1. DEFINITIONS: In these Terms and Conditions of Service, “PPS” means Polonez Parcel Service, LLC. “Cartage” means the portion of surface carriage occurring before or after the transport of a Shipment aboard an aircraft. “Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Warsaw on October 12, 1929, as amended. by the Hague Protocol in 1955, the Montreal Protocol 1, 2 or 4 or the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal in 1999, whichever may be applicable to the international carriage of a Shipment. “Merchant” means the shipper, a party from whom the Shipment is received, the party who requested the Shipment be transported by PPS, the party receiving delivery of the Shipment, any party having an interest in the Shipment, and any party acting as an agent for any of the foregoing. “Shipment” means all pieces which are tendered to and are accepted by PPS for transportation, whether as agent of Merchant or on a single air waybill or bill of lading between origin and destination points specified by Merchant.
2. AGREEMENT TO TERMS:
a. In tendering a Shipment for carriage, Merchant agrees that these Terms and Conditions of Service constitute a binding contract, and further agrees that no agent, servant or employee of the parties may alter, modify or waive them except as set forth herein. Merchant understands and agrees that carriage may be subject to the Convention or other compulsory law. In the event any Shipment is tendered to PPS on a straight bill of lading or any other shipping document, Merchant agrees that these Terms and Conditions of Service supersede any rules, regulations or contractual terms contained on the shipping document(s) upon which the Shipment was tendered. PPS, in the event it issues a waybill or bill of lading, such waybill or bill of lading shall be a non-negotiable document and all PPS’s services are rendered per these Terms and Conditions of Service only, as they may be amended from time to time at PPS’s discretion, unless superseded by the Convention or other compulsory law. These Terms and Conditions are maintained and published at www.polonezparcelservice.com and are otherwise available on request.
b. Any exclusion or limitation of liability or other provision benefiting PPS shall apply to and be for the benefit of PPS’s agents, servants, subcontractors and representatives and any person providing services covered by this contract of carriage. Any such limitation of liability shall be a single, aggregate limitation, and satisfaction of such limitation by any one or more of the foregoing shall act as a satisfaction of such limitation by all of them. It shall also result in a full assignment and release of claims by each Merchant. Without prejudice to the foregoing, no benefits hereunder extend to any such persons with respect to any claim brought against them by PPS. Shipper warrants that no claim shall be made against any servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract of carriage without the prior written consent of PPS.
c. PPS may utilize different modes of transportation to assist Merchant. Depending on the mode of service, PPS operates: i) as a domestic and international air freight forwarder, providing services as a Transportation Security Administration (TSA) licensed Indirect Air Carrier; ii) as a Federal Motor Carrier Safety Administration (FMCSA) licensed Property Broker (MC191643). PPS is also licensed by the Federal Maritime Commission to provide ocean transportation services. Ocean transportation services are not covered by these Terms and Conditions of Service, but are instead subject to PPS’s filed ocean services tariff.
d. PPS may act as a principal or as the agent of the Merchant. PPS acts as an agent except where: (1) it issues a transport document such as an air waybill or bill of lading evidencing its obligation to deliver goods; or (2) PPS’s direct employees are physically handling a Shipment. When acting as an agent, PPS acts solely on behalf of the Merchant in engaging the services of third parties on the usual terms and conditions on which the third parties offer services for the carriage, storage, packing, consolidation or handling of any goods, or for any other service in relation to them, thereby establishing a direct contract between the Merchant and the provider capable of being enforced by the Merchant as principal, whether or not the Merchant is identified in such contract. The Merchant acknowledges that it shall be bound by the terms and conditions of the transportation agreements of the third parties into whose custody a Shipment may be entrusted.
3. MERCHANT’S OBLIGATIONS:
a. The Merchant shall comply with all applicable laws, rules and regulations of any government or government agency applicable to the Shipment including those relating to: (i) the packing, carriage, sealing, identification or delivery of the goods or, (ii) any aviation or other general freight transport security requirements which must or ought to be complied with by the Shipper.
b. The Merchant shall furnish complete and accurate information and provide to PPS such documents as may be necessary to comply with such laws, rules and regulations and enable PPS to fully complete the contract of carriage. PPS is not liable to the Merchant or any other person for loss or expense due to the Shipper’s failure to comply with this provision.
