UNLESS OTHERWISE DEFINED UNDER SEPARATE CONTRACT, ANY ENTITY USING THE SERVICES OF LANDMARK GLOBAL INC. AGREES TO THE FOLLOWING TERMS AND CONDITIONS.
This Services Agreement is entered into by and between:
- Landmark Global Inc., with registered office at 27 West Anapamu St. #357, Santa Barbara CA 93101, (“Landmark Global) and;
- Legal Entity using Landmark Global Services (the “Customer).
Entire Agreement – This Services Agreement includes each of the Shipping Solution and Tariff/Rate Sheet, Annex I, the applicable carrier terms and conditions for each geographic area and product offering (Annex II – Carrier Terms and Conditions), and the Customs Terms and Conditions (Annex III – Customs Terms and Conditions) if Landmark is performing customs formalities in association with the performance of the Services, viewable and available at all times on Landmark Global’s parcel management system Mercury through secure web-login and which Annexes form part of and are incorporated by reference into this Services Agreement. This Services Agreement, together with Annex I, Annex II and Annex III, and all terms and conditions of each annex, comprise and contain the entire Services Agreement.
Your Landmark Global Shipping Solution – Landmark Global shall provide the services as described in the Shipping Solution and Tariff/Rate Sheet (Annex I) (the “Services”). Detailed descriptions of each of the Services can be found in the Commercial Documentation on the landmarkglobal.com website. The rates stated in Annex I apply to the provision of the Services by Landmark Global. Unless noted otherwise, all tariffs and rates are in US dollars ($US) and exclude all applicable sales, retail, commodities, goods and services, harmonized, excise, VAT, indirect taxes and like taxes, fuel surcharges and all other taxes, duties, customs, levies, fees, charges, retributions, import and export taxes and charges, liabilities and/or other rights assessed or levied or to be assessed or levied in the future by any competent public, government, legal, taxation, customs agency, department or other federal, provincial, state, municipal or local authority (“Applicable Authority”), all of which are called “Excluded Costs”. All Excluded Costs, regardless of whether they are assessed or levied by an Applicable Authority against Landmark Global or any other party, are and remain Customer’s responsibility and liability and shall, as and when required, be payable by Customer
Confidentiality – The information contained in Annex 1 is confidential in nature and shall not be disclosed to any person or persons except for Customer’s directors, officers and employees. Customer shall be responsible for any breach of this confidentiality obligation by any individuals or entities affiliated with or under the legal direction, authorization or control of Customer. Any breach of this confidentiality obligation shall provide Landmark Global the right to immediately seek remedies available to Landmark Global by law for the breach or anticipated breach of this covenant and to protect its confidential information. This confidentiality provision shall survive the termination or expiration of this Services Agreement for a duration of two (2) years.
Notifications – Any official and/or legal notification, request, communication and all invoices within the framework of this Services Agreement shall be transmitted by certified/registered mail, addressed to:
For Landmark Global:
27 West Anapamu St. #357,
Santa Barbara CA 93101
Attn.: Todd Denholm
Payment terms and invoicing – Customer shall pay Landmark Global’s invoice for all Services rendered during that billing period, as reflected on each invoice, within fourteen (14) calendar days from the date of each Landmark Global invoice.
(a) To the fullest extent permitted by applicable law, Landmark Global’s liability to Customer under and in connection with this Services Agreement is limited: (A) to the direct and proven damages actually incurred by Customer and directly arising from a breach of Landmark Global’s obligations under this Services Agreement directly causing loss of, theft of or damage to a shipment. Landmark Global shall not be liable for any indirect, incidental, consequential, special, exemplary, punitive or like damages, including but not limited to costs of manufacture or printing, loss of time, loss of profit, loss of market, loss of income or revenue, loss of use or opportunity, damage to Customer’s image or reputation, pure economic loss etc. or any other indirect, incidental, consequential, special, exemplary, punitive or like damages due to the loss, deterioration, delay, wrong delivery or non-delivery of the shipment to Customer, even if Landmark Global was aware that such prejudice, damage, loss or cost could arise or be incurred; and (B) to the maximum aggregate liability amount of $100 per shipment, regardless of the value or the decrease in value of the content of the shipment during its handling or transportation (as such value or decrease in value may be proven by Customer by means of a proof of purchase and official receipt).
