Terms & Conditions
MERCURY BUSINESS SERVICES, INC. TERMS AND CONDITIONS OF SERVICE
These terms and conditions are effective immediately and are subject to change without notice; see www.shipmercury.com for a current copy. These Terms and Conditions supersede and replace all previous Terms and Conditions published by Mercury Business Services, Inc.
The following TERMS AND CONDITIONS OF SERVICE shall apply to all services performed by MERCURY BUSINESS SERVICES, INC., including but not limited to freight forwarding, indirect air carrier services, property broker services and arranging for warehousing services in connection with any of the foregoing or as a standalone service, and shall be binding on all customers, shippers, exporters, importers, senders, receivers, owners, consignors, consignees, transferors, transferees and third parties to or for whom MERCURY BUSINESS SERVICES, INC. provides services, as specified further below.
FOR PURPOSES OF THESE TERMS AND CONDITIONS, customer or customers shall include, but not necessarily be limited to the shipper, consignee, owner, person requesting arranging for storage services, and any of their respective representatives or agents or any person or entity claiming an interest in goods in connection with which MERCURY BUSINESS SERVICES, INC. performs any service.
GENERAL TERMS AND CONDITIONS OF SERVICE
Application and Scope
These Terms and Conditions of Service apply to all transportation and related services provided in interstate and intrastate commerce to, from or within the United States (and its territories), Canada, and Mexico and/or other foreign or international commerce by Mercury Business Services, Inc. in accordance with their respective capacities set forth below:
- Mercury Business Services, Inc. (Mercury), is a domestic (U.S.) and international air freight forwarder providing services as a duly certified Indirect Air Carrier, NE0807003, including the issuance of house air waybills for individual shipments, assembly, consolidation and arrangement of transportation of goods via direct air carriers, pursuant to exemptions at 49 U.S.C. 13531 and 13506(8).
- Mercury is authorized as a surface freight forwarder by the Federal Motor Carrier Safety Administration under Docket No. FF-10639-P to provide interstate ground transportation and related forwarding services.
- Mercury is authorized to operate as an interstate property broker, as defined by 49 U.S.C. 13102(2) and 49 C.F.R. 371.2(a) of the Regulations of the Federal Motor Carrier Safety Administration. Except as may otherwise be agreed to in writing, Mercurys sole service when acting as property broker is to arrange for the transportation of customers freight by motor or rail carriers. In so doing, Mercury does not act in the capacity of a motor or rail carrier and does not assume any care custody or control over the customers freight or the manner and means in which motor or rail carriers perform their services.
- Notwithstanding anything else contained in these Terms and Conditions, or elsewhere, Mercury is neither a licensed customs house broker, ocean freight forwarder nor non-vessel operating common carrier, nor does it engage in providing such services on behalf of Customers. Rather, as part of its services which are subject to these Terms and Conditions, Mercury may arrange with licensed customs house brokers, ocean freight forwarders and non-vessel operating common carriers to provide their respective services on behalf of Customers, to the extent permitted by applicable law and regulation.
- In addition, Mercury may, in connection with its freight forwarding or property brokerage services, or as a standalone service, arrange for the storage of a customers goods by an independent warehouse operator. In such event, Mercury takes no responsibility for the care, custody or control of the customers stored goods. The warehouse operator is wholly responsible for the care, custody and control of the customers goods and the warehouse operators terms and conditions solely apply to the storage of the customers goods, copies of which are available upon request.
- Notwithstanding anything else contained in these Terms and Conditions, or elsewhere, when acting as a property broker Mercury assumes no liability for loss, damage or delay of shipments it arranges to be transported by interstate motor carriers on behalf of shippers. Any claim arising out of or relating to such shipments, whether filed by Mercury on behalf of the shipper or directly by the shipper with the carrier that transported a shippers goods, are subject to the carriers standard terms and conditions and/or bill of lading terms and or tariffs rule in effect at the time of the shipment.
Unless otherwise provided for
herein, the following terms are defined as follows:
"Mercury", MBS, "we", "our", Carrier and "us" refer to MERCURY BUSINESS SERVICES, INC. , and their respective employees, agents, successors, assigns, divisions, affiliates and any subcontractors hired by Mercury.
"Customer" means the person, firm or company on whose behalf Mercury has been hired to perform services, as well as the customers agents and/or representatives and any principal on whose behalf it is acting or has an interest in the goods in connection with which Mercury has been hired to perform any service, in any of its service capacities. 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.
"Shipper" or "consignor" means the person tendering goods to Mercury for transport or storage and/or the person for whose account goods are being transported or stored, and any and all agents and/or representatives of the Shipper, including, but not limited to, secured parties, warehousemen, buyers and/or sellers, shippers agents, including, without limitation, freight forwarders, customs brokers or property brokers insurers and underwriters, break-bulk agents, and consignees.
"Consignee" or "receiver" means the person named as the "consignee" on any shippers instructions, receipt, truck tag, waybill, bill of lading or other document, the owner of the Goods, and all other persons lawfully entitled to possession of the Goods upon delivery.
"Third Parties" shall include, but not be limited to, the following: "carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen, air carriers and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise".
"Documentation" shall mean all information received directly or indirectly from Customer or Third Parties, whether in paper or electronic form.
"You" and "yours" shall refer to our customer, the shipper/consignor, the receiver/consignee, their employees and agents and to all others with interest in the shipment.
"Waybill" means a non-Negotiable Waybill, Bill of Lading, Delivery Receipt or similar shipping document used to identify shipments tendered to Mercury for transportation.
"Goods", shipment, "cargo", "items", "pieces", "products", "commodities", Property and "shipment" refers to articles of every kind or description, including their packaging, containers or other shipping units tendered to an accepted by Mercury for transportation, storage and/or delivery as described or identified on the face of the Waybill.
"Prepaid" or "PPD" is a freight payment term meaning that the charges for transportation and other services rendered at the request of the shipper, or requested by the consignee for the shipper, are to be paid for by the shipper or its designated agent. Notwithstanding the shippers primary responsibility for payment on a prepaid shipment, both the shipper and consignee are jointly liable for the payment of charges for transportation or other services because both the shipper and consignee receive the benefit of the services.
"Terms and Conditions" refers to these Terms and Conditions of Service a copy of which is available upon request and is published and maintained on Mercurys website and may be viewed at http://www.shipmercury.com/Home/Terms .
"Conditions of Contract" refers to the Conditions of Contract delineated below.
These Terms and Conditions shall constitute a binding contract on all customers, shippers and consignees to or for whom Mercury provides services. These Terms and Conditions supersede and negate any claimed, alleged or asserted oral contract, promise, representation or understanding among the parties with respect to services to be performed by Mercury.
These Terms and Conditions shall apply to all services provided by Mercury, except to the extent contrary to applicable federal or state law, rule or regulation, and/or except to the extent Mercury otherwise specifically agrees, in writing.
