The air transportation intermediary operations of the Proposer are conducted based on this commercial proposal, applying to shipments whether covered or not by the Proposer’s standard Bill of Lading, and also applicable to simple deconsolidation operations covered by third-party Bills of Lading.
All services provided by the Proposer are based on national air legislation, international conventions ratified by Brazil, and the Bill of Lading issued for each operation or business.
The conditions established herein are complementary to the Bills of Lading and other transportation documents covering the agreed services; however, in case of any conflict between the conditions of this commercial proposal and other rules, these conditions shall prevail.
1. DEFINITIONS
1.1. “Bill of Lading” (B/L), as used in this document, includes conventional Bills of Lading, as well as electronic and express invoices, Air Waybills (AWB), and all similar documents.
1.2. “Transportation” means all operations and services performed by the Proposer regarding these goods.
1.3. “Charges” mean freight, dead freight, and all expenses and monetary obligations the Merchant/Acceptor is responsible for.
1.4. “Goods” mean the cargo or merchandise received from the shipper and described in the Bill of Lading, as well as any containers not provided by or on behalf of the Carrier.
1.5. “Merchant” is the contracting party for the services and includes the shipper, consignee, consignor, AWB holder, owner of the goods, endorsee of the Bills of Lading, or the person entitled to the possession of the goods. They are all jointly and severally responsible for the obligations contracted when hiring the services of the Proposer and third parties contracted by it.
1.6. “Carrier” means the airline. It is the issuer of the Bill of Lading and its cargo handling agents.
2. ACCEPTOR’S RESPONSIBILITY
2.1. The description and information about the goods declared in the Bill of Lading are the responsibility of the Merchant/Acceptor, who shall be liable for any burdens arising from inaccurate information or statements, including customs fines and operational costs for correcting such data (correction letter fee and customs fines). Cargo insurance must be contracted by the proposer, with the customer’s acceptance.
2.2. The Merchant/Acceptor guarantees compliance with all laws, regulations, and requirements of the authorities intervening in the international trade and transportation operation and will pay all taxes, fees, fines, expenses, and losses incurred or suffered due to any unlawfulness, inaccuracy, or insufficiency of information, marking, numbering, addressing, or any other elements related to the goods and the operation.
2.3. The Merchant/Acceptor also guarantees that the goods are packed and stowed adequately to withstand the inherent risks of transportation, taking into account their nature and in compliance with applicable laws, regulations, and requirements (legal and technical).
2.4. Goods that are or may become hazardous, flammable, harmful, or that are or may become capable of damaging any property or anyone, must be offered to the Carrier for transportation with the express prior written consent of the Proposer or the Carrier. The transport equipment used to package the goods must be correctly marked to indicate the nature and character of such articles, thus allowing the immediate identification of their contents. If the goods are delivered for transportation without written authorization or without the proper markings, or if, in the opinion of the Carrier or the Proposer, the articles are or may become hazardous, flammable, or harmful, they may, at any time, be destroyed, disposed of, abandoned, or rendered harmless, without compensation to the Merchant/Acceptor and without prejudice to what is due to the Carrier or the Proposer.
2.5. The Merchant/Acceptor shall defend, indemnify, and hold the Proposer harmless against any loss, damage, claim, liability, or expense of any kind arising from any violation of the Bill of Lading (or other transportation document) and/or this commercial proposal, as well as in case of non-compliance with any legal obligation, or for any cause related to the products for which the Carrier and the Proposer are not responsible. In case of necessary corrections to the Bill of Lading or the Cargo Manifest, the Merchant/Acceptor shall be responsible for any fines that may arise as a result thereof. In order to make the requested changes, the Carrier or the Proposer may request an indemnity letter and financial guarantee, such as a deposit. These guarantees are intended to protect the Proposer against fines that may be imposed in accordance with Brazilian customs legislation.
2.6. The Merchant/Acceptor must contract Cargo Insurance to ensure full compensation in case of loss or damage. In cases where insurance is contracted directly by the Acceptor, they cannot claim the right of recourse against the Proposer, pursuant to Article 754 of the Brazilian Civil Code.
