CJ Logistics Freight America, LLC

Freight Forwarding Terms and Conditions

These Terms and Conditions (“Terms”) constitute a legally binding contract between the Company and the Customer respecting the services as defined below. In the event the Company issues a specific separate document containing other terms and conditions governing the Services, the terms and conditions set forth in such other document(s) shall govern those services.

1. Definitions.

(a) "Company" shall mean CJ Logistics Freight America, LLC, as well as its subsidiaries, related companies, assignees, successors agents and/or representatives;

(b) "Customer" shall mean the person 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;

(c) "Documentation" shall mean all information received directly or indirectly from Customs. Whether in paper or electronic form;

(d) “Export Control and Trade Sanctions” shall mean any export control or trade sanction in force by any government, agency, or non-governmental body, with competent jurisdiction;

(e) "Ocean Transportation Intermediaries" ("OTI") shall include an "ocean freight forwarder" and a "non-vessel operating carrier";

(f) "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."

2. Company as Agent.

The Company acts as the "agent" of the Customer for the purposes of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filling of export and security documentation on behalf of the Customer and other dealings with Government Agencies, or for arranging for transportation services or other logistics services in any capacity other than as a carrier. Notwithstanding the above, the Customer shall have no right to control, direct, or obligate, any employee of the Company.

3. Limitations of Actions.

(a) 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 ninety (90) days of the event giving rise to such claim; and the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer at any time thereafter.

(b) Any claims against Company must be filed served on Company as follows:

(i) For ocean transportation claims: within one (1) year from the date of the loss.

(ii) For air transportation claims: within two (2) years from the date of the loss.

(iii) For claims arising out of the preparation and/or submission of an import entry(ies), the earlier of, 90 days after the entry date(s) or 75 days after the date(s) of liquidation.

(iv) For any and all other claims of any other type: within two (2) years from the event giving rise to such claim

4. No Liability for The Selection of Services of Third Parties and/or Routes.

Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use commercially reasonable effort in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment. Advice by the Company 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 such person or firm will render such services nor does Company assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and Company shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party. Any and all claims in connection with the acts of a third party shall be brought solely against such third party and/or its agents; however, in connection with any such claim Company shall reasonably cooperate with Customer at Customer’s expense.

5. 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 agrees in writing to undertake the handling or transportation of the shipment at a specific rate or amount set forth on such quotation and only if payment arrangements are agreed to between the Company and Customer in advance.

6. Reliance.

Customer understands, acknowledges, and agrees that Company is reliant on Customer to provide correct and accurate instructions and documentation for Company to provide to third parties including without limitation, government agencies, for clearing and handling of transportation services. Customer understands, acknowledges, and agrees that it has a sole, non-delegable, affirmative duty to use best efforts to provide Company with correct and accurate instructions and documentation, whether written or in electronic format, to carefully review any such instructions and/or documentation and/or data provided to Company prior to providing it to Company, and to promptly disclose any errors, or any incorrect, incomplete, or false information provided by Customer or its agents, representatives or contractors. Customer acknowledges the sole responsibility for compliance and recognizes the affirmative duty to notify the Company of any discrepancies in documentation provided by Company. Customer acknowledges its duty to provide verified weights obtained on calibrated and certified equipment for all cargo tendered. Customer understands, acknowledges, and agrees that any failure on the part of Customer to perform in accordance with this Section shall be subject to indemnification as set forth herein.

7. Customer Legal Compliance.

Customer warrants and represents that it and all products or cargo tendered or deposited pursuant to this Agreement will comply at all times with all laws, rules, regulations, conventions, and practices applicable in the countries in or through which the Services will be performed. Customer agrees to comply with any and all applicable export control and trade sanctions laws and regulations (“Export Control and Trade Sanctions”), and further: (a) Customer warrants that neither it nor its directors, officers, or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions; (b) Customer agrees not to request services in connection with products, cargo, countries, regions, or parties subject to Export Control and Trade Sanctions (absent required government authorization, license, permit, or prior agreement with Company); and (c) Customer agrees that Company may refuse to receive, process, or release any order that appears to Company, in Company’s sole discretion, to involve products, cargo, countries, regions, or parties subject to Export Control and Trade Sanctions.