It is mutually agreed that these Terms and Conditions shall, except as otherwise provided in the Terms and Conditions, exclusively govern the rights and duties of Mercury and all persons or entities described hereinabove. When Mercury is acting in its capacity as a freight forwarder of property in interstate commerce, the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 14706 will govern.
By accepting a quote and/or tendering a shipment for rendering of services by Mercury, Customer, for itself and all other parties at any time having an interest in the goods, agrees to these Terms and Conditions, which no agent or employee of the parties may alter. No employee or agent of Mercury is authorized to change, modify or waive any of these Terms and Conditions without the written consent of an authorized executive of Mercury.
Customer warrants that:
- It is either the owner or authorized agent of the owner of the goods and that it is accepting these Conditions of this Contract not only for itself, but also as agent for and on behalf of the owner.
- The description and particulars of any goods furnished by or on behalf of Customer are complete and accurate.
- All goods will be properly and sufficiently prepared and packed suitable to the mode of transport to protect the goods from loss or damage, and properly labeled and/or marked appropriate for the mode of transport.
- The goods do not comprise or contain any explosive, incendiary or other device, hazardous substance or weapon which may endanger life or the safety of any transport conveyance or which may cause or is likely to cause loss, damage, injury to or death of any person or property.
- The goods do not contain any undeclared dangerous or hazardous materials within the meaning of current IATA Dangerous Goods Regulations ("Regulations") and Customer will not tender such goods to Mercury without obtaining Mercury's prior consent. Where such consent is granted, Customer warrants that all such goods are packed, marked, and labeled and otherwise meet all documentation requirements and provisions of the Regulations and it has complied with all statutes, rules and regulations of any and all governments and governmental agencies governing its activities.
- Customer warrants and agrees that it will, in writing, provide any special handling instructions in connection with any cargo it requests be handled by Mercury. Failure of the Customer to provide such written instructions shall be presumptively a waiver of any special handling the cargo may require, whether or not Mercury otherwise knew, or should have known, that the cargo might require special handling.
- To the fullest extent possible. Customer shall obtain and provide any and all documents necessary and required for the transportation, export or import of its cargo, or as may be required for the importation of the cargo into the commerce of the country of destination when being exported from the U.S., including, without limitation, any export or import licenses. Under no circumstances shall Mercury be responsible for any delay, seizure, return, fine penalty, forfeiture, storage or return shipment charges, or any other consequence due to the failure of the Customer to provide any and all documents required to ensure the shipment can be delivered to the intended recipient.
- To the extent not otherwise specified herein, Customer shall comply with all applicable laws and other government regulations of any jurisdiction to, from or through which the shipment may be carried, including those relating to the packaging, carriage or delivery of the shipment, and shall furnish such information in writing and attach such documents as may be necessary to comply with such laws and regulations. Mercury shall not be obligated to inquire into the correctness or sufficiency of such information or documents, perform any inspection or weighing of customers goods, or engage in any other activity regarding verifying the quantity or condition of customers goods. Mercury shall not be liable to Customer for damage, delay, loss or expense due to the Customer's failure to comply with this provision.
- Undertakes to complete the carriage of a shipment tendered to it with reasonable dispatch.
- May substitute alternate carriers or aircraft and may without notice and with due regard to the interests of the Customer substitute other means of transportation.
- Is authorized by Customer to select the routing and all intermediate stopping places it deems appropriate or to change or deviate from any routing instructions shown on the face hereof.
- For international air shipments, Mercury reserves the option to act as an agent of the airline instead of as a Carrier, in which event the direct airline's tariffs shall apply.
- Is authorized, unless express instructions in writing are received from the Customer, to select and engage carriers, truck men, lightermen, forwarders, customs brokers, agents, warehousemen and others, as required, to transport, store, deal with and deliver the goods, all of whom shall be considered as the agents of the Customer, and the goods may be entrusted to such agencies subject to all conditions as to limitation of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts or tariffs issued by such carriers, truck men, lightermen, forwarders, customs brokers, agents, warehousemen and others.
- If requested by customer may arrange for the storage of customers goods, subject to the limitations and immunities set for in these Terms and Conditions.
If there is any conflict or inconsistency between these Terms and Conditions and, without limitation, any customers or shippers instructions, shippers bill of lading or other shippers transportation documents, or communications relating to a shipment, label, or any other bill of lading issued in connection with services provided by Mercury, the Terms and Conditions contained herein shall control and govern.
Notwithstanding anything else contained in these Terms and Conditions they are subject to amendment by Mercury without notice. Any amendment to these Terms and Conditions shall be published on Mercurys website at http://www.shipmercury.com/Home/Terms. Your continued use of Mercurys services after publication of the amended Terms and Conditions on our website shall constitute acceptance of the amended Terms and Conditions.
Advancement of Charges
Upon Customers request, Mercury may, in its sole discretion, advance on the Customers behalf freight charges, storage charges, customs duties and/or other related charges. For each such advancement of charges, a service fee of 2.5% of the advanced amount will be assessed, subject to a minimum advancement fee of $15.00.
Mercury reserves the right to require the amount of any advancement of any charges to be deposited with Mercury in cash prior to advancing the charges.
Application of Charges
- Except as otherwise provided for herein or in a separate written contract, transportation charges and/or storage for a shipment will be assessed on the gross weight of the shipment based on the greater of:
- The actual weight, or
- The cubic dimensional weight determined in accordance with the Dimensional Weight Charge explanation below.
- All charges, of whatever nature or kind will be assessed on the basis of the service shown on the Waybill, other transportation document, warehouse receipt or agreement, or shippers letter of instructions, as applicable, at the rates in effect on the day of acceptance of the shipment.
- In computing charges, fractions will be rounded to the next higher cent.
- Fractions of pounds will be assessed at the charge for the next higher pound. Fractions of kilograms will be rounded up to the next higher kilogram.
- Shipments may be subject to a Dimensional Weight Charge (or DIM Factor) depending upon the weight, density and/or measurement of the shipment. To obtain a quote or for more details about the applicability of Mercurys Dimensional Weight Charge, please contact Mercury Customer Service.
- In case of loss or damage, the weight to determine Mercury's limit of liability shall be the chargeable weight of the shipment OR a pro rata share in the case of a partial shipment loss or damage, subject to the limitations of liability set for the below.
Charges Prepaid or Collect
Shipments will be accepted with freight payment terms stated as prepaid (by the shipper). When requested by the shipper or the consignee and subject to approval by Mercury shipments may be accepted with collect (from the consignee) payment terms. In that case, if the consignee should refuse or fail to make payment for any reason, liability for payment shall revert to the shipper.
Invoicing and Payment of Charges
All invoices must be paid by Customer as agreed, but in no circumstances more than thirty (30) calendar days from the invoice date, in full without set off or deduction, unless otherwise agreed to by Mercury in writing. If Mercury agrees to extend credit to customer in connection with a particular transaction it shall not be considered a waiver of this provision by Mercury. Moreover, Mercury shall be under no obligation to advance transportation, storage or charges, customs duties or taxes on any shipment, nor shall any advance by Mercury be construed as a waiver of the provisions hereof.
