Flexport Customs Brokerage and General Terms & Conditions
By requesting or accepting goods or services from Flexport Inc., and/or its subsidiaries and affiliates (collectively, “Flexport”), the Customer agrees to the following terms and conditions of service (“Terms and Conditions”).
Flexport may from time to time change these Terms and Conditions. Any changes are effective immediately upon publication on our website at www.flexport.com/terms.
Flexport Customs Terms and Conditions of Service
Based on the model terms and conditions of service promulgated by the NATIONAL CUSTOMS BROKERS AND FORWARDERS ASSOCIATION OF AMERICA, INC.
These terms and conditions of service constitute a legally binding contract between the "Company" and the "Customer". In the event the Company renders services and issues a document containing Terms and Conditions governing such services, theTerms and Conditions set forth in such other document(s) shall govern those services.
Definitions. (a) "Company" shall mean Flexport Customs LLC, its subsidiaries, successors or assigns, related companies, including, without limitation, Flexport International LLC, other authorized agents and/or representatives. (b) "Customer" shall mean the person for which the Company is rendering service, as well as its agents, representatives, and/or transactional counterparties, including, but not limited to, suppliers, vendors, shippers, customers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper's agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives. (c) "CBP" shall mean U.S. Customs and Border Protection, "Customs" shall mean CBP or any other jurisdiction-specific customs authority, and "Government Agency" shall mean any government agency in any jurisdiction wherever located. (d) "Documentation" shall mean all information received directly or indirectly from or in connection with a Customer or its shipments or its goods, whether in paper or electronic form. (e) OceanTransportation Intermediaries" ("OTI") shall mean an "ocean freight forwarder" and a "non-vessel operating common carrier". (f) "Third parties" shall include, but not be limited to, the following: "carriers, truck men, cart men, lightermen, forwarders, OTIs,customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise".
Company as Agent; Power of Attorney. The Company acts as the "agent" of the Customer for the purpose of performing duties in connection with importer security filing services, the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings withGovernment Agencies; as to all other services, Company acts as an independent contractor. In the absence of a separate Power of Attorney to Company executed by Customer or Customer’s express written disclaimer or revocation of such power, Customer appoints Company and its authorized agents, officers and employees, as the true and lawful agent and attorney-in-fact of Company, as customs broker, forwarding agent or in any other related capacity, to make (either in writing, electronically, or by other authorized means), or perform any act, or sign, seal and deliver as the act of the Customer any document required by law, regulation or commercial practice in connection with the importation, transportation, or exportation of any merchandise shipped or consigned by or to Customer including but not limited to acting before any Government Agency; perform any act or condition which may be required by law, regulation, or commercial practice in connection with such merchandise; to effect payment of duties, fees and taxes on behalf of Customer in connection with the entry or withdrawal of imported merchandise or merchandise exported; to issue powers of attorney on behalf of Customer of this power of attorney to other customs brokers or freight forwarders to transact Customs and/or freight forwarding business on behalf of Customer; to receive, endorse and collect checks issued for duty, fee and tax refunds, including interest in Customer's name; and generally to transact customs business in any jurisdiction; giving to Company full power and authority to do anything whatever requisite and necessary to be done as fully as Customer could do if present and acting, hereby ratifying and confirming all that Company as said agent and attorney-in-fact shall lawfully do by virtue of this authorization.
Limitation of Actions. (a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within ninety (90) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer. (b) All suits against Company must be filed and properly served on Company as follows: (i) For claims arising out of ocean transportation, within one (1) year from the date of the loss; (ii) For those claims arising from air transportation, within two (2) years from the date of the loss; (iii) For claims arising out of the preparation and/or submission of an import entry(s),within seventy five (75) days from the date of liquidation of the entry(s); (iv) For claims arising out of the preparation and/or submission of an importer security filing, within one (1) year from the date of loss; (v) For any and all other claims of any other type, within two (2) years from the date of the loss.
No Liability for the Selection of Services of Third Parties, Routes and/or Data Sources. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment, or in the data sources used to track progress of the shipment or the goods; advice by the Company that a particular person or firm has been selected to render services with respect to the shipment or the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and 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 nor as a result of tracking the shipment or goods for Customer visibility purposes; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
Quotations Not Binding. Quotations as to fees, rates of duty, freight charges,insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company 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 the Company and the Customer.
