The Tenderer’s air transport intermediation operations are conducted on the basis of this business proposal, applying to shipments whose operation is covered or not by the standard Bill of Lading of the Tenderer, and is also applicable to operations of simple deconsolidation, covered by thirdparty Bills of Lading. All services provided by the Tenderer are based on national air legislation, international conventions ratified by Brazil and the Bill of Lading issued for each operation or business. The conditions herein are complementary to the Bill of Lading and other transport documents covering the agreed services, however, in the event of any conflict between the conditions of this business proposal and other rules, these shall prevail.
1.1. “Bill of Lading” as used in this document, includes conventional Bills of Lading as well as electronic and express invoices, “Air Waybill of Lading” (AWB) and all similar documents.
1.2. “Transport” means all operations and services carried out by the Tenderer in relation to such goods.
1.3. “Fees” means freight, dead freight, and all pecuniary expenses and obligations of the merchant / Consenting Party.
1.4. “Goods” means the cargoes or goods received from the sender and described in the Bill of Lading, as well as any container not supplied by or on the carrier’s behalf.
1.5. “Merchant” is the contractor of the services and comprises the sender or shipper, recipient, consignee, AWB owner, owner of the goods, endorsee of the Board of Lading, or the person entitled to possession of the goods. They are all jointly and severally responsible for the obligations incurred by contracting the services of the Tenderer and third parties contracted by it.
1.6. “Carrier” means the airline. It is the issuer of the Board of Lading and its loading or unloading agents.
2. MERCHANT’S / CONSENTING PARTY’S LIABILITY
2.1. The description and information on the goods declared in the Bill of Lading are accounted for by the Merchant, who will be responsible for any charges arising from inaccurate information or declarations, including customs fines and operating costs for correcting such data (correction letter fee and customs fines). The contracting of the cargo insurance must be carried out by the tenderer, with the customer’s acceptance.
2.2. The Merchant / Consenting Party guarantees that they have complied with all laws, regulations and requirements from the authorities involved in the operation of international trade and transport, and will pay all taxes, fees, fines, expenses and losses incurred or undergone due to any unlawfulness, inaccuracy or insufficiency of information, marking, numbering, addressing or any other elements relating to the goods and the operation.
2.3. The Merchant / Consenting Party also ensures that the goods are properly packaged and stowed to bear the risks inherent to the transport, taking into account their nature and in accordance with applicable laws, regulations and requirements (legal and technical).
2.4. Goods that are or may become dangerous, flammable, harmful or that are or may become liable to damage any property or whoever it is, shall be offered to Carrier for transport with the prior express written consent of the Tenderer or Carrier. The transport equipment used to package the goods must be correctly marked in such a way as to indicate the nature and character of such articles, thus allowing the immediate identification of their content. Where the goods are delivered for transport without written authorization or without proper markings, or, if, in the opinion of Carrier or Tenderer, the articles are or may become of a dangerous, flammable or harmful nature, they may at any time be destroyed, disposed of, abandoned or rendered harmless, without compensation to the Merchant / Consenting Party and without prejudice to what is due to the Carrier or the Tenderer.
2.5. The Merchant / Consenting Party shall defend, indemnify and hold the Tenderer harmless from liability against any loss, damage, claim, responsibility or expense of any nature arising from any breach, either of the Bill of Lading (or other transport document) and/or this business proposal, as well as, in the event of non-compliance with any legal obligation, or any cause related to the products for which the Carrier and the Tenderer are not responsible. In case of corrections necessary for the Bill of Lading or the Cargo Manifest, the Merchant / Consenting Party will be liable for the fines that may arise as a result of them. In order to carry out the requested changes, the Carrier or Tenderer may request a letter of indemnity and a financial guarantee, such as a deposit. These guarantees are intended to protect the Tenderer against fines that may be applied in accordance with Brazilian customs legislation.
2.6. The Merchant / Consenting Party must contract Cargo Insurance to ensure full compensation in case of losses or malfunctions. In cases of insurance contracting directly by the Consenting Party, it may not require the right of return against Tenderer, pursuant to art. 754 of the Brazilian Civil Code.
2.7. The Tenderer will not be responsible for the negative in the granting of TC-4, and it is responsible, when contracted, only to request the airline. In the event of a negative, therefore, The Tenderer shall not be responsible for the payment of any difference in storage costs that the Merchant / Consenting Party may bear. The same applies to any customs procedure, benefit or advantage which may be requested by the Tenderer.