In the event payment of invoices is not received within thirty (30) calendar days, or such other agreed upon credit period, such invoices will be considered past due and any payments made thereafter shall be considered a late payment. Past due invoices and late payments shall be subject to an interest charge of 5% per month, or the highest percentage permitted by law, added to all outstanding amounts and such other late charges as may be applicable under the terms of our credit application. In the event it becomes necessary to commence a lawsuit to recover past due invoices or late payments, we will be entitled to recover reasonable attorneys fees and costs incurred in the collection of these invoices.
Nothing herein shall limit the right of Mercury to require prepayment or a guarantee of the transportation or other charges at the time of shipment or prior to delivery.
Dangerous Goods/Hazardous Materials
Prior to shipment or storage, Shipper must provide Mercury in writing the details of any type of hazardous material or dangerous goods (Hazmat) it proposes to ship with Mercury, together with all documents necessary and proper for the booking and transport of such cargo, consistent with the authorities listed below, or elsewhere in this Agreement. Mercury retains the right not to undertake handling of any Hazmat shipment until and if it is satisfied it has all the information and documentation needed to properly book and transport the Hazmat. Shipper waives any claim of delay, or any other claim which may result, due to Mercury ensuring it has received from the shipper all that is necessary to properly transport a Hazmat Shipment. Moreover, notwithstanding anything else contained in this provision or this Agreement, Mercury retains the right to refuse any shipment, whether or not Hazmat, for any reason.
Hazmat means those commodities, which are transported in accordance with the provisions set forth in the rules and regulations in:
- Title 49 of the U.S. Code of Federal Regulations ("CFR"), revisions thereto or reissues thereof.
- The "Dangerous Goods Regulations" published by the International Air Transport Association ("IATA"), revisions thereto or reissues thereof.
- The International Civil Aviation Organization ("ICAO") "Technical Instructions for the Safe Transport of Dangerous Goods by Air" published by ICAO, revisions thereto or reissues thereof.
- The "International Maritime Dangerous Goods (IMDG) Code" published by the International Maritime Organization, revisions thereto or reissues thereof.
If Mercury accepts for transport the shipment, then the shipper must comply with all of the rules and regulations set forth in:
- Title 49 of the U.S. Code of Federal Regulations ("CFR"), revisions thereto and reissues thereof.
- The "Dangerous Goods Regulations" published by the International Air Transport Association ("IATA"), revisions thereto and reissues thereof.
- The International Civil Aviation Organization ("ICAO") "Technical instructions for the Safe Transport of Dangerous Goods by Air" published by ICAO, revisions thereto or reissues thereof.
- The "International Maritime Dangerous Goods (IMDG) Code" published by the International Maritime Organization, revisions thereto or reissues thereof.
If the shipment contains Dangerous Goods/Hazardous Material, the shipper shall have the responsibility to so state on the Waybill and shall also submit a signed Shipper's Declaration for Dangerous Goods/Hazardous Materials.
All shipments of Dangerous Goods/Hazardous Materials between points in the United States will be assessed a minimum service charge of $30.00 per shipment for handling and transportation of such goods in addition to all other applicable charges.
All shipments of Dangerous Goods/Hazardous Materials to, from or between points outside the United States may be subject to additional service charges for handling and transportation of dangerous goods. Mercury shall determine the amount of such charges, which may vary depending upon, among other things, the nature of the goods, the origin, the destination and the mode of transportation.
Shipper agrees to be in compliance with all State and Federal statutory requirements with respect to shipping Dangerous Goods and/or Hazardous Materials.
Mercury reserves the right to reject any goods of a dangerous or damaging nature, any security classified cargo, and any goods subject to the Arms Export Control Act. If such goods are accepted and then in the opinion of Mercury it decides that such goods constitute a risk to other shipments, property, life or health, Mercury reserves the right at the expense of Customer to remove or otherwise deal with the goods. Customer will be responsible for the suitable reception, handling, and storage of such cargo in accordance with the Regulations and all other international, federal, state and local ordinances, regulations and instruments.
Document Retention/TSA Regulations
All cargo tendered for air transportation is subject to security regulations of the Department of Homeland Security/Transportation Security Administration (TSA), and as appropriate the regulations of other government agencies. Copies of all relevant shipping documents showing the cargo's consignee, consignor, description and other relevant data will be retained on file for at least thirty (30) days, or as required by the regulations of cognizant government agencies, including, without limitation, TSA, the U.S. Department of Commerce Export Administration, U.S. Customs and Border Protection. and the U.S. Department of Transportation.
In particular, TSA, which has authority over the security and safety of the transportation systems within and connecting to the U.S., has instituted regulations and amendments that govern the movement of cargo. All shippers must comply with all applicable TSA regulations, as well as Mercurys policies and procedures. In the event you fail to comply with any applicable regulations, policies or procedures, we cannot ensure requested service levels or that your shipment will be transported via aircraft, and we reserve the right to use alternate means to deliver your shipments. If you have any questions about transporting shipments by air or applicable regulations, policies or procedures, please call Mercury to speak with a customer service representative.
Inspection of Shipments
General All Shipments Mercury may, but shall not be obligated to, inspect or weigh any shipment. No liability shall attach to Mercury if Mercury refuses to carry or arrange for the carriage or storage of a shipment based on a good faith determination of what it understands to be the applicable law, regulation, demand, order or requirement. Additionally, all shipments may be subject to inspection by:
- The carrier[s] or their agent[s]
- Government officials
- Personnel authorized by the government to inspect shipments.
Inspection of Air Shipments In accordance with TSA regulations all shipments transported on aircraft are subject to inspection or being searched by Mercury, its agents, government officials or other authorized personnel to ensure the security and safety of any aircraft and its passengers. By tendering your cargo for transportation you consent to the search or inspection of your cargo.
Liabilities Not Assumed
Except as may otherwise be prohibited by law, these Terms and Conditions, or as agreed to by Mercury, carriers or warehousemen that Mercury selects for transport or to store customers goods, Mercury shall not be liable to the customer or shipper or to any other person that may claim an interest in the goods for any miss-delivery, missed pickup, non-delivery, delay, damage or loss of whatever nature or kind, arising out of or in connection with the shipment, storage or other services performed or arranged for by Mercury
Without limiting the generality of the foregoing, neither Mercury nor the carriers, warehousemen or others it selects to transport, store or provide other services in connection with a shipment, shall be liable for any loss, damage, miss-delivery, non-delivery, or other result caused by:
- The act, default or omission of the shipper, consignee or any other party claiming an interest in the shipment including, but not limited to, incorrect declaration of cargo, improper or insufficient packing, securing, marking or addressing of your shipment, or for the acts or omissions of the recipient.