Reliance on Information Furnished. (a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies,incorrect statements, or omissions on any declaration filed on Customer’s behalf; (b) In preparing and submitting importer security filings, Customs entries, export declarations, classifications, applications, documentation and/or export data to the United States and/or a third party, document management and tracking shipments or goods for Customer visibility purposes, the Company relies on the correctness and completeness of all documentation, whether in written or electronic format, and all information furnished by Customer and third party data sources; Customer shall use reasonable care to ensure the correctness and completeness of all such information it supplies directly or indirectly and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of any incorrect, incomplete or false statement upon which the Company or Company's service providers or partners reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to submit an importer security filing, import, export or enter the goods.
Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefor; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company's discretion, the goods may be tendered to the third party subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
Insurance. Unless requested to do so in writing in sufficient time prior to shipment from point of origin and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer's behalf. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy and instructs the Company to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by the Company. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies or underwriters. In all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and the Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to the Company by the Customer or that the shipment was insured under a policy in the name of the Company. If for any reason the goods are held in a warehouse, container freight station, third party logistics provider or elsewhere, the same will not be covered by insurance, unless the Company receives specific written instructions from the Customer and the Company confirms in writing. Unless specifically agreed in writing,the Company assumes no responsibility to effect insurance on any export or import shipment with respect to which Company is not providing services to Customer.
Disclaimers; Limitation of Liability. (a) Except as specifically set forth herein,Company makes no express or implied warranties in connection with its services; (b)Subject to (d) below, Customer agrees that in connection with any and all services performed by the Company, the Company shall only be liable for its negligent acts that are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and the Company shall in no event be liable for the acts of third parties; (c) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s); (d) In the absence of additional coverage under (c) above, theCompany's liability shall be limited to the following: (i) where the claim arises from importer security filing services or other activities that do not relate to “Customs business”, and except as set forth in paragraph 9(d)(ii), $50.00 per importer security filing, shipment, or transaction, or the amount of fees paid to the Company for the importer security filing, shipment, or transaction, whichever is less; (ii) where the claim arises from the Company’s warehousing, fulfillment, and/or consolidation services occurring in the Company’s facilities or premises, including owned or leased property, $0.50 per pound of goods lost or damaged; (iii) where the claim arises from activities relating to "Customs business", $50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less; or (iv) where the claim arises from activities relating to Flexport Visibility Services, and to the extent that Section 9(a) is, for any reason, determined to be unenforceable or inapplicable, the Company's liability shall be limited to either the lesser of the fees Customer paid to Company for such services and $1,000 per occurrence, with an absolute per annum cap of $10,000 (regardless of the number of occurrences) if the Customer was receiving such services on a paying subscription basis; or $100.00 maximum per annum, regardless of the number of occurrences, if the Customer was not receiving such services on a paying subscription basis; (e) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, including any and all loss or damages arising from delay of services. Customer acknowledges and understands that Customer as the importer of record, is solely responsible for any duties, taxes, fees, penalties, liquidated damages, interest or other charges that may be due upon the products because of their importation into or export from the U.S. or any other country. Customer acknowledges and understands that any HTS classifications provided by Company are opinions only and are not binding on Customer, Company, or any customs authority or regulatory body that may have jurisdiction over the products. Any classifications provided by Company are for general, educational and planning purposes only. The specific tariff classification to be applied to a specific entry of merchandise is to be determined by the licensed customs broker or other agent engaged to file the entry. In the event the broker or agent handling the entry expresses an opinion different from that provided by the Company, the opinion of the customs broker or agent should be followed, subject to post-entry verification.
Force Majeure. Without limiting any other specific terms and conditions, and expressly in addition to such terms and conditions, Flexport shall not be liable for failure to perform its obligations – including any resulting losses, damages, delays, wrongful or missed deliveries or non-performance, in whole or in part – under these Terms and Conditions if prevented from doing so because of (i) an act of God, including but not limited to strike, fire, flood, earthquake, storm, hurricane, power failure or other natural disaster; (ii) explosion, civil disturbance, acts of terrorism, epidemic, pandemic, disease, interference by civil or military authority, accident, incidents or deteriorations to means of transportation, labor disputes, labor shortages or slowdowns; (iii) acts by third parties including breaches of contract or omissions by Customer, Shipper, Consignee and/or such parties’ agents or representatives, or anyone else who may have an interest in the shipment; (iv) any defects, nature or inherent vice of the goods; (v) because the continuation of the services would be in violation of any governmental laws, rules, or regulations or would cause or create any material safety, health, or environmental concerns; or (vi) any other causes beyond the reasonable control of Flexport and not intentionally caused by Flexport (such occurrence to be referred to as “Force Majeure”). Customer acknowledges that it shall bear the risk of any damages or losses due to Force Majeure and the responsibility to insure against the same. If Flexport takes steps outside the ordinary course of business to protect customer’s goods due to Force Majeure, Customer shall pay all charges associated with Flexport’s efforts.
