TERMS AND CONDITIONS OF CARRIAGE
(“Terms and Conditions”)
When ordering NEX’s services you, as “Shipper”, are agreeing, on your behalf and on behalf of anyone else with an interest in the Shipment that the Terms and Conditions shall apply from the time that NEX accepts the Shipment unless otherwise agreed in writing by an authorized officer of NEX. Your statutory rights and entitlements under any defined service feature (for which additional payment has been made) are not affected.
“Shipment” means all documents or parcels that travel under one waybill and may be carried by any means NEX chooses, including air, road or any other carrier. A “waybill” shall include any label produced by NEX’s automated systems, air waybill, or consignment note and shall incorporate these Terms and Conditions. Every Shipment is transported on a limited liability basis as provided herein. If Shipper requires greater protection, then Shipment Value Protection may be arranged at an additional cost. (Please see below for further information). “NEX” means any member of the NEX Express Network or its Agents.
1. Customs, Exports and Imports (For International Shipments)
NEX may perform any of the following activities on Shipper’s behalf in order to provide its services to Shipper: (1) complete and transmit (manually or electronically) any documents, amend product or service codes, and pay any duties or taxes required under applicable laws and regulations, (2) act as Shipper’s forwarding agent for customs and export control purposes and as Receiver solely for the purpose of designating a customs broker to perform customs clearance and entry and (3) redirect the Shipment to Receiver’s import broker or other address upon request by any person who NEX believes in its reasonable opinion to be authorized.
2. Unacceptable Shipments
Shipper agrees that its Shipment is acceptable for transportation and is deemed unacceptable if:
· It is classified as hazardous material, dangerous goods, prohibited or restricted articles by IATA (International Air Transport Association), ICAO (International Civil Aviation Organization), any applicable government department or other relevant organization;
· No customs declaration is made when required by applicable customs regulations; or
· NEX decides it cannot transport an item safely or legally (such items include but are not limited to: animals, bullion, currency, bearer form negotiable instruments, precious metals and stones, firearms, parts thereof and ammunition, human remains, pornography and illegal narcotics/drugs).
3. Deliveries & Undeliverable
Shipments cannot be delivered to PO boxes or postal codes in U.S. Shipments are delivered to the Receiver’s address given by Shipper (which in the case of mail services shall be deemed to be the first receiving postal service) but not necessarily to the named Receiver personally. Shipments to addresses with a central receiving area will be delivered to that area. If Receiver refuses delivery or to pay for delivery, or the Shipment is deemed to be unacceptable, or it has been undervalued for customs purposes, or Receiver cannot be reasonably identified or located, NEX shall use reasonable efforts to return the Shipment to Shipper at Shipper’s cost, failing which the Shipment may be released, disposed of or sold by NEX without incurring any liability whatsoever to Shipper or anyone else, with the proceeds applied against service charges and related administrative costs and the balance of the proceeds of a sale to be returned to Shipper.
NEX has the right to open and inspect a Shipment without prior notice to Shipper.
5. Shipment Charges & Billing
NEX’s Shipment charges may be based on the higher of customer designated weight, the actual or volumetric weight, or a default weight where appropriate. Any Shipment may be re-weighed and re-measured by NEX to confirm this calculation. If the Shipper does not record a weight on the waybill at the time of shipment tender and the shipment is not re-weighed or re-measured, then a default weight will be applied to the shipment. If the shipper fails to indicate both the shipment weight and package type as required on the waybill, then NEX may, at its discretion, apply a default weight. Shipper shall pay or reimburse NEX for all Shipment charges, storage charges, duties and taxes owed for services provided by NEX or incurred by NEX on Shipper’s or Receiver’s or any third party’s behalf and all claims, damages, fines and expenses incurred if the Shipment is deemed unacceptable for transport as described in Section 2. Claims for overcharges, credits and invoice charges must be made in writing to NEX within one (1) year after the date of acceptance of the shipment by NEX. Overcharge and/or credit claim may not be deducted from transportation charges.
Shipping Charge Corrections, NEX may collect shipping correction charges from the payment method used while preparing the shipping label, without prior approval. Learn how to Avoid Shipping Charge Corrections.
6. NEX’s Liability
NEX’s liability is strictly limited to direct loss only and to the per kg. /lb. limits in this Section 6. If Shipper regards these limits as insufficient it must make a special declaration of value and request Shipment Value Protection as described in section 8 (Shipment Value Protection) or make its own insurance arrangements. All other types of loss or damage are excluded (including but not limited to lost profits, income, interest, future business), whether such loss or damage is special or indirect, and even if the risk of such loss or damage was brought to NEX’s attention before or after acceptance of the Shipment since special risks can be insured by Shipper. If a Shipment combines carriage by air, road or other mode of transport, it shall be presumed that any loss or damage occurred during the air period of such carriage unless proven otherwise. NEX’s liability in respect of any one Shipment transported, without prejudice to Sections 7-11, is limited to its actual cash value and shall not exceed the greater of; $US 100; or For certain international Shipments in which the Warsaw Convention applies, approximately $US 20.00/kg. or $US 9.07/lb., depending on the applicable law; or $US 10.00/kg. or $US 4.54/lb. for Shipments transported by road.