- The nature of the shipment or any defect, characteristics or inherent fault thereof.
- Failure of the shipper or consignee to observe any of the rules contained in these Terms and Conditions.
- Acts of God, weather conditions, mechanical delay of aircraft or other equipment failures, perils of the air, public enemies, public authorities acting with actual or apparent authority, acts or omission Mercury Business Services, Inc // 02212018 Page 8 of custom officials, authority of law, quarantine, war, threat of or acts of terrorism, riots, strikes or civil commotion.
- Acts or omissions of any person other than Mercury, including delivery instructions from the shipper or consignee with which Mercury complies.
- Any special, exemplary, punitive or consequential damages, including, without limitation, any loss of revenue profits or business opportunity, whether or not Mercury knew beforehand such damages might be incurred. Except as otherwise provided for in this Agreement or Mercury’s bill of lading, or other transportation document issued by Mercury or any carrier it selects to transport a shipment, Mercury’s liability shall be limited to a refund of the shipping charges in the event of any miss-delivery, missed pickup, non-delivery, delay, damage or loss of whatever nature.
- Erasure of data from or the loss or irretrievability of data stored on magnetic tapes, files or other storage media, or erasure or damage of photographic images or soundtracks from exposed film.
- The loss of any personal or financial information including, but not limited to, social security numbers, dates of birth, driver's license numbers, credit card numbers and financial account information.
- Shipments released without obtaining a signature at residential addresses, and at nonresidential addresses if a signature release is on file.
- Unavailability of equipment or space therein.
- Compliance with delivery instructions from the Customer or consignee or non-compliance with special instructions from the Customer or consignee not authorized by Mercury's rules.
- Shortage of articles loaded and sealed in containers by the Customer provided the seal is unbroken at the time of delivery and the container retains its basic integrity.
- Failure of Mercury, or any carrier that Mercury selects, to pick-up, transport or deliver shipment by a stipulated date or time, unless any of those are guaranteed in writing by Mercury.
Mercurys liability shall in no event exceed that set forth in the limitations of liability provisions contained herein.
When Mercury arranges for carriage, storage or other services to be performed by third-parties in connection with a shipment, and loss, damage, expense or delay occurs during such activity, Mercury assumes no liability as a carrier, warehouseman or other service provider and is not to be held responsible for any loss, damage, expense or delay to the goods except as provided below. When Mercury carries, stores or otherwise physically handles a shipment, it does so subject to the limitation of liability set forth herein.
Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Mercury 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 Mercury that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that Mercury warrants or represents that such person or firm will render such services nor does Mercury 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 selected by Mercury to forward, enter and clear, transport or render other services with respect to such goods.
Mercury disclaims any duty to accept or to lodge any claim on behalf of the Customer with third-parties. All claims in connection with the acts or omissions of a third party shall be submitted directly to such party and/or its agents by the Customer. However, Mercury may, in its sole discretion, and at the request of the Customer, file a claim. In the event Mercury does file a claim at the Customers request, it is strictly understood it is done solely as an accommodation and Mercury does not undertake any duty or liability for the adjustment of the claim by the party with which the claim was filed or following up on such adjustment. In all events, the Customer shall be solely responsible for pursuing the claim directly with the third-party. Notwithstanding the foregoing Mercury shall reasonably cooperate with the Customer in connection with the Customers pursuit of the claim, who shall be liable for any charges or costs incurred by Mercury.
Due to the nature of the transportation business, Mercury cannot guarantee pick up, transportation or delivery by a stipulated date or a stipulated time, nor shall Mercury be liable for the consequences of failure to do so. Mercury specifically does not guarantee delivery by a stipulated date or a stipulated time of any item shipped via the United States Postal Service.
Liability for Charges and Indemnification
The customer, shipper, consignee owner and current possessor of goods shall be liable, jointly, and severally, for all unpaid charges payable on account of a shipment including, but not limited to, sums advanced or disbursed by Mercury on account of such shipment.
The customer, shipper, consignee owner and current possessor of goods shall be liable, jointly and severally, to pay or indemnify and hold us harmless for all liabilities, losses, costs, claims, fines, penalties, damages, costs or other sums which may be incurred, suffered or disbursed by us, together with reasonable expenses, including attorneys' fees, incurred by Mercury in connection with defending such claim or legal action and obtaining reimbursement from the Customer, arising out of or related to:
- Customer's or its agents' breach of, or failure to observe or perform any of, the warranties contained herein;
- The negligence of Customer or its agents or the violation of any applicable laws or regulations by Customer or its agents;
- Any and all duties, taxes, levies, fines, penalties and other outlays imposed by any authority in relation to the goods arising out of Mercury acting in accordance with Customer's instructions or in a manner customarily expected of a carrier under the circumstances.
In the event that any claim, suit or proceeding is brought against Mercury by a third party it shall give notice in writing to the Customer by mail, at Customers address on file with Mercury, tendering the defense of the claim, suit or proceeding to the Customer, and Customer agrees to accept such tender.
Liens on Shipments
Mercury shall have a lien on the shipment for all sums due and payable to us including past due charges, whether or not the goods for which the charges are due are in Mercurys possession or under its care, custody or control. In the event of non-payment of any sum payable to Mercury, the shipment may be held by Mercury subject to storage charges and/or disposed of at public or private sale for satisfaction from the proceeds of such sale all sums due and payable, including storage charges and costs of sale. Mercury shall provide written notice to Customer of its intent to exercise such lien, the amount of monies due and owed, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Mercurys rights and/or the exercise of such lien. The shipper and/or consignee shall continue to be liable for the balance of any unpaid charges payable on account of the shipment. All charges are payable to the corporate office of Mercury in US Dollars.
Costs of Collection
In any dispute involving monies owed to Mercury, Mercury shall be entitled to all costs of collection, including reasonable attorneys 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 Mercury.
Limitations of Liability
Air and Ground Shipments Mercurys liability for loss or damage claims for air and ground shipments shall be as follows:
- For air or ground shipments not having a declared value at the time of shipment, Mercurys liability for loss, damage, delay or mis-delivery to any air and/or ground shipment in the US, or to or from Canada or Mexico, except as provided below, is limited to, and shall be the lesser of either, $0.50 per pound multiplied by the number of pounds of each piece(s) of the shipment which may be the subject of a claim (but not less than $50.00 per shipment), the actual value of such piece(s), the repair cost or the replacement cost. If you declare a higher value and pay an additional charge (see Declared Value sub-section below), Mercurys liability will be the lesser of your declared value or the actual value of the shipment.
