ARK TRANSPORTATION TERMS AND CONDITIONS

 

By clicking “Accept” to Ark Transportation’s TERMS AND CONDITIONS and digitally signing the online customer application, the signing party or (“Firm”) hereby agrees to the Terms and Conditions or (“agreement”) herein and agrees to all the conditions explicitly and not explicitly defined within this conditions.

 

Recitals

Ark is a shipping, storage, and logistics company that operates within multiple aspects of the global supply chains and may, at times, hire subcontractors to perform services for its customers; Customer is the person or business receiving shipping, storage, and logistical support, including any services provided by Ark. Therefore, in exchange for the representations and promises to set forth below, the sufficiency of which each Party acknowledges, the Parties agree as follows.

 

Definitions

  • Customer means a person or entity who contracts with Ark for Ark to ship Goods, to store Goods, or to provide logistical and supply chain support or services within the shipping or storage industries.
  • Goods means any tangible item that Customer may ship or store under the terms of this Agreement.
  • Including (regardless of capitalization) is illustrative and not restrictive and shall mean “including but not limited to.”
  • Laws means laws, regulations, governmental requirements, and industry standards, including regarding labor, immigration, safety, environment, privacy, or data security.
  • Services means the shipping, handling, storage, or logistical work performed by Ark under this Agreement and any other agreement.
  • Storage Facility means a building suitable for safely and securely keeping Goods, the locations for which, if applicable, shall be set forth in a Scope of Work or Addendum to this agreement.

 

Terms and Conditions

 

  1. Payment. All fees and other amounts payable by Customer under this Agreement (“Fees”) are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on ARK’s income. Customer shall prepay all charges and fees, unless approved for credit and subject to credit terms and conditions. Customer shall make all payments hereunder in U.S. dollars and in the manner or manners that ARK may specify in writing from time to time. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) ARK may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse ARK for all reasonable costs incurred by ARK in collecting any late payments or interest, including attorney’s fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, ARK may suspend performance of the Services until all past due amounts, costs, and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person or entity by reason of such suspension. All amounts payable to ARK under this Agreement shall be paid by Customer to ARK in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. By clicking the “accept” on Ark Transportation’s online web credit application and digitally signing the online customer application, the signing party (“The Firm”) hereby gives up their right to notice and court trial. If The Firm does not pay on time a court judgment may be taken against The Firm without The Firm’s prior knowledge and the powers of a court can be used to collect from The Firm regardless of any claims The Firm may have against the creditor whether for returned goods, faulty goods, failure on their part to comply with the agreement, or any other cause.
  2. Estimates: All SOW, change orders, or any quotes or proposals given by ARK to Customer is purely as estimate. These estimates, if given, are based on our professional judgement, but always with a clear understanding that they are not a binding maximum or fixed fee quotation and are in all respects subordinate to and superseded by the other terms of our engagement. The actual cost may be higher than our estimate because of the unforeseen changes, events, new requirements, or delays that occur or circumstances that may arise which require us to perform additional services not originally anticipated or expected. Often, we cannot anticipate the ultimate complexity of the services at hand, nor the time and labor that will be required of us to handle it properly. The ultimate cost is frequently more or less than any estimate. The Customer is responsible for any cost that are above and beyond the estimate.
  3. Travel & Expenses: Travel to Customer site will be billed on a Time & Materials Basis. All expenses related to travel will be billed to Customer. Car Rental: ARK has reduced rate car rentals with multiple car rental companies. When ARK rents a car for a customer, it is of a full-size. The earlier the booking can occur will generally yield a better rate. Hotels: If a hotel is needed, a 3-star hotel or above will be booked. ARK also has reduced rates with multiple hotel chains. Flights: If a flight is needed, a ticket will be purchased as applicable. The earlier the booking can occur will generally yield a better rate.
  4. Term and Termination. This Agreement will automatically renew on an annual basis, with the same terms as in the final year of the Term, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least seven (7) days prior to the expiration of the then-current term. In addition to any other express termination right set forth elsewhere in this Agreement, ARK may terminate this Agreement if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after ARK’s delivery of written notice thereof; or (ii) breaches any of its obligations under this Agreement.
  1. Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as an entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and to grant the powers, rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, CUSTOMER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CUSTOMER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ARK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL ACHIEVE ANY INTENDED RESULT. THE SERVICES DO NOT REPLACE THE NEED FOR CUSTOMER TO MONITOR ALL ASPECTS OF ITS OPERATIONS THAT RELATE TO THE SERVICES.
  2. Indemnification. Customer shall indemnify, defend and hold harmless ARK and its members, officers, directors, employees, agents, successors and assigns (each, a “ARK Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, incurred by such ARK Indemnitee that arise out of or relate to this Agreement or Customer’s use of the Services.
  3. Limitations of Liability. IN NO EVENT WILL ARK OR ANY ARK INDEMNITEE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS OR ENTITIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ARK OR ANY ARK INDEMNITEE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER FOR THE PRIOR SIX (6) MONTHS, IF ANY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  4. Force Majeure. In no event will ARK be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond ARK’s reasonable control (a “Force Majeure Event”), which shall include but not be limited to acts of God, flood, fire, failure or delay in software or hardware, loss of data, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
  5. Modification; Entire Agreement; Waiver. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right, remedy, power or privilege. Notwithstanding anything to the contrary, ARK reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of ARK’s services to its customers, (ii) the competitive strength of or market for ARK’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
  6. Miscellaneous. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. ARK may, without Customer’s consent, include Customer’s name, logo, trademark and/or other indicia in its lists of ARK’s current or former customers of ARK in promotional and marketing materials. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ARK’s prior written consent. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the state or federal courts located in Cuyahoga County, Ohio, and Customer unconditionally and irrevocably submits to the exclusive jurisdiction of, and waives all objections to the laying of venue (including any objection of forum non conveniens) in, such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. Customer shall execute and deliver to ARK any and all reasonable documents, instruments, and agreements in addition to those expressly provided for herein that may be necessary or appropriate to effectuate the provisions of this Agreement and the other documents to be delivered in connection herewith. Customer shall not, and shall not permit any other person or entity to, during the Term and for two (2) years after, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any person or entity then or within the prior twelve (12) months employed or engaged by ARK.
  7. Non-Discrimination. Ark will not discriminate against a Customer for exercising any of their CCPA rights. Unless permitted by the CCPA, Ark will not: Deny you goods or services; Charge their different prices or rates for goods or services, including through granting discounts or other benefits, or imposing penalties; Provide you a different level or quality of goods or services; Suggest that the Customer may receive a different price or rate for goods or services or a different level or quality of goods or services.
  8. The Customer agrees to Ark shall have the right to take the following acts on Grantor’s behalf: (1) Establish new or alter existing carrier and transportation contract and/or agreement parameters, requirements, and rate structures. (2) Negotiate with current carriers, transportation partners, and new carriers. This Authorization shall apply to all of the Customer’s locations, whether owned, operated, leased, or controlled by Customer and all of Customer’s affiliates and subsidiaries unless otherwise stated in writing and provided to Ark.
  9. Distribution of Information . The information Ark receives from the customer is voluntary. Please note that data protection laws in the United States differ from those in other countries. By providing Ark information, the customer consents to the collection of their information and agrees that their information may be subject to access requests from governments, courts, or law enforcement in the United States according to the laws of the United States. Except as specified in this Privacy Policy or otherwise with your consent, Ark will not sell, rent, trade or otherwise distribute your information to any other organization unless compelled by law or legal process. Ark may, however, disclose some information to agents or carriers for the purpose of performing services on behalf of the customer. To protect our customers’ privacy, Ark only works with companies that agree to maintain strong confidentiality protections and prohibit them from using the information Ark provides for any other purpose. Ark does not permit these agents or carriers to sell or otherwise distribute the information Ark provides them.