(b) Landmark Global is not liable for the nature of the goods, for their compliance with applicable legislation, or for documentation to be submitted by Landmark Global or Customer to an Applicable Authority in whatever form.
(c) Without prejudice to the application of any mandatory rule, Landmark Global shall not be liable for, nor shall any adjustment, refund, or credit of any kind be made to Customer for, any loss, damage, delay, mis-delivery or non-delivery or misinformation or failure to provide information including but not limited to any such loss, damage, delay, mis-delivery, non-delivery, misinformation or failure to provide information caused by or resulting from any of:
(i) actions, omissions, negligence or errors of Customer, receiver or third parties (including without limitation any Applicable Authorities, regulatory agencies or the customs service) or voluntary or involuntary non-compliance with any of their obligations;
(ii) the violation of any of the terms and conditions or requirements applicable to any shipment, including, but not limited to, the incorrect declaration of shipments, or the improper or insufficient packing, securing, marking or addressing of shipments;
(iii) any circumstances beyond the control of Landmark Global, such as force majeure or latent defects or shortcomings inherent to the content of any shipment; or
(iv) the nature of any shipment or any defect, characteristic or inherent vice thereof (including without limitation the fact that the shipment contains prohibited, dangerous or perishable goods, even if Landmark Global initially accepted the shipment).
Customer Responsibilities – Customer is responsible for providing all information necessary for Landmark Global to provide and perform the Services prior to the deposit of shipments, and Customer shall ensure all such information provided to Landmark Global is true, accurate and complete and Customer is and remains fully liable therefor. Customer shall review all documentation and/or data regarding each shipment and notify Landmark Global of any inaccuracies, errors or omissions found therein.
Liability of Customer – Customer is liable for all consequences that may arise from its non-compliance with the Services Agreement, as well as the applicable legislation and requirements of Applicable Authorities. Customer is, among other things, liable for damage to the shipments caused by, for example, inappropriate packaging as well as for damage caused to attendants, proxies or property of Landmark Global or third parties, to any other carrier or postal operator or to other property or shipments.
Indemnity – Customer shall fully defend, reimburse, indemnify and save harmless Landmark Global from and against each and all of:
(a) all Excluded Costs;
(b) all actions, claims, suits or demands of any nature whatsoever arising from third party claims which result from inaccuracies, mistakes or omissions in the information or documentation provided to Landmark Global by Customer and/or affiliates, agents, representatives or those under the control, supervision or legal responsibility of Customer, whether or not relied upon by Landmark Global, and/or prepared or furnished by Landmark Global on behalf of Customer for purposes of the Services; and
(c) all loss or damage, including, without limitation, indirect, incidental, consequential, special, exemplary, punitive and like damages sustained by Landmark Global in relation to the provision and or performance of any Services to Customer hereunder, save and except to the extent directly caused by Landmark Global’s gross negligence, willful misconduct or fraud in the performance of Services to Customer hereunder.
Volume Commitment– The tariffs and rates set out in Annex I are conditional upon and subject to the achievement by Customer of minimum volumes agreed upon at the time of rate acceptance, and defined in Annex 1
Amendments – This Services Agreement may only be amended in writing and signed by an authorized representative of each of the parties, save and except that Customer acknowledges and agrees that Landmark Global can update the tariffs and rates in Annex I upon written notice to Customer at least thirty (30) days before the application of the new tariffs.
Order of Precedence – To the extent of a conflict between the Agreement and its Annexes or between the Annexes, the order of precedence shall be as follows:
(a) Annex I – Shipping Solution and Tariff/Rate Sheet;
(b) This Services Agreement;
(c) Annex II Carrier Terms and Conditions (available within Mercury); and
(d) Customs Terms and Conditions (if applicable available at landmarkglobal.com).
Duration and Termination – This Services Agreement will come into effect on the first day of shipping and apply for an indefinite term. This Services Agreement can be terminated by either party upon fifteen (15) days written notice to the other party. If this Services Agreement is terminated by Customer, the Minimum Volume Commitment will be recalculated to the end of the quarter in which the termination notice was given to Landmark Global.