- For ground shipments not having a declared at the time of shipment, and shipping intra-provincial or inter-provincial in Canada and/or any interstate ground shipment to the U.S. or Mexico originating from Canada where the loss or damage occurs within Canada Mercurys liability is limited to $2.00 (CDN) per pound or $4.41 (CDN) per kilogram multiplied by the weight of each piece(s) of the shipment which may have been lost or damaged, or the actual value of such piece(s), whichever is less. If you declare a higher value and pay an additional charge (see Declared Value sub-section below), Mercurys liability will be the lesser of your declared value or the actual value of your shipment. Determination of our limit of liability on any shipment shall be based on the weight of the package or packages lost or damaged. To the extent it cannot be determined that the loss or damage occurred within Canada on an interstate shipment originating from Canada, then such loss or damage will be deemed to have occurred within the United States and be subject to the limits of liability set forth in Air and Ground Shipments section above.
International Air Shipments The international carriage of shipments by air will be deemed to be subject to the Montreal Convention of 1999 (Montreal Convention). For international air shipments not having a declared or insured value declared at time of shipment, Mercurys liability for loss or damage to international air shipments shall be limited in accordance with the provisions of the Montreal Convention as follows:
- Liability for loss, damage or delay of a shipment shall be limited to 19 Special Drawing Rights (SDRs) per kilogram, or the then current adjusted rate limit as may be periodically reassessed under the provisions of the Montreal Convention unless you declare a higher value for carriage and pay an additional charge for such excess liability. The value of 1 SDR is as determined by the International Monetary Fund at the date of judgment as converted into national currency in round figures under applicable law.
- In the case of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Mercurys limit of liability shall be only the weight of the package or packages concerned.
- In the case of loss of, damage or delay to a shipment, the weight to be used in determining Mercurys limit of liability shall be the weight that is used to determine the charge for carriage of such shipment.
- In the case of loss of, damage or delay to a part of a shipment, the shipment weight in section above shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package. In the event the Montreal Convention does not govern a loss, damage or delay claim, for any reason, all the foregoing shall nonetheless be the basis for adjustment of a claim as a matter of contract.
International Air Forwarding When acting as an international air forwarder, Mercurys liability for arranging with a carrier to transport a shipment and related services, is limited to the lesser of $.50 per pound or $50.00, whichever is less.
Declaring Higher Value to Third Parties Mercury and third parties to whom goods are entrusted may limit liability for loss or damage. In order to increase the potential for recovery of a higher or full value for loss or damage to a shipment the shipper must declare a higher value for carriage with the actual carrier transporting the shipment.
Declared value is not insurance and is not a guarantee that the full amount of the declared value is recoverable. Any demand for satisfaction of a claim based on a declaration of value must be documented to support the amount being claimed.
In the event the shipper makes a declaration of value for carriage it will be required to pay an additional freight charge to cover the increased liability assumed by Mercury or third parties. The election of accepting the applicable limitation of liability or paying an additional freight charge for increased liability is known as a choice of liability or choice of rates.
When not acting as the carrier of a shipment and issuing its own bill of lading, Mercury will make a declaration of value in an amount specified by the Shipper in writing with third parties that maintain limitations of liability, provided the shipper agrees to pay the supplemental freight charge in consideration of the acceptance of the declaration by the third party. In the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Mercurys discretion, the goods may be tendered to the third party, subject to the terms of the third partys limitations of liability and/or terms and conditions of service.
For shipments of extraordinary or high value, or for used general merchandise, with the exception of negotiable or non-negotiable instruments, for which Mercury acts as the carrier and issues its own air waybill or bill of lading, the maximum declared value Mercury will accept on any shipment is $50,000.00 per shipment. For shipments having a declared value on the SLI/Waybill/Label prior to acceptance by Mercury, the total liability of Mercury shall in no event exceed the declared value of the shipment/piece or the actual value, the repair cost or the replacement cost, of the shipment/piece, whichever is less, plus the amount of any transportation charges for which Customer may be liable.
A declared value of more than $50,000 is only available on shipments of extraordinary or high value goods, or for used general merchandise, with the exception of negotiable or non-negotiable instruments, and only when Customer receives prior written authorization from a senior Mercury manager or corporate officer (see Extraordinary or High Value Goods section below).
Notwithstanding the foregoing, where the shipper issues the bill of lading, the shipper must make such declaration on the face of the bill of lading and Mercury accepts no responsibility for tendering the shippers bill of lading to third parties for carriage with no declared value.
Declared Value Claims Any claims for loss/damage for a declared value for carriage greater than $5000 are subject to a deductible of $1000.
Insurance For domestic (United States and U.S. territories) air and ground shipments, Canadian ground shipments, and international air shipments the shipper may request that new goods be insured. Unless requested to do so in writing and confirmed to Customer in writing, Mercury is under no obligation to procure insurance on Customers behalf; in all cases, Customer shall pay all premiums, deductibles and costs in connection with procuring requested insurance. When requesting insurance, the shipper must:
- Confirm that the goods are new, in original manufacturerpackaging
- Make a request for insurance.
- Pay the appropriate premium.
- Record the amount of the insurance in the space designated on the Shippers Letter of Instruction or Mercury Waybill/Label.
If the foregoing conditions are met, the goods identified on our Waybill/Label will be insured under an open policy. When such insurance is in place our liability shall in no event exceed the insured value or the actual amount of loss or damage, whichever is lower, plus the amount of any freight charges relating to such shipment. An additional charge will apply for shipments having an insured value. The insurance is subject to the terms, conditions, deductibles, exclusions and coverage (for which certain risks are excluded) of the open policy, a copy of which is available upon request. The maximum insured value Mercury will agree to on any shipment is $50,000.00, unless you receive prior written authorization from a senior Mercury manager or corporate officer.
Used merchandise and non-containerized freight are only subject to recovery for an amount not exceeding their declared value or used market value, whichever is less.
The value of any used equipment will be based on sale price if sold or replacement value if not. Mercury will not be responsible for mechanical derangement unless resulting from a peril covered under Mercurys open policy.
Insurance is unavailable for goods that are excluded from coverage under the open insurance policy, including, but not necessarily limited to, the following, when the total declared value of the shipment exceeds $500.00 or when the declared value exceeds $0.50 per pound, per piece
- Household goods and/or personal effects
- One-of-a-kind articles or models
- Valuable rugs (i.e., oriental rugs, persian rugs)
- Prints or lithographs
Insurance is limited, restricted, subject to conditions, or subject to high deductibles with respect to certain shipments, including, but not necessarily limited to, the following:
- Automobiles and motorcycles
- Computer equipment
- Glass, glassware, mirrors and glass tubes
- Lasers and laser equipment
- Televisions and other electronic equipment
- Truck shipments to or from Mexico
- Used goods, machinery or equipment
- Jewelry (other than costume jewelry)
No employee or agent of Mercury has any authority to accept such articles for transportation or to waive the limitations contained herein.
Mercury's maximum liability for any ENVELOPE or LETTER is $25.00.