8. 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 and at Customer’s sole expense. In the absence or written instructions or the refusal of the third party to agree to a higher declared value, and at the Company's sole 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.

9. Insurance.

Unless requested to do so in writing, and confirmed to Customer by Company in writing, Company is under no obligation to procure insurance on Customer's behalf. If requested by Customer, Customer shall pay all premiums and costs in connection with procuring such insurance.

10. Disclaimers; Limitation of Liability.

(a). Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services; (b). 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 therefore, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s). (c). In the absence of additional coverage under (b) above, the Company's liability shall be limited to the following: (i). Where the claim arises from activities other than those relating to customs business, $50.00 per shipment or transaction, or (ii). Where the claim arises from activities relating to "Customs business," $50.00 per entry or the amount of brokerage fees paid to Company for the entry whichever is less; (d). In no event shall the 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.

11. Advancing Money.

All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer. The granting of credit to a Customer in connection with a particular translation shall not be considered a waiver of this provision by the Company.

12. Indemnification.

The Customer agrees to indemnify, defend, and hold the Company harmless from and against any and all claims and/or liabilities, damages, costs, expenses, fines, penalties and/or attorney's fees arising from or relating to: (a) any negligent act or omission of or by Customer or its agents,, including but not limited to inaccurately supplied information, instructions, documentation, or import, export, shipping, or security data, whether or not such act or omission is a violation of state, federal or local law, (b) breach by Customer of any term or condition contained in these Terms, or (c) as otherwise set forth herein whether in Section 6 or otherwise. Either Party shall notify promptly the other Party of any related suit or claim brought against such party in connection with this Section 12.

13. C.O.D. Or Cash Collect Shipments.

Company shall use reasonable care regarding written instructions relating to "Cash/Collect on Delivery (C.O.D)" shipments, bank drafts, cashier's and/or certified check, 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.

14. Invoicing Cost of Collection.

Company shall invoice Customer. Payment shall be due fifteen (15) from the date of invoice. In the event that any line item on any invoice is reasonably disputed by Customer, then Customer shall pay the invoice in full and notify CJLA in writing of the reason for the dispute within ten (10) business days of receipt of the invoice. Customer may not dispute an invoice item after ten (10) business days. Both parties agree to use their reasonable best efforts to resolve disputes within thirty (30) days of notification of such dispute. Any dispute not resolved in thirty (30) days will, at the request of either party be submitted to arbitration pursuant to this Agreement. Any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney's fees and interest of one percent (1%) plus the prime interest rate as published by Wall Street Journal on the first day of the month in which the aforementioned thirty (30) day period ends. Company reserves the right to demand payment of any past due charges prior to releasing any shipment(s), including the right of Company to demand payment upon delivery of any shipment(s) at any time. Company further reserves the right to demand prepayment for any outlays Company is asked to pay on behalf of the Customer. Company may agree to a lower amount. If at any point the company chooses to waive the collecting of this fee that waiver shall not be construed to signify a continuing waiver by the company of its rights under this paragraph.

15. General Lien and Right to Sell Customer's Property.

(a) 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 lien is claimed, a prior shipment(s), and/or both, the Company’s lien shall survive discharges and delivery;

(b) 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 exercise of such lien.

(c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, in the amount due is in dispute, and acceptable bond equal to 110% of the value or the total amount due as claimed by Company, in favor of company, guaranteeing payment of 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.

16. No Duty To Maintain Records for Customer.

Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 U.S.C. §1508 and 1509) the Customer 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 and based on a quoted fee, 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.

17. Obtaining Binding Rulings, Filing Protests.

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, and so on.

18. 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 cargo weight supplied by Customer.

19 . Modification, Integration Termination.

These Terms of service represent the whole of the agreement between the parties, they may only be modified, altered or amended in writing signed by both Customer and Company. Any attempt to unilaterally modify, alter or amend these Terms, shall be null and void. This agreement shall commence on the first day that services are provided and remain in effect until the latter of thirty (30) days past the provision of a written notice of termination by either party, or thirty (30) days past the cessation of services being performed after receipt of written notice of termination.

