“Forwarder” means AB Global Logistics Consulting Inc.
“Customer” includes the consignor, shipper, consignee, owner of the Goods, and any person lawfully acting on behalf of any of the above persons.
“Goods” means articles of every kind and description, including their packaging, containers, or other shipping units or materials.
“Carriage” means the transportation of Goods that Customer desires Forwarder to arrange, from a place of receipt to a place of delivery.
“Services” means “Carriage” and all other agreed-to services that Forwarder arranges or performs, excluding warehousing.
“Charges” includes freight and all charges for Carriage and Services, and all expenses, costs, detention, demurrage, and any other money obligations arising out of or in any way related to the Carriage or Services, and all collection costs for freight and other amounts due from the Customer, including reasonable attorneys’ fees and court costs.
2. AGREEMENT TO TERMS AND CONDITIONS OF SERVICE
By Customer’s request to Forwarder to arrange or perform any Services, Customer agrees to these Terms and Conditions of Service, which no agent or employee of the parties may alter. Customer will prepare a bill of lading for the Carriage, or Forwarder, its authorized agents, or contracted carriers or freight forwarders will do so on Customer’s behalf. Customer understands and agrees that these Terms and Conditions of Service are available online at https://www. abglc.com/contract_terms. Forwarder may amend these Terms and Conditions of Service and will publish any amendment online at https://www.abglc.com/contract_terms. Customer’s continued use of Forwarder’s services after publication of the amended terms and conditions of service on Forwarder’s website shall constitute Customer’s acceptance of the amended Terms and Conditions of Service. The defenses and limits of liability stated in these Terms and Conditions of Service shall apply in any action against Forwarder under any legal theory, whether in contract, tort, bailment, indemnity, contribution, or otherwise.
3. FORWARDER’S UNDERTAKING
Forwarder is an ocean transportation intermediary with licensing from the Federal Maritime Commission, license number 023663, as a non-vessel-operating common carrier (“NVOCC”) and as an ocean freight forwarder.
(a) Forwarder arranges or performs the Services under these Terms and Conditions of Service.
(b) As to Carriage, Customer understands and agrees that Forwarder will arrange for third-party carriers or freight forwarders to perform the Carriage or for freight forwarders, brokers, or other intermediaries to arrange the Carriage.
(c) Forwarder performs ocean transportation as an NVOCC under the terms and conditions of contract of Forwarder’s bill of lading and under any applicable tariff and special contract. Unless Forwarder were to undertake to transport Goods by ocean and issue a bill of lading on Forwarder’s form, Customer understands and agrees that Forwarder is neither an ocean nor a motor carrier as to the Goods and that Forwarder does not hold itself out to Customer in those capacities.
4. NOTICES OF CLAIM AND TIME-BARS AS TO FORWARDER AND AS TO CARRIERS
(a) NOTICE OF CLAIM TO FORWARDER FOR ITS ASSISTANCE WITH CARRIAGE CLAIMS. Customer must provide Forwarder with written notice of a claim for the Goods’ loss, damage, or non-delivery within 90 days after delivery of the Goods or the date on which the Goods should have been delivered. Conditioned on Customer’s timely notice of claim, Forwarder will forward such a claim onto the carriers that performed or undertook to perform the Carriage of the Goods. As a further condition to Forwarder’s assisting of Customer with such a claim, Customer must first pay all Charges as to the Goods. Customer’s failure to provide written notice to Forwarder within the above 90-day period shall extinguish Forwarder’s duty to forward the claim to the potentially responsible carriers.
(b) NOTICE OF CLAIM TO FORWARDER AS TO SERVICES. Customer must provide Forwarder with written notice of a claim arising out of Services within 90 days of the date of Forwarder’s performance of such Services or the date on which Forwarder should have performed such Services. As a further condition to Forwarder’s processing of such a claim, Customer must first pay all Charges as to such Services. Customer understands and agrees that the consequence of failing to provide a timely written notice of claim is that Customer’s action against Forwarder will be time-barred.
(c) TIME-BAR AS TO FORWARDER. In any event, Forwarder shall be discharged from all liability to Customer as to any claims arising out of Services unless Customer files an action in the mandatory venue under section 21 within nine months after of the date of Forwarder’s invoice to Customer for such Services.
(d) NOTICE OF CLAIM TO CARRIERS. Carriers typically have contractual notice-of-claim periods within which a claimant must make a claim for the loss of or damage to cargo. Customer understands and agrees that it, and not Forwarder, shall be responsible to make such a timely notice of claim to carriers, understanding that the consequence of failing to make such a timely notice of claim is that Customer’s claim against the carriers of the Goods will be time-barred.