Extraordinary or High Value Goods Notwithstanding any other provisions herein, shipments of goods with a value of more than $50,000 will be considered extraordinary or high value goods and will not be accepted by Mercury unless you receive prior written authorization from a senior Mercury manager or corporate officer. In the event shipments of extraordinary value goods are accepted by Mercury, with or without prior authorization, or such shipments are inadvertently accepted by Mercury, Mercurys liability shall be limited in accordance with the above sections (as applicable), subject to a maximum liability for such shipments of $50,000 unless you receive prior written authorization from a senior Mercury manager or corporate officer to declare a higher value for carriage and pay an additional charge for excess liability.
Any declared value in excess of the maximum allowed hereunder for which Mercury has not issued prior written authorization is null and void and the acceptance by us for carriage of any shipment with a declared value in excess of the maximum allowed hereunder does not constitute a waiver of the maximum declared value provisions.
Insured Value Claims Any claims for loss/damage for an insured value greater than $5000 are subject to a $1000 deductible; in the case of computers and computer-related equipment, the deductible will be the greater of 10% of the total insured value of the shipment or $1000.
Customs Business For the service in arranging for customs brokerage services on behalf of the Customer, Mercurys liability shall be limited to $50.00 per entry. Mercury disclaims any responsibility for any acts or omissions of the customs broker in the performance of its services on behalf of the shipper.
Special Damages In no event and under no circumstances shall Mercury be liable for any special, exemplary, punitive, incidental or consequential damages, including but not limited to loss of profits or income or business opportunity, whether or not Mercury had notice or knowledge that such damages might be incurred.
Any exclusion or limitation of liability applicable to Mercury shall apply to and be for the benefit of Mercury's agents, servants and representatives and any person whose equipment is used by Mercury for carriage and its agents and representatives. For purposes of this provision, Mercury acts herein as agent for all such persons.
On arrival of the goods at the place of destination, subject to the acceptance of other instructions from the Customer prior to arrival, delivery will be tendered to the consignee. If the consignee declines to accept the tender of goods, or cannot be communicated with, disposition will be made in accordance with instructions of the Customer. Customer shall be liable for all costs in either returning the shipment or warehousing the shipment pending its disposition or both. When no delivery signature is required, Customer releases Mercury from all liability from any loss or damage claim for the shipment.
Notice and Disposition of Property
When shipments arrive at destination, we will promptly notify the consignee and/or his designated agent or broker if we are not delivering to the consignee.
If, at the expiration of the free storage time provided herein, a shipment containing nonperishable property is unclaimed or delivery cannot be effected, we will so notify the shipper and consignee, by telephone, email, facsimile or mail (at the addresses shown on the Waybill). In such event the cost of continued storage, if paid for or payable by Mercury or any agent of Mercury, shall be paid by Customer to Mercury upon demand. Upon written instructions from the shipper, we will arrange to return the shipment to the shipper, forward or re-consign it, or otherwise dispose of it, all at the shipper's expense.
If no such instructions are received within thirty (30) days after the date of notice is given, we will arrange disposal of the shipment at public or private sale.
Un-cleared Import Shipments held at government warehouses will be recovered only when all costs have been paid in advance.
Packing and Marking Requirements
Shipments must be prepared or packed to ensure safe transportation with ordinary care in handling and in accordance with the requirements of any carrier or other agent that Mercury selects for the shipment.
Any article susceptible to damage by ordinary handling must be adequately protected by proper packing and must be marked or bear appropriate labels.
Any article susceptible to damage as a result of any condition which may be encountered in transportation, such as high vibration or high or low temperature variations, high or low atmospheric pressure variations, must be adequately protected by proper packing and any other necessary measures.
Each piece must be legibly and durably marked with the name and address of the shipper and consignee. When a container is used repetitively, all old labels, tags markings, etc. must be removed.
Mercury assumes no duty to, but may, in its sole discretion, arrange for packaging of shipment if requested by customer in writing and at customers sole expense, including a service charge by Mercury for arranging for the packing service.
Any rates or charges for services set forth in a rate quote, rate sheet, contract or other document are subject to change without notice. Additionally, the shipments may be assessed accessorial charges and/or surcharges for additional services not covered in the Rate Quote and/or Rate Sheet. Under no circumstances will rates or charges be considered guaranteed for a particular period unless specifically agreed to in writing.
Quotations as to fees, rates of duty, transportation charges, insurance premiums or other charges given by Mercury to the Customer are for informational purposes; no quotation shall be binding upon Mercury unless Mercury in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between Mercury and the Customer.
All rates and fees are subject to change without notice.
Routing and Re-routing
Unless Customer gives express written instructions designating carrier(s) to be used, routing or re-routing or storage of a shipment, Mercury has complete freedom in choosing the means, route and procedure to be followed in handling, transportation and delivery. Mercury shall not be liable in any way for complying with the instructions issued by the client.
Except as specified elsewhere in these Terms and Conditions, shipments of general commodities will generally be considered acceptable for transportation only when the rules and provisions shown herein and all laws, ordinances, and other governmental rules and regulations governing the transportation thereof have been compiled with by the shipper and/or consignee.
Shipments not Acceptable for Transportation
Shipments of the following commodities or nature will not be accepted by Mercury for transportation unless authorized by a Mercury Corporate Officer
- Architectural Models
- Corpses, cremated orDisinterred remains
- Fresh Food Products
- Fur and Fur trimmed articles
- Hazardous Waste Materials
- Live animals
- Money, currency, bonds, Bills of Exchange, Deeds, Promissory Notes, Negotiable Securities and Stock Certificates
- Nursery stock and plants
- Original manuscripts or electronic media
- Wearing apparel designs of which no other copy exists
- Packages that are wet, leaking, or emit an odor of any kind
- Personal effects
- Postage, trading or revenue stamps, stamp collections and coin collections.
- Precious metal, including but not limited to, gold, silver or platinum in the form of bullion, jewelry or any other form.
- Used furniture or household goods uncrated or unwrapped (unless in relation to arranging packaging with a Mercury agent).
- Shipments as classified in 49 CFR Parts 171-177 Hazardous Material Regulations of the US, with the following hazard class or divisions:
- Explosives of class 1 with the following divisions: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, or known by class name prior to Jan. 1, 1991 as class A, B, C and blasting agents respectively. Division 1.6 had no applicable hazard class prior to Jan 1, 1991.
- Shipment of class 2 with the following division: 2.3 poison gas or ICAO/IATA toxic gas
- Shipments of class 4 with the following divisions: 4.1 flammable solid, 4.2 spontaneously combustible material and 4.3, dangerous when wet material
- Shipments of class 5 with the following divisions: 5.1, oxidizer and 5.2, organic peroxide
- Shipments of class 6 with the following divisions: 6.1 poisonous material or ICAO/IATA toxic substance and 6.2 infectious substance
- Shipments of class 7 (radioactive) material
- Shipments of an inherent nature or defect, which indicates to us that such transportation, could not be furnished by us without loss of or damage to the shipment.
- Shipments prohibited by U.S. Federal or State, or foreign countries governing laws, rules and regulations either at origin or destination.