c. The Merchant warrants that: (i) it is either the owner of the goods or the authorized agent of the owner of the goods and further warrants that it is authorized to accept and is accepting these Terms and Conditions of Service not only for himself but also as agent for and on behalf of the owner of the goods and all other persons who are or may hereafter become interested in the goods; (ii) the description and particulars of any goods furnished by or on behalf of the Merchant are complete, timely and accurate, and do not contain any irregularities; (iii) all goods are in good order and condition, have been properly and sufficiently prepared, packed, stowed, labeled, sealed, identified and/or marked to ensure safe transportation with ordinary care handling, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and characteristics of the goods; (iv) the goods do not comprise or contain any explosive, incendiary or other device, substance or weapon which may endanger life or the safety of any airplane, vehicle or other transport conveyance to be used in connection with the carriage of the goods or which may cause or may be likely to cause loss, damage, injury to or death of any person or property; and (v) the goods do not comprise or contain any dangerous or hazardous materials within the meaning of the Hazardous Material Regulations of the U.S. Department of Transportation, the IATA Dangerous Goods Regulations, Perishable Cargo Regulations, or Temperature Control Regulations each as revised from time to time (collectively the “Dangerous Goods Regulations”) and the Merchant will not tender such goods to PPS.
d. Any Shipment in which delivery is made in exchange for a clear delivery receipt shall be prima facie evidence of having received ordinary care in handling. Notations on delivery documents such as “subject to inspection” and/or “subject to recount,” or similar, are not valid exceptions.
4. RATES; RE-WEIGH/RE-MEASUREMENT: Rates and charges for a Shipment will be based on actual or dimensional weight, whichever is greater. Dimensional weight criteria may differ depending on how a Shipment is transported. Merchant shall provide weight and measurements for Shipments; however, Shipments are subject to re-weigh and re-measurement by PPS and/or carriers engaged to transport a Shipment. If the weights or measurements of the Shipment as delivered are different from Merchant’s representations, or if pick-up or delivery time or location is changed by Merchant, PPS’s rates, charges and fees are subject to change at PPS’s discretion.
5. LIMITATION ON LIABILITY: PPS shall be liable for any cargo loss, damage or delay for any services only to the extent caused by its negligence or willful misconduct, and, unless subject to any compulsory law or regulation, then subject to the following limits:
a. AIR AND COMBINED AIR/GROUND SERVICE: For all U.S. domestic Shipments, including Shipments to or from Puerto Rico and/or U.S. Territories, where PPS issues an air waybill, PPS’s liability for any loss or damage to a Shipment is limited to the lesser of: 1) Merchant’s actual damages; or 2) fifty U.S. dollars ($50.00) per Shipment; or 3) fifty U.S. cents ($0.50) per pound per piece affected, but shall not exceed the Shipment’s repair cost, depreciated value or replacement cost. PPS’s liability will in no event exceed the actual invoice value of the specific goods adversely affected. Merchant may increase PPS’s liability for damage by declaring an “excess” value on a Shipment as set forth herein.
b. ALL-GROUND U.S. DOMESTIC SERVICE: In arranging domestic surface transportation, PPS acts pursuant to its Property Broker authority, and as Merchant’s agent only, PPS will use reasonable care in the selection of properly federally-authorized (licensed and insured) motor carriers on Merchant’s behalf. In such instance, Merchant agrees to accept and be bound by the authorized carrier’s terms and conditions and/or applicable tariffs and PPS will have no liability for cargo loss, damage or shortage except to the extent such claims are caused by PPS’s negligent act or omissions, in which case PPS’s liability will be no greater than the amount paid by Merchant for the Shipment at issue.
c. INTERNATIONAL AIR SERVICE: Where PPS issues an air waybill for an international air Shipment, all of the following terms shall govern: 1) all rules relating to liability as established by the Convention shall apply; 2) except as otherwise provided herein, and as to carriage to which the Convention does not apply, PPS’s liability shall not exceed that set forth in part (a), above, to the extent not repugnant to compulsory law; and 3) Merchant accepts PPS’s air waybill as Merchant’s letter of instruction with authorization to prepare and sign on Merchant’s behalf international shipping documents. PPS reserves the right to act solely as agent of the air carrier, instead of as a forwarder/principal, in which event Merchant agrees to be bound by the nominated air carrier’s tariff and/or terms and conditions applicable to such Shipment. If PPS arranges Cartage services incidental to an international air shipment, unless governed by any compulsory law, PPS’s liability for cargo loss, damage or delay proven to have occurred during such Cartage shall be as set forth in subparagraph (a), above. Declared values will be subject to an excess value charge as set forth herein.
d. ALL-GROUND INTERNATIONAL SERVICE: For services between non-U.S. points, or between the U.S. and Canada or Mexico, where PPS has issued a bill of lading, and unless superseded by compulsory law, PPS’s liability shall be as set forth in Section (a), above.
e. OTHER SERVICES: PPS’s liability for any services not otherwise defined in these Terms and Conditions of Service, including, but not limited to, where PPS is acting as agent of Merchant and has not issued an air waybill, shall be a maximum of one hundred dollars $100.00.