(e) TIME-BAR AS TO CARRIERS. Carriers also typically have contractual time-bar or limitations periods within which a claimant must sue the carrier for the loss of or damage to cargo. Customer understands and agrees that it, and not Forwarder, shall be responsible to file such a timely action, understanding that the consequence of failing to timely file such an action is that Customer’s action against the carriers of the Goods will be time-barred.
5. SPECIAL SECURITY/PROTECTIVE SERVICES
Forwarder’s failure to arrange any agreed-to special security services or requirements, including team drivers, shall not negate Forwarder’s limitation of liability, which is stated below in section 7.
6. CARRIERS’ POSSIBLE LIMITATIONS OF LIABILITY
Customer understands and agrees that carriers may limit liability for loss of or damage to cargoes they transport, undertake to transport, or handle. Forwarder will request declared-value or excess valuation coverage from carriers only upon receiving specific written instructions from Customer, which must agree to pay any charge for such declared-value or excess valuation coverage. Customer understands and agrees that there is a distinction between excess valuation coverage, which increases the legal liability amount of a carrier beyond a released value or limited-liability amount, and Customer’s purchase of insurance on the Goods.
7. FORWARDER’S LIMITATION OF LIABILITY; CHOICE AS TO LIMITATION AND OPPORTUNITY TO AVOID LIMITATION
(a) Forwarder has established and has offered Customer alternative levels of liability for Services. Customer states that it has had a reasonable opportunity to choose between two or more levels of Forwarder’s liability and has made its choice as to Forwarder’s liability limit as follows: Customer has had the choice to ship or receive Services as to the Goods and to pay (1) Forwarder’s regular/lower rates for goods with limited value and a corresponding limited liability for Forwarder or (2) ad valorem rates for goods not so limited in value and a corresponding increased level of liability for Forwarder, the basis for which rates is Forwarder’s regular/lower rates plus a declared valuation charge of $.75 per $100 of declared value for the Goods, the sum of which equals an “Increased Liability Rate” for the Services.
(b) Unless Customer declares the nature and value of the Goods prior to the Carriage or Services and pays the corresponding Increased Liability Rate, Customer knowingly and willingly elects to ship under Forwarder’s regular/lower rates, the consequence of which is that in no event shall Forwarder or its servants or agents be or become liable for any loss of or damage to or in connection with any Carriage Forwarder has arranged or Services Forwarder has arranged or performed, or failed to do so, in an amount exceeding $.50 per pound or $50, whichever is greater.
8. CARRIAGE METHODS/ROUTES, SUBSTITUTION OF MODE/EQUIPMENT
Customer understands and agrees that without notice to Customer, Forwarder may arrange or the carriers may perform the Carriage by:
(a) Using any means of transport or storage;
(b) Transferring the Goods from one conveyance to another, including transshipment or carrying on a truck or trailer other those that Forwarder arranged in the first instance, or any other means of transport; or
(c) Proceeding by any route in any carrier’s sole discretion, irrespective of whether such route is the nearest, most direct, customary, or advertised route.
Customer agrees that anything done or not done in accordance with the above sub-paragraphs or any resulting delay shall be within the scope of the Carriage and not a deviation.
9. MATTERS AFFECTING PERFORMANCE
If at any time and for any reason the performance of the Carriage of the Goods is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage of any kind, other than the inability of the Goods to be safely or properly carried or carried further, even though the circumstances giving rise to such matters as stated above existed at the time this contract was entered into or the Goods were received for shipment, then the carrier in question, at its sole discretion, without prior notice to Customer and irrespective of whether the Carriage has commenced, may treat the performance of the Carriage as terminated and place the Goods at Customer’s disposal at any place that the carrier, in its sole discretion, deems to be safe and convenient, at which place the Carriage shall cease. Forwarder shall nevertheless be entitled to full freight for the Carriage of the Goods and Customer shall pay any additional costs of transportation to, and delivery and storage at, such place.
10. REFUSED DELIVERY
Refusal of the consignee or Customer to take delivery of the Goods notwithstanding its having received notice of the Goods’ availability shall constitute an irrevocable waiver of all claims arising out of or in any way relating to the Goods, Carriage, or Services. Customer shall be liable for any losses, damages, expenses, and liabilities it incurs arising out of such a refusal, including the return of the Goods to their place of receipt.
11. FREIGHT AND CHARGES
(a) All freight shall be deemed fully, finally, and unconditionally earned upon a carrier’s pick-up of the Goods.
(b) All freight and Charges shall be paid without any set-off, counter-claim, or deduction.
(c) If Customer’s description of the Goods in a bill of lading or in any documents Forwarder receives from or on behalf of Customer is inaccurate, incorrect, or misleading in any respect, Customer shall pay for any actual damage that Forwarder suffers as a result, including any court costs, expenses and attorneys’ fees Forwarder incurs or pays in collecting any sums due.