20. Compensation.

Customer shall compensate Company for all services, including all rates, charges, accrued from carriers, providers, or agencies, selected by Company or otherwise, exclusive of brokerage commissions, dividends, in nexus to services provided to customer. Customer shall compensate Company for transportation services provided by Company, governed by all applicable tariffs, or mutually agreed upon rates between Company and Customer. The Company has the right to increase rates in the event that the actual transportation requirements vary from the transportation requirements provided by the customer or in the event that a change in market conditions result in increased costs. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney’s fee.

21. Force Majeure.

Company shall not be liable for losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or its subcontractors, including but not limited to: (i) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster. (ii) war, hijacking, robbery, theft or terrorist activities; (iii) incidents or deteriorations to means of transportation, (iv) embargoes, (v) civil commotions or riots, (vi) defects, nature or inherent vice of the goods; (vii) acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else who may have an interest in the shipment, (viii) acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or (ix) strikes, lockouts or other labor conflicts.

22. Severability.

In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in Full force and effect. Company's decision to waive any provision herein, either by conduct or otherwise, shall not be deems to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.

23. Governing Law; Consent to Jurisdiction and Venue.

These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Illinois without consideration to the principles of conflict of law. In the event of any dispute that cannot be resolved, Customer and Company irrevocably consent to the exclusive jurisdiction of the American Arbitration Association (“AAA”), in accordance with the Arbitration Rules of the AAA, and the judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall be selected by mutual agreement from a panel provided by the AAA. The parties may obtain any discovery in aid of the arbitration in accordance with the State of Illinois rules of discovery; provided, however, that discovery by means of requests for admission shall not be permitted. The arbitration award shall be in writing and shall specify the factual and legal bases for the award. The award shall be binding upon the parties.

24. Confidentiality.

The parties acknowledge that, in connection with Company’s performance of the Services, each party may have access to confidential or proprietary information (“Intellectual Property”) of the other party.

(a). Such Intellectual Property may or may not be confidential and shall for purposes of this Agreement include but not be limited to, computer hardware and software, “know-how”, all “trade secrets”, technical information, business methods, business processes, pricing, algorithms, product designs, blueprints, drawings, models, prototypes or inventions (inventions shall mean any new machines, methods, processes, uses, compositions or matter, designs or other configurations or apparatus of any kind, discovered, conceived, developed, made or produced or any improvements to them and shall not be limited to the definition of an invention contained in the patent laws of the United States). Neither party shall disclose any such confidential or proprietary information to, or use any such information for the benefit of, any other person, firm, corporation or other entity without the prior written consent of the other party.

(b). In utilizing such Intellectual Property neither party transfers any right title or interest to its Intellectual Property to the other and at the conclusion of this Agreement neither party shall have the right to use the Intellectual Property of the other without the express written consent of the other.

(c). The above provisions shall not apply to information that: (1) may be demonstrated to have been in the party’s possession prior to disclosure; (2) is furnished to the party by a person or entity not a party to this Agreement where such information was not received directly or indirectly from the party; or (3) has become part of the public domain by publication or otherwise through no act of the party to whom information has been disclosed.

(d). Customer specifically agrees that Customer will not use Company’s Intellectual Property for Customer’s benefit within those portions of Customer’s logistic or supply chain not serviced by Company without Company’s express written consent.

(e). The parties agree that a breach of the provisions of this paragraph of this Agreement would cause the other party to suffer irreparable damage that could not be adequately remedied by an action at law. Accordingly, they agree that the injured party shall have the right to injunctive relief to prevent an actual or threatened breach of this paragraph, such right being in addition to all other rights and remedies might be available to the disclosing party at law, in equity or otherwise. The obligations of this paragraph shall continue for three (3) years after termination of this Agreement.

25. Miscellaneous:

(a). Personnel Matters. Except as the parties may agree in writing, neither Customer nor Company shall employ, directly or indirectly, any former employee of the other for a period at least one (1) year after the termination of such employee.

(b). Cooperation of Parties. Each party agrees to provide all relevant information available to it as may be necessary for the parties to carry out the purposes of this Agreement. Nothing in this Agreement requires disclosure of confidential business information not specifically required to achieve the stated purposes and goals stated in this Agreement.

(c). Electronic Data Interchange. The parties agree that in order to accomplish the business of Customer as contemplated by this Agreement they may be required to support electronic data interchange (“EDI”). The costs of establishing such EDI transaction sets shall be paid by the Customer.