Severability – The nullity or unenforceability of any part of this Services Agreement, including its Annexes, for whatever reason does not affect the validity and enforceability of the remaining stipulations of this Services Agreement, including its Annexes. The Parties agree to replace the ineffective or invalid provision(s) by a similar provision which reflects as closely as possible the intent of the original clause.
Assignment – This Services Agreement binds and ensures to the benefit of each of Landmark Global and Customer and its respective successors and permitted assigns. Customer may not assign this Services Agreement in whole or in part without the prior written consent of Landmark Global. Landmark Global may assign this Services Agreement in whole or in part without Customer’s consent.
Competent courts and applicable law – This Services Agreement shall be construed in accordance with and shall be governed by the laws of California and the laws of the United States applicable therein. Any dispute shall be brought before the courts of California, which shall have exclusive jurisdiction. The parties hereby unconditionally waive their respective rights to a jury trial of any claim arising in any way in connection with this Services Agreement.
Terms – (a) In the event that Landmark Global is obliged to fulfill customs formalities, this will be done on Customer’s behalf and at Customer’s expense, either by Landmark Global itself or by a designated agent.
(b) Where Landmark Global acts as a customs broker/agent on behalf of Customer under the authority of a power of attorney and appended or related terms and conditions that govern the provision by Landmark Global of customs broker/agency services to Customer, such power of attorney and appended or related terms and conditions govern the provision of customs brokerage services by Landmark Global to Customer, and will prevail over the terms of these Customs Terms and Conditions to the extent of any inconsistency.
(c) Customer, or Customer’s customer, as the case may be, is and will remain the importer of the shipments in question regardless of whether Landmark Global has obtained customs clearance in lieu of the importer or otherwise has cleared or accounted for the shipments by using Landmark Global’s own importer account or in any other manner. Where Customer’s customer is the importer or owner of the shipments, Customer remains fully liable for the Excluded Costs.
(d) An administrative charge can be levied by Landmark Global for shipments that, upon inspection of Landmark Global’s officials, designated agent, or the competent authorities, are found to be undeclared or underdeclared in value, or to contain incorrect or missing customs documents or information. This charge will be levied in addition to any return charge to Customer. Additional administration charges and/or disbursement fees may also be levied by Landmark Global in connection with any casual refund programs of any customs authority the Customer has requested and authorized Landmark Global itself or its designated agent to submit and receive casual refund claims and payments on behalf of the Customer under and in accordance with such casual refund program.
(e) Unless otherwise stated, if applicable, duty and/or tax is converted and invoiced in USD. A 3.95% disbursement fee is also applicable to any duty and/or tax outlaid on Customer’s behalf.
(f) Requests for refunds of taxes, duties, fees, retributions or charges invoiced by competent authorities with regard to undelivered shipments, general returns or incorrect data will have to be agreed on a case by case basis between Landmark Global and the Customer.
2. Customer Responsibilities – (a) Customer is exclusively liable for compliance with customs formalities and any applicable laws and regulations, including but not limited to import and export regulations of the origin, destination and transit countries. Customer acknowledges it is fully liable to civil and/or criminal penalties and/or prosecution if it makes untrue, inaccurate, incomplete or misleading declarations about the content of shipments, including, without limitation, the values, origin and classifications (including harmonized systems codes) of the contents of all shipments. If Customer makes untrue, inaccurate, incomplete or misleading declarations about the content of shipments, Landmark Global has the right to terminate the Services Agreement unilaterally by registered letter.