6. DECLARING HIGHER EXCESS VALUE: Where PPS issues an air waybill, PPS’s customary and standard rates for carriage are “release rates” subject to the limitations of liability set forth in Section 5. If you do not declare excess value on a Shipment, you are agreeing to those limits of liability. Merchant may opt to increase PPS’s liability (but subject to Section 5) by declaring in writing at least 24 hours in advance of tender an excess value on the air waybill or bill of lading, up to a maximum of $10,000.00 without pre-approval by PPS. The charge for declared value coverage is $2.75 per $100.00 in value. Please contact PPS for further information or if you have any questions about how liability is allocated in our business. You may declare a value in excess of $10,000.00 ONLY when pre-approved in writing by PPS.
7. LIABILITIES NOT ASSUMED: PPS shall not be liable for any loss, damage, non-delivery or delay caused by the act, default or omission of Merchant or the consignee, the nature of the Shipment or any defect, characteristic, or inherent vice thereof, any act of God, perils of the air, public enemies, public authorities acting with actual or apparent authority of law, acts or omissions of Customs or quarantine officials, riots, strikes, civil commotions, hazards incident to a state of war, terrorism, weather conditions, delay of aircraft or other vehicles used in providing transportation services or acts or omissions of any carrier or any other entity or person to whom a Shipment is tendered by PPS (where PPS shall be deemed as acting as Merchant’s agent) for transportation beyond that provided for and agreed to by PPS in the PPS air waybill, regardless of whether Merchant requested or had knowledge of such third party delivery arrangement. PPS SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, INCOME, INTEREST, UTILITY, OR LOSS OF MARKET, WHETHER OR NOT PPS HAD KNOWLEDGE THAT SUCH DAMAGE MIGHT BE INCURRED.
8. CLAIMS PROCEDURES: All claims against PPS must be timely made in writing, sufficiently describing the factual details of the claim and including a bona fide replacement cost estimate. No claim will be processed by PPS until all transportation charges have been paid in full. In the event of a claim the Shipment, its container(s) and its packing material must be made available to PPS for reasonable inspection at the delivery location. Under no circumstances will PPS be liable for loss and/or damage to external shipping containers of any kind. Written notice as required herein must be sent to: Polonez Parcel Service, LLC, 143 Doty Circle, West Springfield, MA 01089.
a. Time for Filing: written notice of claim must be received by PPS within: (i) 14 days from the date of delivery; (ii) 21 days from the original expected date of delivery in the case of delay; and (iii) 120 days in the case of non-delivery of the Shipment, calculated from the date the Shipment was accepted by PPS.
b. Exception for Concealed Damage Claims: “Concealed damage” means damage and/or loss discovered by the consignee after delivery when no notification of loss or damage has been made on the delivery receipt by the consignee upon actual receipt of the Shipment. If claims for concealed damage are not timely made, a presumption shall exist that such damage occurred subsequent to delivery, and the claim will be declined. All claims for concealed damage must be reported to PPS in writing within 48 hours of the time of delivery and a written claim must be made within 14 days of the time of delivery.
c. Overcharges: Claims for overcharges must be made in writing within 1 year following the date PPS accepted the Shipment.
d. Limitations on actions: Unless subject to a specific statute or international convention, PPS will not be liable in any action brought to enforce a claim unless the above claims procedures have been complied with and unless such action is brought within 1 year after the date written notice is given to the claimant that PPS has disallowed the claim in whole or in part. The failure to give PPS timely notice of a claim in accordance with these Terms and Conditions of Service shall be a complete defense to any action commenced by Merchant.
9. SERVICES NOT GUARANTEED: Unless agreed to in writing in advance of a Shipment, PPS undertakes to complete carriage with reasonable dispatch and does not guarantee pick up, transportation or delivery by a stipulated date or a stipulated time, nor shall PPS be liable for the consequences of failure to do so.