(d) Payment of any Charges to anyone other than Forwarder or its authorized agent shall not be considered payment to Forwarder and shall be made at Customer’s sole risk.
(e) The class of persons that make up the definition of “Customer” shall, where applicable, be jointly and severally liable to Forwarder for payment of all freight, demurrage, detention, and Charges, including any court costs, expenses and attorneys’ fees Forwarder incurs or pays in collecting any sums due, failing which shall be considered a default by Customer in the payment of freight and Charges.
12. FORWARDER’S SPECIFIC AND GENERAL LIENS AS TO THE GOODS AND ANY PROPERTY OF CUSTOMER
(a) In addition to any specific cargo lien arising under law, including under California Civil Code section 3051.5, Forwarder shall have a general and continuing lien on the Goods and on any property of Customer coming into Forwarder’s actual or constructive possession or control as to any unpaid Charges, including for monies owed to Forwarder with regard to the goods on which Forwarder is claiming the lien, a prior shipment, or both, including freightage, dead freight, demurrage, detention, and for any expenses that Forwarder incurs or pays for storage, security, repacking, remarking, fumigation, or required disposal of Goods, for fines, dues, tolls, or commissions that Forwarder has paid or advanced on behalf of the Goods, for any sums, including for legal expenses Forwarder has incurred or paid because of any attachment or other legal proceedings brought against the Goods by governmental authorities or any person claiming an interest in the Goods. The failure to pay any Charges may result in a lien on a future goods, including the cost of storage and appropriate security for the subsequent goods that Forwarder may hold under this section. Forwarder’s lien(s) shall survive discharge or delivery of the Goods.
(b) Forwarder shall provide written notice to the Customer of Forwarder’s intent to exercise its lien rights, which notice shall set forth the exact amount of monies due. Customer shall notify all parties having an interest in the shipment(s) of Forwarder’s lien rights and the potential exercise of such rights in the absence of the payment of the monies due.
(c) Unless, within thirty 30 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 per cent of the value of the total amount due, in favor of Forwarder, guaranteeing payment of all monies due, plus all ongoing and accruing Charges, Forwarder shall have the right to sell the Goods or other property of Customer at public or private sale or auction and Forwarder shall refund to Customer any net proceeds remaining after such sale.
13. DESCRIPTION OF GOODS AND NOTIFICATION
(a) Customer’s description of the Goods in a sealed trailer, shipping container, or package by Customer or on its behalf shall not be binding on Forwarder, and the description declared by Customer on any document is information Customer provides solely for its own use. Customer understands that Forwarder has not and will not verify the contents, weight, or measurement of a sealed trailer, shipping container, or package, or the weight or measurement, or the value, quantity, quality, description, condition, marks, or numbers of the contents thereof. Forwarder is under no responsibility whatsoever in respect of such description of particulars and Customer shall indemnify and hold Forwarder harmless from and against any loss, damage, liability, and expense, including attorneys’ fees that Forwarder has incurred or paid, arising out of or in any way connected with or caused by, in whole or in part, such description of particulars.
(b) Forwarder, its agents, and servants shall not in any circumstances whatsoever be under any liability for insufficient packing or inaccuracies, obliteration or absence of marks, numbers, addresses or description, or for misdelivery due to marks or countermarks or numbers, or for failure to notify the consignee of the arrival of the Goods, notwithstanding any custom of the place of delivery to the contrary.
14. HAZARDOUS GOODS
(a) Prior to tendering hazardous goods, as defined under applicable federal and state law and regulations, Customer shall, in compliance with the laws and regulations governing the transportation of such goods, have the same properly packed, distinctly marked, and labeled, and notify Forwarder in writing of their proper description, nature, and the necessary precautions.
(b) Goods that are hazardous goods or are otherwise of an inflammable, explosive, or dangerous nature, as to which neither Forwarder nor the carrier has consented with knowledge of their nature and character, may at any time before discharge be landed at any place and destroyed or rendered innocuous by a carrier without compensation, and Customer shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the transporting conveyance or to any cargo thereon, the carrier may, in like manner, land such Goods in any place, or destroy and render them innocuous without liability on the part of the Forwarder.
(c) Customer shall indemnify and hold Forwarder harmless from and against any loss, damage, liability, and expense, including attorneys’ fees that Forwarder has incurred, arising out of or in any way connected with or caused by, in whole or in part, omission of full disclosure required by this clause or by applicable treaties, conventions, laws, codes, or regulations.