- Shipments from unknown shippers for movement on passenger aircraft.
- Shipments which require that we obtain a federal, state or local license for their transportation if we have elected not to comply with such license requirements.
- Shipments containing alcohol, beer, wine, and/or tobacco.
- Shipments not expressly covered by these rules, or which would be likely to cause damage to other shipments, equipment, crew or passengers, the carriage of which is prohibited by law.
To the extent any of the foregoing shipments are accepted by Mercury, with or without prior authorization, or in the event any of the foregoing shipments are inadvertently accepted by Mercury, such shipments shall be deemed and considered extraordinary value items and our liability for loss or damage to such shipments shall be limited in accordance with the provisions governing extraordinary value items under Limitations of Liability provision above.
Shipments Subject to Advance Arrangements
The following will be accepted for carriage only upon advance arrangements and only when such advance arrangements have been satisfactorily completed.
- Any shipments having a declared or insured value exceeding $50,000.
- Shipments containing oversized pieces.
- Shipments requiring pickup or delivery of pieces which cannot be handled by one individual. Excessive weight or size shipments.
- Shipments requiring special devices for safe handling.
- Dangerous Goods as described in Dangerous Goods/Hazardous Materials provision.
Shipments Subject to Delay
The following conditions may delay delivery of the shipment to the consignee and Mercury shall have no liability for any damages asserted as a result of such delay:
- If the dimensions of the shipment are too large for available equipment.
- If the length of the shipment exceeds 108".
- Shipments that are improperly packaged or lack proper documentation.
- Shipments on which the shipper has omitted or provided an incorrect consignee address on the Waybill.
- Shipments requiring special licenses or consularization filing prior to export.
- Shipments difficult to handle, oversized or unwieldy, single pieces in excess of 150 pounds.
- Shipments containing Dangerous Goods/Hazardous Materials.
- Shipments not complying with US Department of Transportation, US Department of Homeland Security – Transportation Security Administration (TSA) regulations.
- Shipments subject to inspection, seizure or detention by any legally authorized authority.
- Shipments delayed because of national Holidays, weather-related conditions, natural disasters, or acts of God.
- Shipments delayed because of other conditions or circumstances beyond the reasonable control of Mercury.
Shipments Subject to Special Conditions
- Shipments requiring special devices for safe handling will be accepted only when such special devices are provided and operated by and at the expense of the shipper or consignee.
- Furs, Dangerous Goods, and items of extraordinary value must not be included in the same shipment with any other article.
Storage and Charges
At Customers expense, both Domestic and International shipments may be subject to carrier and/or government, storage, demurrage, and/or other charges, sometimes beyond an initial free grace period. Shipments held beyond a carriers or governments maximum storage period are subject to disposition per the carriers policy and/or government regulations.
The Waybill/Bill of Lading
- Except as otherwise provided or agreed to by Mercury, carriage and or storage arranged by Mercury shall be subject, as applicable, to these Terms and Conditions, and/or any tariffs, and/or contracts of carriage and/or service agreements between Mercury and Customer, and/or, as applicable, the tariffs, contracts of carriage, terms and conditions and or service agreements of the carriers, warehousemen and other service providers with which Mercury engages on behalf of the customer, as well as governing statutes and regulations. For all ground and air shipments where a bill of lading or air waybill is issued by the shipper it will serve solely as an acknowledgement of receipt of the freight. These non-authorized bills of lading or air waybills are not a contract of carriage and neither Mercury nor the nominated carrier will be subject to its terms and conditions. Continued use of unauthorized bills of lading by shipper will not, and does not, constitute an implied acceptance or ratification by Mercury or the nominated carrier of the unauthorized bill of lading or air waybill or their terms and conditions.
- The contents of all shipments must be indicated by accurate description on the Air Waybill or Bill of Lading.
- The number of pieces included in a shipment must be specified on the Air Waybill or Bill of Lading.
- The dimensions and weight of the shipment will be entered on the Air Waybill or Bill of Lading per shippers instructions. Shipments may be re-weighed at origin or destination.
- Any special handling, including, but not limited to, on or below deck carriage, collect or COD charges, special handling or temperature limitations, must be endorsed on the Air Waybill or Bill of lading.
- All the terms and conditions of contract or otherwise referred to above shall be binding, whether or not a waybill or bill of lading is issued, regardless of the mode of transport.
Applicable Law and Forum
To the extent not governed by International Treaty, Convention or United States Federal Law, all disputes, claims or actions arising hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of Massachusetts, without regard to its conflict of laws principles. All actions, suits or proceedings arising hereunder shall be brought in the United States District Court for the District of Massachusetts, located in the City of Boston, Massachusetts, or, in the absence of federal jurisdiction, the State courts of Massachusetts, located in the city of Boston, Massachusetts, and Customer consents to the jurisdiction and venue of such courts for all purposes, including the taking of depositions.
ADDITIONAL REQUIREMENTS FOR INTERNATIONAL SHIPMENTS
Letter of Instruction In addition to the Mercury Shippers Letter of Instruction, Mercury accepts the Mercuryship/MyShipNow domestic and international labels as the Shipper's Letter of Instruction and will prepare any required export documentation from the information shown thereon. For some shipments Mercury may act as an agent for the airline, in which case, the airline's tariff applies. If you do not complete all the documents required for carriage, you hereby instruct us, where permitted by law, to complete the documents for you, at our option and at your expense, and to attach them to the Waybill, but we are not obligated to do so. We assume no liability to you or any other person for any loss or expense due to your failure to comply with this provision. You further agree to hold us harmless from and against all claims, damages, liabilities, actions, losses, costs and expenses of any nature whatsoever arising out of your providing to us incomplete, inaccurate or false documentation or your failure to provide required information.
No Responsibility for Governmental Requirements It is the responsibility of the Customer to know and comply with the requirements of US CBP/TSA or foreign destinations, the regulations of Other Government Agencies, both US and foreign, and all other requirements, including regulations of Federal, state and/or local agencies pertaining to the merchandise or property. Mercury shall not be responsible for action taken or fines or penalties assessed by any governmental agency against the shipment because of the failure of the Customer to comply with the law or the requirements or regulations of any governmental agency.
Road Transport Notice Shipments transported partly or solely by road, be there an explicit agreement to do so or not, into or from a country that is a party to the Convention on the Contract for International Carriage of Goods by Road (the "CMR") are subject to the terms and conditions of the CMR, notwithstanding any other provisions referred to or in these Terms and Conditions to the contrary, except that the higher limitations of liability as set forth in these conditions shall remain applicable as opposed to those set forth in the CMR.
Power of Attorney Shipper authorizes Mercury to act as its air forwarding agent including compliance with all export control laws and regulations, except as otherwise provided in these Terms and Conditions, and excluding determining whether or not Customers goods require an export license and obtaining such license. In furtherance of the foregoing, Customer hereby certifies that all statements and information it provides, whether written or oral, and any accompanying commercial of other documents it prepares relating to the goods and their export shipment is true and accurate.