2.8. The Merchant / Consenting Party is solely responsible for any complaint, claim, fine, indemnification, costs or any other payment (including legal costs and attorney’s fees) that may arise or occur due to violation or defect in the performance of the obligations assumed before the Carrier and the Tenderer. The Consenting Party is responsible for providing correct and accurate information about the cargo, its nature and care required, as well as for their proper storing and packaging.
3. TENDERER’S LIABILITY
3.1. The Tenderer shall be held liable only for acts or omissions strictly pertaining to the performance of the agreed services, and being proven that the Tenderer acted with oblique intent in the fulfilment of its obligations. The scope of liability of the Tenderer does not include any problems in the transport, such as damage to the goods, content, packaging, defects, handling of cargo, shipment, illegal act committed by the Carrier, among others.
4. AIR FREIGHT
4.1. Freights in the “collect” modality will be subject to the collection of a Collect Fee and will be billed in local currency (Real), using the exchange rate (PTAX of the day of billing and with added spread), as an administrative cost.
4.2. All air freight, whether imported or exported, is subject to customs control and verification in public customs warehouses at airports and/or customs warehouses, on departure or arrival. Clearance procedures follow local legislation. Discrepancy of weight of 5% or more, discrepancy of labels, tags and inconsistencies in the documents presented can lead to delays in the process and even loss of the departure or delivery time. The Tenderer is not responsible for the inconsistencies generated by the Merchant / Consenting Party or third parties of its part to this effect.
4.3. The Tenderer shall not be liable for any possible delays by customs officers, regulatory agencies and/or airport agents, who, in the performance of their duties of inspecting cargo and documents, require additional documents other than the standard invoice, packing list and air waybill, to support the clearance process.
4.4. Exported cargoes are received within public warehouses in the airports upon presentation of the AWB. The cargo transfer from one airline to another is subject to relabeling and must be accepted by the two airlines involved.
4.5. Cargo transfer is also subject to fare review. The Tenderer is not responsible for the increase in the rate of air storage and freight by virtue of the transfer process or works accounted for by customs.
4.6. The Tenderer is obliged to adjust the fare according to the services offered, fees and conditions of the first Carrier in question.
4.7. In air freight, 1 mÑ (one cubic meter) is equivalent to a minimum of 167 taxable kilos.
4.8. The offer and execution of air freight services is subject to the availability of the service by the Carrier, according to the following terms: a) “STD – STA” – “Scheduled Time of Departure/Arrival” – are the dates and times of flight as published by the airline in its operational planning.
b) “ETD – ETA” – “Estimated Time of Departure/Arrival” – are the expected dates and times of operation of flights, according to the reservation of space requested from a commercial service published by the airline. The estimated flight loading will be subject to flight completion and weight availability for operational, air traffic, weather, safety conditions, airline product priorities, or other factors that may modify or prevent the planned operation. Different levels of service and corresponding tariffication practiced imply a shipping priority and not necessarily the guarantee of shipping.
c) “ATD – ATA” – “Actual Time of Departure/Arrival” – are the actual dates and times of the operation.
4.9. The freight contained in the proposal forwarded and accepted by the Merchant / Consenting Party will be valid only after Booking confirmation by the airline. The total value estimates presented by the Tenderer may be changed according to the variations in fares at the time of booking and booking confirmation by the airline, in addition to variations in weights, volumes, dimensions, place of collection and/or delivery and Incoterm informed at the time of delivery of the cargo by the exporter.
4.10. The Transit Time informed in the proposal by the Tenderer is a mere estimate, considering that the Carrier can make route changes without notice, according to the best space availability for cargo flow.
4.11. In cases where there is collection, weekends and the day of collection of goods are not considered for transit time calculation.
4.12. Cargoes with a value higher than USD 1,000.00/KG (one thousand dollars per kilogram) are classified as VALUATION CARGO and the quotation will be revised accordingly and subject to the Carrier’s acceptance.
4.13. The collections sent in the Tenderer’s proposals are considered LTL services, if quotation considering a dedicated/exclusive collection truck is needed, it must be agreed upon in a specific instrument.
4.14. All information contained in invoice, packing list and other documents relating to the merchandise are the responsibility of the Consenting Party.
4.15. These general conditions do not apply to flights in charter mode, for these cases, the conditions will be agreed upon in a specific instrument to be signed by the Parties.
5.1. This business proposal applies to all contracts for air modal services carried out directly by or under contract by the Tenderer, and act as complementary standards to all transport documents relating to operations and services contracted.