10. ANCILLARY SERVICE PROVIDERS: PPS, as agent for Merchant, shall use reasonable care in its selection of third parties that provide ancillary services to the transportation of a Shipment, such as packing, packaging or crating (or uncrating). Advice by PPS that a particular person or firm selected to render ancillary services shall not be construed to mean that PPS warrants or represents that such person or firm will render such services nor does PPS assume responsibility or liability for any actions(s) of such third parties and/or its agents.
11. RECORDKEEPING: Merchant acknowledges that it has the sole responsibility for maintaining records required of it by law and PPS has no obligations or liability related thereto. PPS shall only be required to keep those records required of it by applicable law or regulation.
12. INSURANCE: PPS is not an insurer of any Shipment and is under no obligation to procure insurance on Merchant’s behalf. Merchant is urged to procure adequate insurance coverage of its goods in transit.
13. QUOTATIONS NOT BINDING: Quotations as to fees, rates of duty, freight charges or other charges given by PPS to the Merchant are for informational purposes only and are subject to change without notice. No quotation shall be binding upon PPS unless an authorized representative of PPS in writing agrees to undertake the handling or transportation of the Shipment at a specific rate or service level and payment arrangements are agreed to between PPS and the Merchant prior to tender of the Shipment to PPS.
14. INDEMNIFICATION/HOLD HARMLESS: THE MERCHANT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PPS FROM AND AGAINST, AND SHALL PAY AND REIMBURSE PPS FOR ANY AND ALL DIRECT AND INDIRECT LIABILITIES, CLAIMS, LOSSES, EXPENSES, COSTS (INCLUDING ATTORNEY FEES) OR DAMAGES (FOR PURPOSES OF THIS PROVISION, “CLAIMS”) INCURRED OR OCCASIONED BY (i) A BREACH BY THE MERCHANT OF ANY OF THE WARRANTIES CONTAINED HEREIN; (ii) THE FAILURE OF THE MERCHANT TO COMPLY WITH THESE PROVISIONS; (iii) PPS’S EXECUTION OF MERCHANT’S INSTRUCTIONS; (iv) MERCHANT’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR (v) ANY AUXILIARY SERVICES INCLUDING BUT NOT LIMITED TO LOCAL CARTAGE, CRATING, UNCRATING, PACKING, AND UNPACKING WHICH ARE REQUESTED BY MERCHANT AND ARRANGED BY PPS AS AN ACCOMMODATION WHEN SUCH SERVICES ARE NOT ACTUALLY PERFORMED BY PPS; OR (vi) CLAIMS SEEKING TO IMPOSE LIABILITY IN EXCESS OF ANY LIABILITY EXPRESSLY ASSUMED BY PPS HEREIN OR IN EXCESS OF ANY LIMITATION OF LIABILITY TO WHICH PPS IS ENTITLED HEREUNDER. THE INDEMNITY OBLIGATIONS IN THIS PROVISION SHALL NOT APPLY TO THE EXTENT A CLAIM IS DETERMINED BY A COURT OF APPROPRIATE JURISDICTION TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF PPS.
15. CARGO SECURITY REQUIREMENTS: Shipments are subject to all cargo security requirements imposed by all applicable federal and/or state agencies, including but not limited to the Transportation Security Administration. Per 49 CFR 1548.9(b) Merchant hereby consents to screening of its Shipments which may include physical search or inspection of such cargo. PPS shall have the right to refuse, remove or abandon any Shipment, the transportation of which is prohibited by applicable law, orders or regulations, or the transportation of which, in PPS‘s judgment, would be unsafe. Where circumstances permit, such Shipment will be stored at Merchant’s expense pending receipt of disposition instructions from Merchant.
16. RIGHT TO REJECT OR RE-ROUTE: PPS reserves the right to reject any Shipment for any reason whatsoever, including but not limited to safety or security concerns. It is agreed that no time is fixed for the completion of carriage hereunder and that PPS may, without notice, substitute aircraft or alternate carriers, including surface and/or ocean carriers. PPS assumes no obligation to forward the goods by any specified carrier or over any particular route or routes or to make connection at any point according to any particular schedule, and PPS is hereby authorized to select, or deviate from, the route or routes of shipment, notwithstanding that the same may be stated on the face of the waybill and/or other shipping document(s).