(b) Where applicable, Customer is responsible to have the valid certificates or other proof of origin to support any preferential tariff treatment applications claimed on import documentation or required to fulfill any other customs formalities, and Customer agrees that these certificates will be made available if requested by Landmark Global or any Applicable Authority. Customer shall also promptly present, furnish and deliver to Landmark Global and/or any Applicable Authority, as applicable, as and when requested, required or otherwise desired by Landmark Global and/or the Applicable Authority, original hard copies or other forms of documentation to support any casual refund claims and/or payments, including (without limitation) documents evidencing the import of the goods, the accounting for such goods with the Applicable Authority (including, without limitation, the details regarding the duty and taxes paid for such goods), the shipping and delivery documents for such goods, the return of those goods by the buyer thereof, the credit note issued by the Company to the buyer of the goods, the refund claim and other original import and export documentation in connection with the import and export of such returned goods. The Customer acknowledges that even if the Applicable Authority does not itself request any additional documents, in original hard copy or other form, that Landmark Global has the right to do so, and the Customer shall promptly comply with such request. The Customer understands, acknowledges, and agrees that its failure to promptly respond to Landmark Global may cause AMPS, penalties and other special charges, fees or damages to be imposed by an Applicable Authority against Landmark Global and /or its designated agent, and that the Customer is solely responsible for, and shall indemnify and hold Landmark Global and its designated agent harmless against all such amounts pursuant to Sections 2(f) and 4 hereof.
(c) In case the Customer has chosen services including customs clearance, it is the Customer’s obligation to grant, or to ensure that the Receiver will grant (at the latest at the moment of conclusion of the sales contract between the Customer and the Receiver), a written, irrevocable and unconditional power of attorney (legal permission) to Landmark Global or its designated agent, to act on behalf, at the expense and at the risk of the Customer, or as the case may be, the Receiver, to undertake the following actions:
- to fulfill all customs formalities (including but not limited to the arrangement of the importation of each Harmonized systems code shipped by the Customer, the assignment and amendment of Harmonized System classification codes and any other product or service codes, the payment of any duties or taxes required under applicable laws and regulations, the management of any dispute with all relevant customs and revenue authorities regarding customs classifications, applicable duties and/or taxes and the completion of all required documents to this end);
- to designate the customs agent(s) of its choice;
- to present for customs clearance in the country of its choice and to acknowledge that the country of customs clearance will not necessarily be the country of residence of the Receiver;
- to submit requests for repayment, remission or refund and to submit written objections or appeals relating to incorrect data stated in the customs declaration (as compared to the data supplied when the order was placed);
- to proceed, at the request of the Customer, or as the case may be, the Receiver, to submit requests for repayment, remission or refund and to submit written objections or appeals relating to incorrect data supplied when the order was placed;
- to submit written objections or appeals relating to corrections up to the completion of the verification of the customs declaration;
- to receive payment of all import duties, taxes and all other sums or damages, as well as any interests thereto, directly to the bank account of Landmark Global or affiliated companies in case of successful requests for repayment, remission or refund. Landmark Global will be fully entitled to all repayments, remissions and refunds, including all interests, obtained under this article.
(d) It is the Customer’s full and sole responsibility to provide Landmark Global with a power of attorney which is complete, valid as to the form, content, language, etc. and acceptable for the relevant customs authorities.
(e) Under no circumstances shall such power of attorney, granted by the Customer or the Receiver, create a direct contractual relation between Landmark Global and the Receiver or allow the Receiver to create or assume rights or obligations on behalf of Landmark Global.
(f) In case of failure to provide the above mentioned power of attorney or of any other non-compliance with this article, the Customer shall remain fully and solely liable for, and shall indemnify Landmark Global for all duties and taxes, and protect, defend and hold harmless Landmark Global against any and all claims, liabilities, fines, penalties, damages, costs or other consequences as a result of the non-compliance to these customs provisions, including but not limited to:
- the payment of all costs and charges ensuing from any request for documents to confirm Landmark Global’s authority in such a case to the customs authorities;
- the payment of all costs and charges for any Shipments to and returns from countries where entry is not permitted;
- any Shipments abandoned in customs, which are or may be considered undeliverable.
(g) The Customer further acknowledges that he shall be prohibited from sending B2B parcels (intended for resale purposes) for services including customs clearance, unless prior written approval, as well with regard to the specific conditions, from Landmark Global.