2.7. The Proposer shall not be liable for the refusal to grant TC-4, being incumbent upon it, when contracted, only to request it from the airline. Therefore, in the event of refusal, the Proposer shall not be liable for the payment of any difference in warehousing costs that the Merchant/Acceptor may incur. The same applies to any customs regime, benefit, or advantage whose application is the responsibility of the Proposer.
2.8. The Merchant/Acceptor is solely responsible for any complaint, claim, fine, compensation, costs, or any other payment (including legal costs and attorney fees) that may arise or occur as a result of a violation or defect in the fulfillment of the obligations assumed before the Carrier and the Proposer. The Acceptor is responsible for providing correct and accurate information about the goods, their nature, and required care, as well as for their proper packaging and handling.
3. PROPOSER’S RESPONSIBILITY
3.1. The Proposer shall be liable only for acts or omissions strictly relevant to the performance of the agreed services, and if it is proven that the Proposer acted with specific intent in fulfilling its obligations. Problems in transportation, such as damage to the goods, contents, packaging, defects, cargo handling, loading, or any unlawful act committed by the Carrier, among others, are not within the scope of the Proposer’s liability.
4. AIR FREIGHT
4.1. Freights in “collect” and prepaid mode will be invoiced in the local currency (Real), using the exchange rate on the billing date.
4.2. In the case of imports, the time of charging occurs upon the aircraft’s landing in Brazilian territory. In the case of exports, the charge is due on the date of shipment abroad.
4.3. The values related to ICMS (Value-Added Tax), ad valorem, and warehousing will be provided by the carrier only after the arrival of the cargo and will be passed on to the Acceptor in the final invoice, to be sent by the Proposer.
4.4. All air freight, whether import or export, is subject to customs control and verification at public customs warehouses at airports and/or customs warehouses, on departure or arrival. Clearance procedures follow local legislation. Discrepancies in weight of 5% or more, discrepancies in labels, tags, and inconsistencies in the presented documents may lead to delays in the process and even loss of departure or delivery deadlines. The Proposer is not responsible for inconsistencies generated by the Merchant/Acceptor or third parties on their behalf in this regard.
4.5. The Proposer shall not be liable for any delays due to customs officials, regulatory agencies, and/or airport agents who, in the exercise of their duties to inspect cargo and documents, request additional documents other than the standard invoice, packing list, and air waybill to support the clearance process.
4.6. Exported goods are received within public warehouses at airports upon presentation of the AWB. The transfer of cargo from one airline to another is subject to re-labeling and must be accepted by both airlines involved.
4.7. Cargo transfer is also subject to tariff review. The Proposer is not responsible for the increase in storage fees and air freight due to transfer processes or works by customs.
4.8. The Proposer is obliged to adjust the tariff according to services offered, fees, and conditions of the first Carrier in question.
4.9. In air freight, 1 m³ is equivalent to a minimum of 167 taxable kilograms.
4.10. The offer and execution of air freight services are subject to the availability of the service by the Carrier, under the following terms:
a) “STD – STA” – “Scheduled Time of Departure/Arrival” – are the flight dates and times as published by the airline in its operational planning.
b) “ETD – ETA” – “Estimated Time of Departure/Arrival” – are the expected dates and times of flight operation, according to space reservation requested through a commercial service published by the airline. Loading on the estimated flight is subject to the actual flight operation and availability of weight due to operational reasons, air traffic conditions, weather conditions, security, airline product priorities, or other factors that may modify or prevent the planned operation. Different levels of service and corresponding tariff practices imply boarding priority and not necessarily boarding guarantee.
c) “ATD – ATA” – “Actual Time of Departure/Arrival” – are the actual dates and times of operation.
4.11. The freight stated in the proposal submitted and accepted by the Merchant/Consentor shall be valid only upon confirmation of the Booking by the airline. The total value estimates presented by the Proposer may be altered according to tariff variations at the time of booking and confirmation by the airline, as well as variations in weights, volumes, dimensions, pick-up and/or delivery location, and Incoterms informed at the time of cargo delivery by the exporter.
