Terms and Conditions

1.       Terms & Condition

Any and all Services performed are subject to the rules and regulations herein set forth. When any Services are duly executed between DG Packaging (USA) Inc. and an Owner, Shipper or Agent, the Terms and Conditions contained herein are incorporated into this by reference.

Any Goods tendered to DG Packaging (USA) Inc. will be handled subject to these Terms and Conditions.

2.       Definitions: Terms used in these standard Terms & Conditions have the following meanings:

(a)      “Company” shall mean DG Packaging (USA) Inc., related companies, agents and/or representatives acting on behalf of owner and/or shipper.

(b)      “Agent” shall mean DG Packaging (USA) Inc., related companies, agents and/or representatives acting on behalf of owner and/or shipper.

(c)      “Customer” shall mean the Company or person for which the Company is rendering service, as well as its principals, agents and /or representatives, including, but not limited to any shippers, freight forwarder, consolidator, property broker, customs broker, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, or other third party tendering shipments to the Company. Where any intermediary, other than the beneficial owner of the freight, tenders shipments to the Company it is the responsibility of the Customer to provide a copy(s) of these terms and conditions of service to all such agents, representatives or third parties;

(d)      “Shipper” means any and all entities tendering a consignment to the Company for the performance of services including entities physically tendering goods and entities on whose account or on whose behalf a service is to be performed.

(e)      “Owner” means the owner of the goods (including any packaging, containers or equipment) to which any business conducted under these Terms & Conditions of service relates and the consignee or any other person who is or may become interested in or in possession or entitled to possession of them.

(f)        Services” shall mean any business undertaken or any advice, information or services provided to the Customer by the Company including but not limited to the packaging, repackaging, marking, labelling, documentation and provision of packaging and to include those incidental or ancillary to these including but not limited to handling, palletizing, crating, packing, repacking, stuffing, storage or distribution, transportation, bulk-breaking and consolidation of goods;

(g)      “Dangerous Goods“, also variously known as hazardous material, hazmat or otherwise similarly identified shall mean commodities which are or should be identified, packaged, labelled, stored, handled or transported in accordance with the provisions set forth in the rules and regulations in:

(i)       Title 49 of the US Code of Federal Regulations (“CFR”), revisions thereto or reissues thereof.

(ii)      The “Dangerous Goods regulations” published by the International Air Transport Association (“IATA”), revisions thereto or reissues thereof.

(iii)     The International Civil Aviation Organization (“ICAO”) “Technical Instructions for the Safe Transport of Dangerous Goods by Air” published by ICAO, revisions thereto or reissues thereof.

(iv)     The “International Maritime Dangerous Goods (IMDG) code” published by the International Maritime Organization, revisions thereto or reissues thereof.

(v)      Additionally, any goods which are or may become of a noxious, dangerous, hazardous, inflammable, explosive or radio-active character liable to cause damage to any person, itself or property whatsoever whether prescribed by laws or otherwise;

(h)       “Goods” means any material goods (including any associated packaging, equipment, documentation or related articles) to which the Terms & Conditions of service applies.

(i)       “Limitation” means a limit per unit of gross weight of that part of the goods in respect of which a claim arises.

(j)       “Loss” includes (without limitation) loss (including theft), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery, unauthorized delivery, non-compliance with instructions or obligations, or incorrect advice or information.

(k)      “Officer” includes any officer, director, Company secretary, partner, shareholder or member of an LLC of the Company or the Customer.

(l)       “Subcontractor” means a party engaged at the behest of the Company to perform some or all of the Company’s obligations.

(m)     “Third Parties” shall include, but shall not be limited to, carriers, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise.

(n)      “Interested Party” means the Customer and/or anyone with an interest in the goods; any obligation of the interested party is borne jointly and severally.

(o)      “Person” includes persons or any body or bodies corporate.

(p)      “Documentation” shall mean all information received directly or indirectly from the shipper, owner and/or Customer, whether in paper or electronic format.

(q)      “Carrier” or “Carriers” shall mean any transport provider, independently owned and operated motor carriers and any other service providers into whose care, custody and control shipments shall be tendered by the Company.

3.       The Company’s obligations

(a)      The Company will provide its services with reasonable skill and care.

(b)      In the case of processing and/or storage, it starts when Goods are accepted and ends when they are tendered for collection, or the Company becomes aware of the grounds for their removal for reasons of safety or otherwise.

(c)      In the case of carriage, the Company’s responsibility for the Goods starts when loading on the vehicle is complete and ends when the goods are tendered for unloading.

(d)      In the case of forwarding, the Company’s responsibility is only to engage or propose apparently competent contractors and to give them adequate instructions in relation to the goods; and in this case, or where the contract is for advice, it is not responsible for the goods themselves.