(h) The Customer expressly agrees that, where customs clearance of the Shipments is required, the personal data figuring on customs document as well as the relevant Harmonized systems code(s), shall be transmitted (electronically) to Landmark Global and its agencies authorized by Landmark Global, the postal operator, customs authorities and IPC or similar organizations or subcontractors and competent authorities in the country of departure and destination for pre-announcement purposes. The Customer confirms having duly informed the Receiver of this intended use and having obtained his consent for such transmission of his personal data.
3. Liability of Customer – Customer agrees and understands that Customer is solely responsible for providing Landmark Global with true, accurate and complete information for customs declarations (including, without limitation, values, origins and classifications of the content of all shipments) and/or other documentation to be submitted to an Applicable Authority (including harmonized systems codes) and Landmark Global has no responsibility to verify such information and is not liable for any decision made in relation to it by an Applicable Authority. Where Landmark Global has provided or completed customs declarations or other documentation on behalf of Customer, including by providing harmonized systems codes, Customer remains liable for the consequences of the decisions taken by any Applicable Authority. Customer is fully liable for untrue, inaccurate or incomplete information furnished by Customer for purposes of customs declarations, and for the consequences of the decisions taken by any Applicable Authorities pursuant to the checking of international shipments submitted to their controls. Any documents, information and supporting materials for any of the foregoing may be required by Landmark Global and/or an Applicable Authority to be presented, furnished or delivered in an original hard copy form, and the Customer shall promptly comply with this request. The Customer understands, acknowledges and agrees that its failure to promptly respond to Landmark Global may cause AMPS, penalties and other special charges, fees or damages to be imposed by an Applicable Authority against Landmark Global and /or its designated agent, and that the Customer is solely responsible for, and shall indemnify and hold Landmark Global and its designated agent harmless against all such amounts pursuant to Sections 2(f) and 4 hereof. The Customer obligations under this Section 3 are in addition to those set out in Section 2(b) hereof.
4. INDEMNITY – Customer shall, and does hereby, fully defend, reimburse, indemnify and save harmless Landmark Global against all charges, fees, costs, penalties, claims, losses, damages, expenses or liabilities incurred by Landmark Global in connection with the performance of any services rendered by Landmark Global to the Customer, including (without limitation) all claimed but rejected refunds, investigations, reviews and audits by any Applicable Authority, any customs duties and provincial/state taxes, goods and services taxes, harmonized taxes, special import taxes and all other taxes and levies, AMPS, fines, penalties, interests or other special charges, fees or damages imposed, charged or assessed by any Applicable Authority against Landmark Global under or in connection with any of Landmark Global’s services to the Customer including (without limitation) any casual refund services or under any CREDITS Programs or otherwise imposed by any Applicable Authority with authority in respect of international shipments that are imported/exported or to be imported/exported across national borders.
5. Acknowledgement and Additional Terms – The Customer acknowledges, agrees and confirms with and to Landmark Global that (a) any Applicable Authority may change its requirements and /or the applicable timelines therefor, at any time and from time to time; (b) Landmark Global, in order to continue providing the services to the Customer hereunder, including (where applicable) any casual refund services under a CREDITS Program, will (i) comply with all Applicable Authority requirements, as they may change from time to time, and (ii) impose on the Customer and/or its customer additional requirements and timelines within which to satisfy such requirements, to ensure that Landmark Global is always able to comply with the Applicable Authority’s requirements in the performance of its services and/or to retain its eligibility to enroll in various programs with Applicable Authorities, including (without limitation) any CREDITS Program; and (c) if Landmark Global is unable to provide any required document, in original, hard copy or other form, as required by the Applicable Authority, within the timeline requested by Landmark Global so that Landmark Global is able to respond to and satisfy the request or requirement of the Applicable Authority, then (i) the Applicable Authority may refuse to allow Landmark Global to perform any services for the Customer, including (without limitation) submit any refund claim, and may reject any submitted claim, and (ii) the Customer is wholly liable therefor and will indemnify and hold Landmark Global harmless for all costs, fees, charges, damages, penalties, interest, levies, taxes, losses, liabilities, and other expenses incurred by Landmark Global in connection therewith or arising from the inability of Landmark Global to operate under any power of attorney from the Customer or its customer including (without limitation) to submit a refund claim or to obtain a refund under any CREDITS Program.