17. PROHIBITED ITEMS: Unless otherwise expressly provided in a separate written agreement, and subject to any conditions or restrictions contained therein, the following articles will not be accepted for carriage: a) any Shipment prohibited by law; b) original works of art, antiques, bonds, coins of any kind, currency, currency equivalents, furs, fur clothing, gems or stones (cut or uncut), industrial diamonds, jewelry (other than costume jewelry), pearls, precious metals, securities (negotiable), stamp collections, time sensitive written material (e.g., bids, contract proposals, etc.); c) one-of-a-kind articles or models, prototypes, valuable rugs (i.e., Oriental rugs, Persian rugs) and prints or lithographs; d) improperly packed items; e) bulk products; f) live animals and plants; g) cigarettes and tobacco products; h) fresh foods or perishables; i) pharmaceuticals; computer chips and similar memory devices; j) cell phones, computers (including laptops), laser and laser equipment and plasma/LCD/OLED televisions; k) glass and glassware, including but not limited to, plate glass, signs incorporating glass, furniture with glass components, windows, artwork constituted of, or incorporating glass, lighting fixtures made of or incorporating glass, crystal, china or other similar fragile items; and l) such other articles as PPS may designate from time to time. PPS shall not be liable for any loss, damage, delay, liabilities or penalties resulting from the transportation of any of the foregoing articles, however described or misdescribed in the waybill or other shipping document(s), and no employee or agent of PPS has any authority to accept for transportation such articles or to waive the limitations herein contained except as set forth herein.
18. GENERAL LIEN: PPS shall have a continuing, general lien on all Shipments for all freight charges (including past due charges on other Shipments), advances or charges of any kind arising out of this contract and may refuse to surrender possession of any or all Shipment(s) until all such charges are paid and is entitled to all rights and remedies legally available. Shipments retained pursuant to the lien established herein may be subject to storage fees and/or disposed of at public or private sale, with PPS paid from the proceeds of such sale, including storage charges and costs of sale. PPS shall provide written notice to Merchant of its intent to exercise its lien, the amount of monies then due and owed, as well as any ongoing storage or other charges. Merchant shall notify all parties claiming an interest in the Shipment(s) subject to the lien of the exercise of PPS’s lien and PPS’s rights as set forth herein. Merchant remains liable for charges, including any deficiency remaining after sale.
19. STORAGE: If the consignee refuses any of the cargo or if PPS is unable to deliver any Shipment because of the fault or mistake of Merchant or the consignee, or if Merchant advises and instructs PPS to stop movement of the cargo and to hold it in transit, PPS’s liability thereafter immediately shall be that of a warehouseman. The procedures that PPS agrees to and shall take as a warehouseman involve the use of ordinary care to keep the cargo in a safe or suitable place to store the cargo. PPS shall (a) attempt to give Merchant notice as soon as possible if the foregoing occurs, (b) place the cargo in storage, if available, unless PPS receives acceptable contrary disposition instructions from Merchant within twenty-four (24) hours, and (c) if disposition instructions are not given by Merchant within thirty (30) days of PPS’s initial notification to Merchant, PPS may offer the cargo for public or private sale, return the Shipment to Merchant at Merchant’s sole risk and expense, or place the cargo into a public warehouse to the account of Merchant and in such case PPS shall have no further liability or obligation with respect to the Shipment. Merchant shall be responsible for storage costs and reasonable costs PPS incurs in acting as a warehouseman. If Merchant gives PPS timely disposition instructions, PPS shall use any commercially reasonable steps to abide with such instructions in accordance with this contract. Merchant shall pay PPS’s costs and any additional transportation costs that PPS incurs in doing so. MERCHANT SHALL REMAIN JOINTLY AND SEVERALLY LIABLE TO PPS FOR ANY DEFICIENCY SHOULD THE PROCEEDS OF ANY SALE BE INSUFFICIENT TO OFFSET ALL CHARGES DUE PPS WITH RESPECT TO THE GOODS. EXCESS PROCEEDS FROM A SALE WILL BE USED TO SATISFY ANY OUTSTANDING LIEN OR OBLIGATION DUE PPS FIRST, WITH ANY BALANCE THEREAFTER PAID TO MERCHANT. MERCHANT AGREES TO DEFEND, INDEMNIFY AND HOLD PPS HARMLESS AGAINST ALL LOSS AND EXPENSE, INCLUDING ATTORNEY’S FEES, OF WHATEVER NATURE BROUGHT BY ANY OTHER PERSON HAVING AN INTEREST IN THE GOODS SOLD UNDER THIS PROVISION.