4.12. The Transit Time provided in the proposal by the Proposer is a mere estimate, considering that the Carrier may make route changes without prior notice, according to the best availability of space for cargo flow.
4.13. In cases where there is pick-up, weekends and the day of pick-up of the goods are not considered for calculating the Transit Time.
4.14. Shipments valued at USD 1,000.00/kg (one thousand dollars per kilogram) or more are classified as VALUATION CARGO, and the quotation will be reviewed accordingly and subject to acceptance by the Carrier.
4.15. Pick-ups sent in the Proposer’s proposals are considered LTL services. If a quotation considering dedicated/exclusive pick-up truck is required, it shall be agreed upon in a specific instrument.
4.16. All information contained in the Invoice, Packing List, and other documents related to the merchandise is the responsibility of the Consentor.
4.17. These general conditions do not apply to Charter flights; for these cases, conditions will be agreed upon in a specific instrument to be executed between the Parties.
4.18. In compliance with Law 9,779/99, regulated by RFB IN 1037/10, shipments originating from countries classified as “with favored taxation” are subject to withholding tax at a rate of 25%, with internal calculation effects, on the total value of the freight and other expenses stated on the Transport Document. The list of countries classified as “with favored taxation” is provided in RFB IN 1037/2010.
5. SPECIAL PROCEDURES
5.1. The Merchant – Importer or Exporter – is solely responsible for conducting pre-shipment inspections on their goods, as well as the proper use of different types of packaging, crates, stacking rules, securing, labeling, quantities, integrity states, among other inspections, to identify any pre-existing damages, such as, but not limited to, punctures, dents, tears, dirt, as well as the presence of foreign objects in the operation and/or other characteristics that may potentially affect the compliance of the shipment and/or damage the goods, provided that any abnormalities are duly noted in writing).
5.2. The Consentor must notify, in writing, prior to shipment, of any special procedures that must be applied to the shipment, such as temperature, removals, prescribed cargo, fragile cargo, dangerous cargo, etc.
5.3. In the case of removal for TC4 treatment, the role of the Proposer is to present such a request to the airline, without, however, being responsible in case of failure to grant this treatment.
6. SPECIFIC CONDITIONS RELATED TO DTA
– Storage transfer at the origin airport at the customer’s expense;
– IOF, PIS, CONFINS will be passed on;
– Ad valorem DTA: 0.20% (min. USD 20.00) of the total value of the merchandise will be charged, charged per HAWB;
– Freight will be charged using volumetric weight;
– Table applicable for general cargo in a shared truck, with maximum dimensions of 3.00 m length x 2.40 m width x 2.50 m height or 1,500 kg per volume;
– For cargo with measurements and weight exceeding the above, road freight will be charged according to the prevailing rate;
– In the event that the cargo requires ANVISA, MAPA approval, fumigation, or DGR cargo, there will be an administrative fee charged per process;
– DGR-compatible cargo with other goods will have an additional 30% surcharge on the freight;
– In the case of DGR cargo not compatible with other goods, the freight will be charged according to the above table with an additional 30%.
– For cargo valued above R$ 800,000.00, consultations and escort will be required, the cost of which must be approved and passed on to the customer;
– For computer, mobile telephony, processors, tablets, and their parts/components, mandatory PGR consultation and the possibility of sharing with other cargo should be considered;
– Road transport under customs transit regime – DTA, Airport to Airport (primary zone).
– Value not applicable for high-value, refrigerated, oversized, or pneumatically suspended cargo, for these cases, consult freight for specific truck.
7. APPLICABILITY
7.1. This commercial proposal applies to all air freight service contracts directly carried out by the Proposer or contracted by it and acts as complementary rules to all transportation documents relating to operations and services contracted.
8. SERVICE PROVISION
8.1. For the purposes of this commercial proposal, the Proposer will provide freight forwarding services to the Merchant/Consentor, including but not limited to, intermediation and forwarding of air cargo, through third-party contracts. The Proposer does not guarantee the delivery of goods within specific deadlines, as they depend on third parties contracted in the interest of the Merchant/Consentor.