6. PROVISION OF SERVICES
6.1. For the purposes and effects of this business proposal, the Tenderer will provide freight forwarding services to the Merchant / Consenting Party, which include, but are not limited to, intermediation and routing of air cargo, upon hiring of third parties. The Tenderer does not guarantee the delivery of the goods within specific deadlines, due to the reason that they depend on contracted third parties, on the Merchant’s / Consenting Party’s concern.
6.2. As Freight Forwarder or Freight Agent, the Tenderer will provide the services contracted through third parties, always to the best interest of the Merchant / Consenting Party, pursuant to art. 37, Decree-Law No. 37/1966.
6.3. All subcontracted services are subject to special conditions that may be required by the parties involved. Therefore, contracted services may be cancelled, postponed or changed without any prior notice. The forced use of operational alternatives and standards for compliance with obligations on the same routes requested or the forced use of different routes and standards may incur additional costs to be borne by the Merchant / Consenting Party. In the event of debts collected against the Tenderer by the Carrier or other subcontractor, the Tenderer shall have the right of return against the Merchant / Consenting Party, who shall enter the trust and assume responsibility for the damages or expenses charged.
7. LIABILITY TO THIRD PARTIES
7.1. The Tenderer is not responsible for any changes to transport prices and conditions applied by third parties, such as airlines, or related to TAG (General Increase Rate), STA (High Season Surcharge), SRG (War Risk Surcharge) or any other additional charges that may be required by third parties. The Tenderer only undertakes to inform and forward to the Consenting Party any change that occurs under such conditions or prices, as soon as possible.
8. FORTUITOUS CASE AND/OR FORCE MAJEURE
8.1. The Tenderer shall not be liable for any loss or damage caused by circumstances outside its control, such as, but not limited to, delay in the release of cargo, customs inspections, strikes, blockades, fortuitous cases or force majeure.
9. CLAIMS ON DAMAGES
9.1. The identified damages must be immediately taken note of in the Bill of Lading or other document which serves as proof of delivery at the time of the goods withdrawal, being then communicated to the Tenderer within 48 (forty-eight) hours, behold, in its omission, it will be presumed that it was in perfect condition, obliging the importer and / or representative to take on the costs of any repairs, pursuant to Art. 754 of the Civil Code.
10. FORMAL NOTIFICATION
10.1. In the event of any loss or damage that is presumed to have occurred during the period of Liability of the Tenderer, the Merchant / Consenting Party shall provide formal written notice at the time of delivery of the goods. In the event of loss or damage that is not apparent, the notification shall be made within ten (10) calendar days of delivery, under penalty of decay of the right of complaint, in accordance with applicable law.
10.2. If the notification is not made within the legal period, the delivery will be prima facie evidence of discharge and orderly delivery by the Carrier and completion of the Tenderer’s services.
10.3. In any event, the Tenderer shall be exempted from liability of any kind if the Consenting Party’s right is not exercised within one (1) year after the unloading of the goods or the date on which the goods should have been unloaded.
11.1. Any possible acceptance by the Tenderer of non-compliance or compliance other than any clause or condition of this business proposal will be construed as mere indulgence, without implying waiver, renewal or forgiveness, with the possibility of full compliance with such obligation to be requested at any time.
12.1. The declared nullity of any of the agreed clauses or conditions shall not cause nullity of this business proposal, which shall remain valid and applicable in all of its other terms and conditions.
13.1. The Merchant / Consenting Party acknowledges that all information exchanged with the Tenderer regarding these General Conditions and the contracted services, especially the information relating to the special conditions, will be treated as confidential and under absolute secrecy. Any breach of this provision shall subject the Consenting Party to the payment of the losses caused to the Tenderer.
14. ASSIGNMENT AND SUBCONTRACTING
14.1. The credit rights related to the Business Proposal may be assigned to companies of the same economic group, at the discretion of the Tenderer, without prior approval by the Consenting Party. Likewise, the Tenderer may subcontract in whole or in part the services that are the subject of this Business Proposal.
15. JURISDICTION AND APPLICABLE LAW
15.1. The parties provide for and shall apply the rules and International Agreements relating to foreign trade and national legislation on the interpretation of this Business Proposal, being elected by the parties the Forum of the District of Santos / SP as the one competent to resolve any disagreements regarding the application of the terms arising from this Proposal, with express waiver to any other, however privileged it may be. And because it is in accordance with the retro clauses, the Consenting Party declares to be aware of the terms, accepting them, and they will come into effect from the beginning of the services Aoffered by the Tenderer.