[End of Terms and Conditions]

 

 

How to Contact Ark Transportation: By Mail: P.O. Box 81752, Cleveland, OH 44181. By Phone: Toll Free 800-536-6088 or International +1-440-891-0088. By Email: info@arktrans.com.

For more information about Ark, visit www.arktransportation.com

Import & Export Authorization for U.S. CUSTOMS

If applicable, Ark Transportation will be importing or exporting on behalf of your company. By clicking “Accept” to Ark Transportation’s TERMS and CONDITIONS, and digitally signing, the signing person, party or (“Firm”) hereby consents to Import & Export Authorization and constitutes and appoints Ark Transportation, Ltd. (Grantee), its successors or assigns, through their officers, employees, and/or specifically authorized agents specifically authorized to act for such corporation by limited power of attorney, as a true and lawful agent and attorney of the Grantor named above for and in the name, place and stead of said Grantor from this day and in all U.S. Customs and Border Protection (Customs) Districts and in no other name, whether as customs broker, forwarding agent or for any other related activity, to make, (either in writing, electronically, or by other authorized means) endorse, sign, file, declare, or swear to any entry, withdrawal, declaration, certificate, bill of lading, Electronic Export Information (EEI) via Automated Export System (AES”), manifest, carnet, importer security filing or any other document required by law, regulation or commercial practice in connection with the importation, transportation, or exportation of any merchandise shipped or consigned by or to Grantor; to perform any act or condition which may be required by law, regulation, or commercial practice in connection with such merchandise; to receive any merchandise deliverable to Grantor;

 

To make endorsement on bills of lading conferring authority to transfer title; to make entry and collect drawback; and to make, sign, declare or swear to any statement, supplemental statement, schedule, supplemental schedule, certificate of delivery, certificate of manufacture, certificate of manufacture and delivery, abstract of manufacturing records, declaration of proprietor on drawback entry, declaration of exporter on drawback entry, or any other affidavit or document which may be required by law or regulation for drawback purposes regardless of whether such sworn statement, schedule, certificate, abstract, declaration, or other affidavit or document is intended for filing in any Customs District;

 

To sign, seal and deliver for and as the act of Grantor any bond required by law or regulation in connection with entry or withdrawal of imported merchandise or merchandise exported with or without benefit of drawback, or in connection with entry, clearance, lading, unlading or navigation of any vessel or other means of conveyance owned or operated by Grantor, and any and all bonds which may be voluntarily given and accepted under applicable laws and regulations, consignee’s and owner’s declarations provided for in section 485, Tariff Act of 1930, as amended, or affidavits in connection with the entry of merchandise;

 

To sign and swear to any document and to perform any act that may be necessary or required by law or regulation in connection with the entering, clearing, lading, unlading, or operation of any vessel or other means of conveyance owned or operated by Grantor.