The Shipper or his Authorized Agent hereby authorizes Mercury, in Shippers name and on its behalf, as its Attorney-in-Fact to prepare any import/export documents, to sign and accept any documents relating to Shippers shipments and to engage third parties to transport and/or store Shippers shipments in accordance with the bills of lading, conditions of carriage and tariffs of the carriers employed.
Further, Shipper hereby appoints Mercury as its Attorney-in-Fact solely for the purpose of designating a customs broker to perform customs clearance (unless Shipper designates a customs broker). In furtherance of the foregoing, Shipper shall be responsible for executing a Power of Attorney, in form acceptable to U.S. Customs and Border Protection, authorizing the customs broker to engage in customs business on behalf of the shipper.
Notwithstanding anything else contained in this term or the Terms and Conditions, the sole responsibility of Mercury in arranging for the foregoing services is to use reasonable care in the selection of carriers, forwarders, customs brokers, agents and others to whom it may entrust Shippers shipments or provide import or export services.
Compliance with Law and Regulation It is Shippers responsibility to provide proper and accurate documentation in connection with all shipping, import or export transactions. Shipper acknowledges that it is required to review all documents and declarations prepared and/or filed and will immediately advise Mercury, or in the case of imports the customs broker, of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on its behalf. Mercury relies on the correctness of all documentation, whether in written or electronic format, and all information that shipper furnishes. Shipper agrees that it has an affirmative, non-delegable duty to disclose any and all information required to import, export or enter the goods and shall indemnify and hold Mercury harmless from any and all claims asserted and/or liability or losses suffered by reason of your failure to disclose information or any incorrect or false statement you make upon which Mercury reasonably relied.
Shipper is responsible for and warrants its compliance with all applicable laws, rules and regulations, including but not limited to customs laws; import, export and re-export laws; and governmental regulations of any country to, from, through, or over which your shipment may be carried. You agree to furnish such information and complete and attach any such documents necessary to comply with such laws, rules and regulations. We assume no liability to you or any other persons for any losses or expenses due to your failure to comply with this provision.
Shipper is also responsible for all charges; including transportation charges and all duties, customs assessments, governmental penalties and fines, taxes and our lawyers' fees and legal costs, related to this shipment.
No Duty to Maintain Records for Customer Customer acknowledges that pursuant to the Customs Regulations, Export Administration Regulations, the Transportation Security Administration Regulations and the Customs Regulations it is solely liable, to maintain all records required by the various regulations for specific periods of time; unless otherwise agreed to in writing, Mercury shall only keep such records that it is required to maintain by statute(s) and/or regulation(s), but not act as a recordkeeper or recordkeeping agent for Customer.
Loss or Damage Claims Procedure and Time Limits
Claims for loss, damage, or delay of a shipment for which Mercury acted as a domestic or international air forwarder or indirect air carrier must be filed in writing, within the time limits set forth herein, to Mercury Business Services, Inc., 61 Batterymarch St, Boston, MA 02110. In the event you fail to file a written claim within the time limits set forth herein, Mercury shall have no liability for such claim and no further action may be brought against Mercury.
Air Shipments (Domestic and International) Claims relating to domestic and international air shipments must be made:
- For damage or shortage, immediately after discovery of the damage or shortage, but in no event later than 14 days from the date of delivery.
- For delay of the shipment, within 21 days from the date of delivery.
- For non-delivery of the shipment, within 120 days from the date the shipment was accepted by Mercury.
Ground Shipments Except for shipments that are exempt pursuant to 49 USC Secs. 13531 and 13506(a)(8) and which shall be considered air shipments, claims relating to ground shipments, must be made within 9 months from the date of delivery of the shipment or, in the case of non-delivery, within 9 months after the date when the shipment should have been delivered or on the date when the carriage stopped.
Time Limits for Suits Relating to Loss or Damage Claims
Air Shipments (Domestic and International) Suit for loss, damage or delay against Mercury relating to an international or domestic air shipment shall be commenced no later than two (2) years from the date of delivery, or from the date on which the shipment ought to have been delivered, or from the date on which the carriage is stopped. Any rights to damages shall be extinguished unless suit is commenced within the time limits set forth herein.
Ground Shipments Suit for loss, damage or delay against Mercury relating to any ground shipment shall be commenced no later than two (2) years and one (1) day from the date when Mercury gives you written notice that the claim (or any part or parts of the claim) has been disallowed. Any rights to damages shall be extinguished unless suit is commenced within the time limits set forth herein.
All claims are subject to proof of value. After filing a claim or notice of intent, all documents required to support the claim must be in Mercury's possession within thirty (30) days from the date of Mercury's acknowledgment letter unless waived or extended by Mercury. Failure to submit all supporting documents within this time limitation will result in denial of the claim.
- Claims for overcharges, refunds or duplicate payments (collectively overcharge claims) must be made in writing within ninety (90) days from the date of delivery of the shipment that is the subject of the claim, otherwise such claims shall be deemed waived by you. All overcharge claims, along with any and all supporting documentation, shall be filed in writing to: Mercury Business Services, Inc. Accounts Receivable Manager, 61 Batterymarch St., Boston, MA 02110.
- Suits to recover overcharge claims must be filed within eighteen (18) months from the date of delivery the shipment that is the subject of the claim. Any rights to damages shall be extinguished unless suit is commenced within the time limits set forth herein.
No Right to Offset
YOU SHALL NOT HAVE ANY RIGHT TO OFFSET OR DEDUCT UNPAID TRANSPORTATION OR OTHER CHARGES DUE AND OWING TO MERCURY AGAINST UNPAID CLAIMS FOR LOSS OR DAMAGES, CLAIMS FOR OVERCHARGES, OR ANY OTHER CLAIMS ASSERTED AGAINST MERCURY. MERCURY IS NOT OBLIGATED TO ACT ON ANY CLAIM UNTIL ALL TRANSPORTATION CHARGES ARE PAID IN FULL.
No Obligation to Adjust Claim
NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MERCURY BE OBLIGED TO UNDERTAKE ADJUSTMENT OF ANY CLAIM UNTIL ALL OUTSTANDING CHARGES DUE AND OWING MERCURY IN CONNECTION WITH THE SHIPMENT(S) WHICH IS THE SUBJECT OF THE CLAIM, AS WELL AS ALL SUMS DUE AND OWING FOR ALL OTHER CURRENT AND PRIOR SERVICES RENDERED, HAVE BEEN FULLY SATISFIED. FURTHER MERCURY HAS NO OBLIGATION TO UNDERTAKE ADJUSTMENT OF ANY CLAIM UNLESS THE GOODS AND THE PACKING THEY WERE RECEIVED IN ARE HELD AT MERCURYS DISPOSAL FOR INSPECTION.
These terms and conditions shall be severable and if any part or term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof and the remainder hereof shall remain in full force and effect.