Advancing Money. All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer; the granting of credit to aCustomer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability arising from importer security filing services, the importation or exportation of Customer’s merchandise including classification services and/or any conduct of the Customer that violates any Federal, State and/or other laws or in breach of these Terms and Conditions, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney's fees that the Company may hereafter incur, suffer or be required to pay by reason of such claims, including any claims by any Third party for freight or other charges, duties, fines, penalties, liquidated damages or other money due arising from services provided to or on behalf of the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to the Company to pay all charges or other money due promptly on demand. In the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
C.O.D. or Cash Collect Shipments. Company shall use reasonable care regarding written instructions relating to "Cash/Collect" or "Deliver (C.O.D.)" shipments, bank drafts, cashiers’ and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall have no liability if the bank or consignee or other recipient refuses to pay for the shipment. All payment documents tendered in payment of C.O.D.s will be accepted based solely upon the Customer’s assuming all risk relating thereto including, but not limited to,risk of non-payment, insufficient funds and forgery, and the Company shall not be liable upon any such instrument. The Company will not be responsible for any delay in remittance lost in exchange or during transmission or while in the course of collection.
Costs of Collection. In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney's fees and the lesser of (i) a late payment fee of 1.5% per month of the outstanding balance due or (ii) the highest rate permitted by applicable law.
General Lien and Right to Sell Customer's Property. (a) Company shall have a general and continuing lien on any and all property of Customer coming into Company's actual or constructive possession or control for monies owed toCompany relating to the shipment on which the lien is claimed and/or any prior shipments; (b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges. Customer shall notify all parties having an interest in its shipment(s) of Company's rights and/or the exercise of such lien. (c) Unless,within thirty 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% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
No Duty to Maintain Records For Customer. Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and§1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a "record keeper" or "record keeping agent" for Customer.
Obtaining Binding Rulings, Filing Protests, etc. Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post- importer security filing services or Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
Preparation and Issuance of Bills of Lading and Sea Waybills. Where Company prepares and/or issues a bill of lading or sea waybill, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same; Company shall use the weight supplied by Customer. Customer's instruction to ship via sea waybill shall be noted by Company's notation of "Sea Waybill" on the reverse side of the bill of lading or with words to the same effect on a similar document.
No Offsets; Notice of Dispute. Customer shall pay all freight and accessorial charges in full, without any reduction based upon an alleged offset, counterclaim or other deduction. Full payment of freight and accessorial charges shall be a condition precedent to Customer's right to assert an offset, counterclaim or other deduction. Customer must contest/dispute any freight or accessorial charges in writing by email for Flexport’s review within 30 days of its receipt of an invoice that includes the contested charges.
Reports and Analytics. Reports and analytics provided to Customer are prepared by Flexport, Inc. pursuant to the Flexport Software Terms and Conditions published at https://www.flexport.com/terms. Reports and analytics may be based on Customer data including, but not limited to commercial invoices.
No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by bothCustomer and Company; any attempt to unilaterally modify, alter or amend the same shall be null and void.
Compensation of Company. The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and other in connection with the shipment. On ocean exports, and upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for the monies due the Company, upon recovery by the Company, the Customer shall pay theexpenses of collection and/or litigation, including reasonable attorneys’ fees.
Severability. In the event any Paragraph and/or portion of these Terms and Conditions is found to be invalid and/or unenforceable, then in such event theremainder thereof shall remain in full force and effect.
Governing Law; Consent to Jurisdiction and Venue. These terms and conditionsof service and the relationship of the parties shall be construed according to the lawsof the State of California, without giving consideration to conflict of law principles.Customer and Company (a) irrevocably consent to the jurisdiction of the UnitedStates District Court and the State courts of California; (b) agree that any actionrelating to the services performed by Company, shall only be brought in said courts;(c) consent to the exercise of in personam jurisdiction by said courts over it, and (d)further agree that any action to enforce a judgment may be instituted in any jurisdiction.