20. C.O.D. OR COLLECT SHIPMENTS (“C.O.D.”): C.O.D. Shipments must be approved by PPS prior to tender. If approved, Merchant must enter the amount of the C.O.D. in U.S. dollars and cents in spaces specifically provided on the face of PPS air waybill or bill of lading, and must specify the type of payment to be received (e.g. cash, check, money order, etc.). Under no circumstances shall PPS be responsible if payment proves to be counterfeit, forged, or is for any reason dishonored. In the event payment is dishonored after delivery, Merchant will be invoiced those transportation charges and must remit payment for these charges within 15 days to the PPS.
21. CUSTOM DUTIES AND OTHER FEES: PPS is authorized by Merchant (but shall be under no obligation) to advance any duties, taxes, or charges and to make any disbursements with respect to a Shipment(s), and Merchant, owner and consignee shall be jointly and severally liable for the reimbursement thereof. PPS may charge an administrative fee to Merchant for all such advances.
22. PAYMENT TERM: Except as otherwise agreed, in advance and in writing, all invoice terms are net 30 days. Any payment which is past due shall be subject to an additional charge of 1 ½% per month of the outstanding balance due or the maximum interest rate permitted by applicable law, whichever is more, together with all collection costs, including reasonable attorney fees, incurred by PPS. Irrespective of Merchant’s use of a third-party payment agency, Merchant at all times remains primarily liable for payment of all PPS-invoiced charges. Merchant’s obligation to pay PPS’s invoices is not extinguished by Merchant’s payment to a third-party payment agency unless and until such third-party payment agency has actually paid all PPS invoices.
23. COMPLIANCE WITH LAW/EXPORT CONTROLS: Merchant shall comply with all applicable laws (including anti-corruption/anti-bribery laws such as the U.S. Foreign Corrupt Practices Act), government regulations and customs of any country to, from, through or over which the Shipment may be carried, including those relating to its packing, carriage or delivery, and shall furnish to PPS complete and accurate information and provide such fully legally compliant documents as may be necessary to comply with such laws and regulations. Merchant agrees that it will not engage PPS to transport cargo to any sanctioned or embargoed country or individual (directly or indirectly), whether or not PPS is engaged to transport such cargo to an end user.
24. SEVERABILITY: If any provision contained or referred to in this contract may be contrary to compulsory law, government regulations or orders, such provisions shall remain applicable to the extent that it is not overridden thereby. The invalidity of any provisions shall not affect any other part hereof.
25. NO MODIFICATION OR AMENDMENT UNLESS WRITTEN: Any attempt by Merchant to unilaterally alter or modify these Terms and Conditions of Service shall be null and void. Any modifications to these Terms and Conditions of Service may only be in a writing signed by authorized representatives of both parties. No obligation contained herein shall be deemed to have been waived by PPS unless in writing, and no such waiver shall be deemed a waiver of any other term or condition herein.
26. DISPUTE RESOLUTION AND GOVERNING LAW: These Terms and Conditions of Service, and the services provided by PPS under them, shall be governed by and subject to the applicable federal law of the United States and by the laws of the State of Massachusetts, without regard to the choice-of-law rules of that State or any other jurisdiction. The foregoing notwithstanding, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable by force of law. In the event of a direct conflict between these Terms and Conditions of Service and a mandatory provision of any such Convention, the terms of such Convention shall control, but only to the extent of such direct conflict. MERCHANT AND PPS AGREE THAT ANY CLAIM OR DISPUTE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER INTERNATIONAL CONVENTION, FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SERVING MASSACHUSETTS. MERCHANT AND PPS HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS. In the event Merchant files an action against PPS, Merchant hereby consents to any PPS-instituted transfer of such action to any other venue in which PPS is a party or subsequently becomes a party to an action concerning loss or damage to the Shipment that is the subject of Merchant’s action. Should PPS successfully defend itself in any legal actions brought by any person with an interest in a Shipment, PPS shall be entitled to reasonable attorney fees and litigation expenses.
27. Website customers, when they are sending the Economic Package (Ocean) if payment is not received within 10 business days of package leaving our facility (Ocean packages) there will be a $5.00/pkg handling fee added to the amount due us.
28. Website customers, when they are sending the Premium Package (Air), if payment is not received within 1-day of package leaving our facility (Air packages) there will be a $5.00/pkg handling fee added to the amount due us.