15. PERISHABLE GOODS
(a) Forwarder shall arrange Carriage of Goods of a perishable nature in ordinary trailers without special protection, services, or other measures unless Customer provides written instructions for the Carriage to be in a refrigerated, heated, electrically ventilated, or otherwise specially-equipped trailer or shipping container, or that the Goods are to receive special attention in any way. In case of refrigerated trailers or shipping containers packed by or on behalf of Customer, it undertakes not to tender for Carriage any Goods that require refrigeration without giving written notice to Forwarder of their nature and the required temperature-setting of the thermostatic controls before Forwarder’s arranging of the Carriage. Customer undertakes that the Goods have been properly stowed in the trailer or shipping container and that the thermostatic controls have been adequately set before the carrier’s receipt of the Goods and, if necessary, that the Goods have been pre-cooled before their stuffing into the trailer or shipping container. Customer’s attention is drawn to the fact that refrigerated trailers and shipping containers are not designed to freeze down Goods that have not been presented for stuffing at or below their designated carrying temperature, and Forwarder shall not be responsible for the consequences of Goods tendered at a higher temperature than that required for the Carriage. If Customer fails to comply with the foregoing requirements, then Forwarder shall not be liable for any loss of or damage to the Goods, howsoever arising.
(b) The term “apparent good order and condition” when used in a bill of lading or other document with reference to Goods that require refrigeration does not mean that the Goods were verified by Forwarder as being at the designated carrying temperature.
16. CUSTOMER-PACKED GOODS, CUSTOMER-STUFFED TRAILERS AND CONTAINERS
(a) If Goods have not been packaged, and if a trailer or shipping container has not been stuffed by or on behalf of Forwarder, then Forwarder shall not be liable for the loss of or damage to the Goods, and Customer shall indemnify and hold Forwarder harmless from and against any loss, damage, liability, and expense, including attorneys’ fees that Forwarder has incurred or paid if such loss, damage, liability, or expense arises out of or is in any way connected with or is caused by, in whole or in part:
(1) The manner in which the Goods, trailer, or shipping container was stuffed, filled, packed, or loaded; or
(2) The unsuitability of the Goods for Carriage in their packaging or in a trailer or shipping container; or
(3) The unsuitability or defective condition of the trailer or shipping container, provided that, if the trailer or shipping container had been supplied by or on behalf of Forwarder, that unsuitability or defective condition could have been apparent upon inspection by Customer at or prior to the time when the trailer or shipping container was stuffed, filled, packed, or loaded.
(b) Customer shall inspect trailers or shipping containers before stuffing them and Customer’s use of a trailer or shipping container shall be prima facie evidence of its being suitable and without defect.
17. CARRIAGE AFFECTED BY THE CONDITION OF THE GOODS
If it appears at any time that the Goods cannot safely or properly by carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the Goods or the trailer or shipping container, then the carrier may, without notice to Customer, take any measure(s) or incur any additional expense(s) to carry or to continue the Carriage, or sell or dispose of the Goods, or abandon the Carriage or store Goods, or any combination of the foregoing, under cover or in the open, at any place that the carrier, in its sole discretion, considers most appropriate, which abandonment, storage, sale, or disposal shall be deemed to constitute delivery and completion of the Carriage. Customer shall indemnify Forwarder against any additional expenses it has so incurred or paid.
18. DELAY, CONSEQUENTIAL LOSS, ETC.
(a) Forwarder does not undertake that the Goods will be transported from the place of delivery, or will arrive at the place of delivery, or will be shipped on board any particular truck or other conveyance at any particular date or time or to meet any particular market or in time for any particular use. The scheduled or advertised departure and arrival times are only expected times and may be advanced or delayed and Forwarder shall in no event be liable for direct, special, incidental, indirect, or consequential loss or damage caused by delay.
(b) Forwarder shall in no event be liable for any special, incidental, indirect, or consequential loss or damage arising from any other cause, notwithstanding Forwarder’s notice of the possibility of such damages at the time Forwarder arranged such Carriage.
19. VARIATION OF THE CONTRACT
No person has the power to waive or vary any of these Terms and Conditions of Service unless an officer of the Forwarder, in writing, has specifically agreed to such a waiver or variation.
20. PARTIAL INVALIDITY
If any provision of these Terms and Conditions of Service shall for any reason be held to be invalid or unenforceable by any court or regulatory body, then the remainder of these Terms and Conditions of Service shall be unaffected and remain in force.
21. MANDATORY LAW, VENUE, AND JURISDICTION
All claims or disputes arising out of or in any way related to the Services or these Terms and Conditions of Service shall be determined under the laws of the State of California, without regard to its conflict of laws rules. Without prejudice to a party’s right to remove an action to federal court, the exclusive and mandatory venue for any such claims or disputes shall be the federal or state courts in Los Angeles County, California, to the exclusion of all other courts. Forwarder and Customer agree to irrevocably submit to the personal jurisdiction of the above courts and to waive any jurisdictional, venue, or inconvenient forum objections to those courts.