Claims are limited to one claim per Shipment, settlement of which will be full and final settlement for all loss or damage in connection therewith. All claims for international shipments must be submitted in writing to NEX within thirty (30) days from the date that NEX accepted the Shipment, failing which NEX shall have no liability whatsoever. All claims for domestic U.S. shipments must be submitted in writing to NEX within ninety (90) days from the date that NEX accepted the Shipment, failing which NEX shall have no liability whatsoever. All of the original shipping cartons, packing and contents must be made available for NEX’s inspection and retained until the claim is concluded. NEX is not obligated to act on any claim until all transportation charges have been paid.
8. Service Guarantee ‘Money Back Guarantee’
NEX will, upon customer's request and subject to the restrictions described below, provide either a refund or credit of customer's transportation charges, at NEX's option, for a U.S. origin, international outbound Shipment or U.S. domestic package that is delivered later than published delivery time.
This guarantee is subject to the following limitations:
- The guarantee applies only to transportation charges paid by U.S.-based payers and excludes all other items such as, duties, taxes, fuel surcharge, accessorial fees or other charges or amounts.
- In the case of multiple package shipments, this guarantee will apply to every package in the shipment. If a late delivery occurs for any package within the shipment, the refund or credit will be given for the portion of the transportation charges applicable to that package.
- Domestic and International Services
- For shipments transported using Domestic Express Services:
The guarantee applies only to shipments where: (i) each package weighs 150 pounds or less (actual or dimensional weight, whichever is greater); and (ii) no package is more than 56 inches by 36 inches by 25 inches or is longer than 56 inches regardless of other dimensions.
- For shipments transported using Ground Services:
The guarantee applies only to shipments where: (i) each package weighs 150 pounds or less; and (ii) no package is more than 108” in length; and (iii) no package is more that 165” in length plus girth.
- For shipments transported using International Services:
The guarantee applies only to shipments where: (i) each package weighs 150 pounds or less; and (ii) no package is more than 118 inches in size (measured by adding length, width and depth) with no side greater than 47 inches.
- Should customer or its recipient specify a customs broker other than NEX, delivery by NEX shall be deemed to have occurred at the time NEX notifies the customs broker that the shipment is available for customs clearance.
- Customer must notify NEX of a late delivery, in writing or by telephone, within 15 calendar days of the shipment date and provide NEX with the account number (if any), the waybill number, the date of the shipment and complete recipient information. Within 30 calendar days after customer so notifies NEX, NEX shall either: (i) provide customer with the refund or credit; (ii) provide customer with evidence of timely delivery; or (iii) provide customer with information explaining the reason that the shipment is not eligible for the guarantee under the applicable limitations or exclusions.
- NEX is not obligated to act on any claim until all transportation charges have been paid.
- This guarantee does not apply to:
- International inbound shipments or multi-lot shipments over 15 packages.
- Transportation charges resulting from returned packages.
- Space-available moves.
- Packages which are undeliverable for any reason, including improper or incomplete delivery instructions or information (which may include Post Office Box for recipient address, missing or incomplete recipient address, missing or inaccurate recipient telephone number), or unavailability or refusal of the recipient to accept delivery.
- C.O.D. Shipments.
- Late delivery due to causes beyond Carriers’ control including, without limitation, delays caused by acts of God, public authorities acting with actual or apparent authority of law, acts, requirements or omissions of postal, customs or other government officials, riots, strikes or other labor disputes, civil commotion and disruption in air or ground transportation caused by weather or other conditions.
- Shipments exceeding US $50,000 in value, or which are subject to lengthened transit times due to country-specific value limitations.
- No Consequential Damages
- NEX shall not be liable, in any event, for any consequential or special damages or other indirect loss regardless of the cause of such damages and whether or not NEX had knowledge that such damage might be incurred, including but not limited to loss of income, profits, interests, utility or loss of market.
- If a shipper has an extremely time-sensitive package, the loss or delay of, which may result in consequential damages, the shipper must contact his own insurance agent or broker to insure against such risks, as NEX does not assume such liabilities. NEX does not provide and will not arrange for such insurance.
- All provisions of NEX’s Terms and Conditions of Carriage apply.
- This money-back guarantee is subject to modification or cancellation by NEX at any time and without notice.
9. Shipment Value Protection ‘Insurance’
If the Shipment has an actual value greater than the liability limits listed in Section 6, NEX can arrange shipment value protection for Shipper covering the actual cash value in respect of loss of or physical damage to the Shipment provided Shipper completes the Declared Value for Carriage section on the front of the waybill or requests it via NEX’s automated systems and pays the applicable premium. Shipment Value Protection does not cover indirect loss or damage, or loss or damage caused by delays. If Shipper does not declare a value for carriage and pay the appropriate charge, Shipper assumes all risks of loss or damage over the amount of NEX’s liability as stated in Section 6.