 

To issue powers of attorney on behalf of Grantor to other customs brokers or freight forwarders to transact Customs and/or freight forwarding business on behalf of Grantor; to receive, endorse and collect checks issued for customs duty refunds in Grantor’s name drawn on the Treasurer of the United States; if Grantor is a nonresident of the United States, to accept service of process on behalf of Grantor solely for the purpose of compliance with Customs limited power of attorney regulations (i.e., Part 141, Subpart C, 19 C.F.R.).

 

And generally to transact Customs business at the customhouses in any district, including, pursuant to grantor’s request, making, signing, and filing of protests under section 514 of the Tariff Act of 1930, in which Grantor is or may be concerned or interested and which may properly be transacted or performed by an agent and attorney, giving to said agent and attorney full power and authority to do anything whatever requisite and necessary to be done in the premises as fully as Grantor could do if present and acting, hereby ratifying and confirming all that the said agent and attorney shall lawfully do by virtue of these presents.

 

This limited power of attorney is to remain in full force and effect until the date revocation in writing is duly given by the Grantor and received by Grantee. If Grantor is a Partnership, said power shall in no case have any force or effect after the expiration of 5 years from the date of its execution.

 

This limited power of attorney shall be construed according to the laws of the State of Ohio, without giving consideration to principals of conflict of law. Grantor consents to the exclusive venue and jurisdiction of the U.S. District Court and the State courts of Ohio; agrees that any action relating to or arising from this limited power of attorney and/or the relationship between Grantor and Grantee that results from this limited power of attorney shall be brought only in said courts; consents to the exercise of in person and jurisdiction by said courts over it; and agrees that any action to enforce a judgment may be instituted in any jurisdiction.

 

If Grantor is a Principal Party in Interest (“PPI”) in an export transaction, then the Grantor/PPI hereby certifies that all statements and information contained in the documentation provided to Grantee relating to exportation are true and correct. Furthermore, Grantor/PPI understands that civil and criminal penalties may be imposed for making false or fraudulent statements or for the violation of any United States laws or regulation on exportation. If Grantor/PPI is a United States Principal Party in Interest (USPPI) (as defined in 15 C.F.R. § 30.1), Grantor/PPI undertakes to determine any export license requirements and to obtain, for export purposes, any export License or other official authorization. If Grantor/PPI is a Foreign Principal Party in Interest (FPPI) (as defined in 15 C.F.R. § 30.1), Grantor/PPI hereby certifies that it has not provided the USPPI, and will not provide the USPPI, a writing to assume responsibility for determining licensing requirements and/or obtaining licensing authority pursuant to 15 C.F.R. § 758.3. Grantor/PPI acknowledges that Grantee does not agree to act as the “exporter” for purposes of the U.S. Export Administration Regulations, and that in any routed export transaction for which Grantor/PPI is an FPPI, the USPPI to the transaction (or its U.S. agent) shall be responsible for determining licensing requirements and obtaining licensing authority pursuant to 15 C.F.R.

  • 758.3.

 

Grantor hereby grants Grantee authorization to share information generally considered confidential under 19 C.F.R. § 111.24 or any applicable laws, rules and regulations of countries other than the United States that govern the confidentiality of customs brokerage data, including but not limited to information concerning points of contact, addresses and telephone numbers, revenue and customs entry data, with corporations owned by or under common ownership with Grantor, with corporations owned and operated by Ark Transportation, LTD., Ohio, or with Grantee’s authorized service providers incidental to their provision of services.

 

If Grantor is a Partnership, signatory certifies that he/she has full authority to execute this instrument on behalf of Grantor and shall state the names of all general partners of the partnership on a separate addendum to this document.

 

METHOD OF PAYMENT ADVISORY STATEMENT: In accordance with 19 CFR 111.29, the following paragraph explains your rights regarding method of payment of Customs charges:

If you are the importer of record, payment to the broker will not relieve you of liability for Customs charges (duties, taxes, or other debts owed Customs) in the event the charges are not paid by the broker. Therefore, if you pay by check, Customs charges may be paid with a separate check payable to the “U.S. Customs and Border Protection,” which shall be delivered to Customs by the broker. If you elect to make payment with a check made payable to the U.S. Customs and Border Protection, Ark Transportation, Ltd. must be notified in advance.

 

CORPORATE CERTIFICATION: Grantor hereby attests that they are fully authorized to grant authority for and on behalf of said corporation by authority of its governing body as the same appears in a resolution of the Board of Directors and further certifies that the resolution is in accordance with the articles of incorporation and bylaws of said corporation.