Terms and Conditions
(Please read carefully) These terms and conditions of service constitute a legally binding contract between ”ACA” and the “Charterer”. In the event ACA renders services and issues a document containing Terms and Conditions governing such services, including, but not limited to, a Charter Agreement , the Terms and Conditions set forth in such other document(s) shall govern those services to the extent they are inconsistent with these terms and conditions.
(a) “ACA” shall mean Air Charter Authority, Charter Authority, its subsidiaries, related companies, agents and/or representatives;
(b) “Charterer” shall mean the person for which ACA is rendering service, as well as its 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 Charterer 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 Charterer, whether in paper or electronic form;
(d) “Third Parties” shall include, but not be limited to, the following: air charterers, carriers, truckmen, cartmen, forwarders, 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. ACA as an Agent. ACA acts as the “agent” of the Charterer in arranging services with Third Parties to meet the Charterer’s needs. ACA is not a carrier of any type and these terms do not comprise a contract for carriage. The Charterer shall be bound by the terms and conditions of the Third Parties nominated by ACA, including but not limited to the contracts for carriage, as accepted by ACA on the Charterer’s behalf.
3. Limitation of Actions. (a) Unless subject to a specific statute, all claims against ACA for a potential or actual loss, must be made in writing and received by ACA, within ten (10) days of the event giving rise to claim; the failure to give ACA timely notice shall be a complete defense to any suit or action commenced by Charterer. (b) All suits against ACA must be filed and properly served on ACA as follows within one (1) year from the date of the loss.
4. No Liability for the Services of Third Parties and/or Routes. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Charterer, ACA shall use reasonable care 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 ACA that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that ACA warrants or represents that such person or firm will render such services nor does ACA assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and 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; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, ACA shall reasonably cooperate with the Charterer, which shall be liable for any charges or costs incurred by ACA.
5. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by ACA to the Charterer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon ACA unless ACA subsequently in writing agrees to a specific rate or amount set forth in the quotation and payment arrangements are agreed to between ACA and the Charterer.
6. Reliance on Information Furnished. (a) Charterer acknowledges that it is required to review all documents and declarations prepared and/or filed with the Customs Service, other Government Agency and/or third parties, and will immediately advise ACA of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Charterer’s behalf; (b) In preparing and submitting customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, ACA relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by the Charterer; The Charterer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold ACA harmless from any and all claims asserted and/or liability or losses suffered by reason of the Charterer’s failure to disclose information or any incorrect or false statement by the Charterer upon which ACA reasonably relied. The Charterer agrees that the Charterer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
7. Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted limit liability for loss or damage; ACA will request excess valuation coverage only upon specific written instructions from the Charterer, 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 ACA’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.
8. Insurance. Unless requested to do so in writing and confirmed to Charterer in writing, ACA is under no obligation to procure insurance on Charterer’s behalf; in all cases, Charterer shall pay all premiums and costs in connection with procuring requested insurance. It is otherwise understood and agreed between the parties that goods tendered by the Charterer are independently insured or self-insured by the Charterer.
9. Disclaimers; Limitation of Liability. (a) Except as specifically set forth herein, ACA makes no express or implied warranties in connection with its services; (b) Subject to (d) below, Charterer agrees that in connection with any and all services performed by ACA, ACA shall only be liable for its independent negligent acts, which are the direct and proximate cause of any injury to Charterer, including loss or damage to Charterer’s goods, and ACA shall in no event be liable for the acts of third parties; (c) In connection with all services performed by ACA, Charterer 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 ACA prior to rendering services for the covered transaction(s). (d) In the absence of additional coverage under (c) above, ACA’s liability shall be limited to the following: (i) where the claim arises from activities relating to air charter brokerage, two percent (2.5%) of the total charter price per flight secured or to be secured per the governing Charter Agreement; (ii) where the claim arises from activities other than air charter brokerage, or where a Charter Agreement has not yet been executed between the parties, $50.00 per shipment or transaction. (e) In no event shall ACA 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.
10. Payment in Advance All charges must be paid by the Charterer in advance unless ACA agrees in writing to extend credit to the Charterer; the granting of credit to a Charterer in connection with a particular transaction shall not be considered a waiver of this provision by ACA.
11. Indemnification The Charterer agrees to indemnify, defend, and hold ACA harmless from any claims and/or liability arising from the importation or exportation of Charterer’s merchandise and/or any conduct of the Charterer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold ACA harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney’s fees, which ACA 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 ACA, it shall give notice in writing to the Charterer by mail at its address on file with ACA.
12. Letters of Credit ACA shall use reasonable care regarding written instructions relating to 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.
13. Forfeiture of Discounts and Costs of Collection. All discounts offered, as indicated on the invoice faces, are forfeited should the Charterer fail to comply in all respects with payment terms. In any dispute involving monies owed to ACA, ACA shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by ACA.
14. No Duty to Maintain Records The Charterer 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, ACA 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 Charterer.
15. Obtaining Binding Rulings, Filing Protests, etc. Unless requested by the Charterer in writing and agreed to by ACA in writing, ACA 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.
16. Preparation and Issuance Air Waybill The Charterer shall be responsible for the issue and delivery of all Air Waybills. Where ACA is requested by the Charterer to prepare an air waybill in capacity as agent, ACA will then recommend a third party to assist with the preparation of the Air Waybill, ACA and the third party 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 the Charterer and the Charterer agrees to pay for same, ACA and the third party shall rely upon and use the cargo weight and particulars supplied by Charterer.
17. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by both the Charterer and ACA; any attempt to unilaterally modify, alter or amend same shall be null and void.
18. Compensation of ACA. The compensation of ACA for its services shall be included with the rates and charges of all carriers and other agencies selected by ACA to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by ACA from carriers, insurers and others in connection with the shipment. In any referral for collection or action against the Charterer for monies due to ACA, upon recovery by ACA, the Charterer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
19. 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.
20. 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 New York without giving consideration to principles of conflict of law. The Charterer and ACA: (a) irrevocably consent to the jurisdiction of the State and Federal courts located in the State of New York. (b) agree that any action relating to the services performed by ACA, shall only be brought in said courts; (c) consent to the exercise of in personam jurisdiction by said courts over it, and (d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.