation those contained in 49 U.S.C. 13906, 31138 and/or 31139) or safety fitness (including without limitation those contained in 49 U.S.C. 31144.)