SHIPMENT VALUE PROTECTION DOES NOT COVER THE FOLLOWING:
· Accounts, bills, bullion, currency, deeds, evidence of debt, furs, original/fine art, computer chips, loose precious/semi-precious stones, jewelry, money, notes, securities, perishable cargo, televisions, tickets, laptop computers, cellular phones, personal goods, live animals or similar property.
· Merchandise shipped on consignment, memorandum, or approval unless shipped in fulfillment of an order or request.
· Loss, damage, or non-arrival of any parcel which; (a) is addressed, wrapped or packed insufficiently, incorrectly or contrary to the carrier's packaging requirements; or (b) bears a descriptive label or packaging which tends to describe the nature of its contents.
· Any parcel containing personal goods to accommodate an employer and/or employee.
· Against loss or damage caused by or resulting from: (a) hostile or warlike action in time of peace or war, including action hindering combating, or defending against an actual impending or expected attack; (1) by any government or sovereign power (de jure facto), or by any authority maintaining or using military, naval, or air forces; or (2) by military, naval, or air forces; (3) by an agent of any such government power, authority, or forces; (b) any weapon of war employing atomic fission or radioactive force whether in time of peace or war; (c) insurrection, rebellion, revolution, civil war, usurped power, or action taken by governmental authority in hindering, combating or defending against such an occurrence, seizure or destruction under quarantine or Customs regulations, confiscation by order of any government or public authority or risks of contraband or illegal transportation of trade.
· NUCLEAR EXCLUSION. Notwithstanding anything herein contained to the contrary, it is hereby understood and agreed that this policy shall not apply to any loss, damage, or expense due to or arising out of, whether directly or indirectly, nuclear reaction, radiation, or radioactive contamination regardless of how it was caused. However, subject to all provisions of this policy, the direct physical damage to the property insured, located within the United States or any territory of the United States or Puerto Rico by fire directly caused by the above excluded perils, is insured, provided that the nuclear reaction, radiation, or radioactive contamination was not caused, whether directly or indirectly, by any of the perils excluded by this policy. Nothing in the above wording shall be construed to cover any loss, damage, liability, or expense caused by nuclear reaction, radiation, or radioactive contamination arising directly or indirectly from the aforementioned above.
· Arising out of infidelity, dishonesty, or any overt act on the part of the Insured, associate in interest, and/or any of the Insured’s employees whether occurring during hours of employment or otherwise, nor on the part of custodians (common carriers excepted), or the property insured unless specifically endorsed hereon in writing.
· Arising out of loss of market, latent defect, inherent vice, delay, loss of use, clean up costs, decay, changes in temperature or humidity, or other deterioration, any remote or consequential loss, whether or not arising out of a peril insured against.
· Arising out of loss from delivering the product to someone who obtains it by trick, false pretense, or other fraudulent schemes.
10. Delayed Shipments
NEX will make every reasonable effort to deliver the Shipment according to NEX’s regular delivery schedules, but these are not guaranteed and do not form part of the contract. NEX is not liable for any damages or loss caused by delays.
11. Circumstances Beyond NEX’s Control
NEX is not liable for any loss or damage arising out of circumstances beyond NEX’s control. These include but are not limited to: “Act of God” - e.g. earthquake, cyclone, storm, flood, fog; “Force Majeure” - e.g. war, plane crash or embargo; any defect or characteristic related to the nature of the Shipment, even if known to NEX; riot or civil commotion; any act or omission by a person not employed or contracted by NEX, e.g. Shipper, Receiver, third party, Customs or other government official; labor strike; and electrical or magnetic damage to, or erasure of, electronic or photographic images, data or recordings.
12. Warsaw Convention
If the Shipment is transported by air and involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention, if applicable, governs and in most cases limits NEX’s liability for loss or damage.
13. Shipper’s Warranties and Indemnity
Shipper shall indemnify and hold NEX harmless for any loss or damage arising out of Shipper’s failure to comply with any applicable laws or regulations and for Shipper’s breach of the following warranties and representations:
· all information provided by Shipper or its representatives is complete and accurate;
· Shipper protected the Shipment against unauthorized interference during preparation, storage and transportation to NEX;
· the Shipment is properly marked and addressed and packed to ensure safe transportation with ordinary care in handling;
· all applicable Customs, import, export and other laws and regulations have been complied with; and
· The waybill has been signed by Shipper’s authorized representative and the Terms and Conditions constitute binding and enforceable obligations of Shipper.
Shipper agrees to all routing and diversion, including the possibility that the Shipment may be carried via intermediate stopping places which NEX deems appropriate.
15. Governing Law
Any dispute arising under or in any way connected with these Terms and Conditions shall be subject to the laws of New York State shall apply and the U.S. District Court for the Eastern District of New York shall have exclusive jurisdiction.
The invalidity or unenforceability of any provision shall not affect any other part of these Terms and Conditions.