8.2. As a Freight Forwarder or Cargo Agent, the Proposer will provide the contracted services through third parties, always in the best interest of the Merchant/Consentor, pursuant to Article 37 of Decree-Law No. 37/1966.
8.3. All subcontracted services are subject to special conditions that may be required by the parties involved. Therefore, contracted services may be canceled, postponed, or altered without prior notice. The forced use of operational alternatives and norms to fulfill obligations on the same requested routes or the forced use of different routes and standards may entail additional costs to be borne by the Merchant/Consentor. In the event of debts charged against the Proposer by the Carrier or another subcontractor, the Proposer shall have a right of recourse against the Merchant/Consentor, who must join the lawsuit and assume responsibility for the damages or expenses charged.
9. LIABILITY TO THIRD PARTIES
9.1. The Proposer is not responsible for any changes in prices and transportation conditions applied by third parties, such as airlines, or related to TAG (General Rate Increase), STA (High Season Surcharge), WRS (War Risk Surcharge), or any other additional charges that may be required by third parties. The Proposer only undertakes to inform and forward to the Consentor any changes that occur in such conditions or prices as quickly as possible.
10. FORCE MAJEURE
10.1. The Proposer shall not be liable for any losses or damages caused by circumstances beyond its control, such as, but not limited to, delayed cargo release, customs inspections, strikes, blockades, force majeure events.
11. CLAIMS OF DAMAGES
11.1. Identified damages must be immediately noted on the Bill of Lading or other delivery confirmation document at the time of goods pick-up and then communicated to the Proposer within 48 (forty-eight) hours, as failure to do so will presume that the goods were in perfect condition, obligating the importer and/or representative to assume the costs of any repairs, pursuant to Article 754 of the Civil Code.
12. FORMAL NOTIFICATION
12.1. In the event of any loss or damage presumed to have occurred during the period of responsibility of the Proposer, the Merchant/Consentor must provide formal written notification at the time of delivery of the goods. In the case of loss or damage that is not apparent, notification must be made within 10 (ten) calendar days after delivery, under penalty of forfeiture of the right to claim, pursuant to applicable law.
12.2. If notification is not made within the legal deadline, delivery will be prima facie evidence of discharge and delivery in good order by the Carrier and completion of the Proposer’s services.
12.3. In any case, the Proposer shall be exempt from liability of any kind if the right of the Consentor is not exercised within 1 (one) year after the discharge of the goods or the date on which the goods should have been discharged.
13. ACCEPTANCE
13.1. Any eventual acceptance, by the Proposer, of non-compliance or different compliance with any clause or condition of this commercial proposal shall be interpreted as mere indulgence, without implying waiver, novation, or forgiveness, and full compliance with the obligation may be required at any time.
14. RECEIPT
14.1. The declared nullity of any of the agreed clauses or conditions shall not cause the nullity of this commercial proposal, which shall remain valid and applicable in all other terms and conditions.
15. CONFIDENTIALITY
15.1. The Merchant/Consentor acknowledges that all information exchanged with the Proposer regarding these General Conditions and contracted services, especially information regarding special conditions, will be treated as confidential and under absolute secrecy. Any violation of this provision shall subject the Consentor to payment of damages caused to the Proposer.
16. ASSIGNMENT AND SUBCONTRACTING
16.1. The credit rights related to the commercial proposal may be assigned to companies of the same economic group, at the discretion of the Proposer, without the need for prior approval of the recipient. Likewise, the Proposer may subcontract all or part of the services covered by this commercial proposal.
17. JURISDICTION AND APPLICABLE LAW
17.1. The parties foresee the application of rules and International Agreements regarding foreign trade and national legislation regarding the interpretation of this proposal, with the jurisdiction of the Santos/SP District Court being elected by the parties as competent to settle any disputes arising from the application of the terms resulting from this commercial proposal, with express waiver of any other jurisdiction, however privileged it may be.
By agreeing to the above clauses, the Consentor declares to be aware of the terms and accepts them, with the effectiveness commencing from the beginning of the services offered by the Proposer.