(e)      The Company’s duty is to the Customer only and not to any third party. Any advice given is for the use of the Customer only.

(f)       Unless it states otherwise in writing, the Company acts as the “agent” of the Customer, Shipper or Owner for the purpose of performing duties and/or engaging contractors to deal with the goods or services in connection with any services on behalf of the Customer

4.       Customer’s undertakings & obligations

(a)      The Customer warrants that he is either the owner or the authorized agent of the owner and also that he has authority to accept these conditions not only for himself but also as agent for and on behalf of the owner.

(b)      The Customer or shipper will inform the Company of any relevant matters; including any special precautions necessitated by the nature, weight or condition of the goods and provide the Company with information concerning the goods which is accurate, complete and sufficient to allow the Company to comply with all laws and regulations concerning the packaging, documentation, marking and labeling, handling, storage and transporting of the goods. Depositor will indemnify and hold the Company harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which the Company may incur as a result of depositor failing to fully discharge this obligation.

(c)      Information given by or on behalf of the Customer or shipper shall be materially correct and complete.

(d)      In authorizing the Customer to enter into any contract with the Company and/or in accepting any document issued by the Company in connection with such contract, the owner irrevocably accepts these Terms & Conditions for themselves and their agents and for any parties on whose behalf they or their agents may act, and in particular but without prejudice to the generality of this clause, they accept that the Company shall have the right to enforce against them jointly and severally any liability of the Customer under these conditions or to recover from them any sums to be paid to the Company by the Customer which upon proper demand have not been paid.

(e)      In preparing and performing services the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by the Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect , incomplete or false statement by the Customer or its agent, representative or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to properly package, document, mark, label or otherwise handle the goods.

(f)       That the description and particulars of any goods furnished by or on behalf of the Customer are full and accurate.

(g)      Regarding all shipments tendered by any Customer or shipper as defined above, the Customer or shipper represents that it is either the owner of the goods or has the authority to enter into this agreement or to accept these conditions on the owner’s behalf.

(h)      The Customer will promptly, after receipt of invoice reimburse all duties, taxes and expenses that the Company may be required to pay in respect of the goods including where the liability to pay them arises due to the fault, other act or omission of the Company or its employees or sub-contractors.

(i)       The Customer shall notify in detail to the Company should any of the goods require any official consent or license to handle, possess, deal with or carry;

(j)       The Customer shall notify in detail to the Company should any of the goods be leaking, dispersing or otherwise escaping from their containers and may cause harm to human health, pollution of the environment or property or constitute waste.

(k)      The Customer acknowledges that it is required to review all documents and declarations prepared and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration produced on the Customers’ behalf;

5.       Packaging service general terms

(a)      As part of the packaging services, the Company shall procure packaging from manufacturers or vendors of packaging based on the specifications required to comply with mode of transport being employed as identified by the Customer or shipper such as CFR 49, IATA, IMDG or as otherwise identified by the Customer or shipper.

(b)      Manufacturers’ warranty. If any packaging furnished by the Company is subject to manufacturers’ warranties, the Company hereby assigns such warranties to Customer and its Customers to the extent permitted by applicable law and the terms of such warranties; provided that the Company shall have no obligation to seek consent to assignment from any such manufacturers.

(c)      Inspection/acceptance. Customer shall be responsible for inspection and acceptance of all articles packaged by the Company on their behalf or on behalf of their Customer or the shipper.

(d)      The Company has the discretion to accept or reject any order made by the Customer for the purchase of services. Any and all orders shall be subject to acceptance by the Company.

(e)      If the Customer fails to comply with any of its obligations under the agreement, the Company may cancel any accepted order in whole or in part by giving verbal or written notice to the Customer.

(f)       The Company may without liability open any package or other container which the goods are placed or carried to inspect the goods either to determine their nature or condition or to determine their ownership or destination.

(g)      When and to the extent that the Company in accordance with these conditions is acting as an agent on behalf of the Customer, it is acting in a customary manner. The Company shall be entitled, and the Customer hereby expressly authorizes the Company such entitlement, to enter into contracts on behalf of the Customer and the shipper and/or owner to do such acts as may in the opinion of the Company be reasonably necessary in the performance of its obligations in the interests of the Customer and the owner.

(h)      The Company is permitted to perform any of its obligations herein by itself or by a sub-contractor. For the purpose of allowing any such sub-contractor to take the benefit of these conditions, the Company acts as agent and trustee for such sub-contractor in entering into a contract governed by these conditions with the Customer and owner.

(i)       The offer and acceptance of an inclusive price for the accomplishment of any service or services shall not itself determine whether any such service is or services are to be arranged by the Company acting as agent or to be provided by the Company acting as a contracting principal.

6.       No liability for the selection or services of third parties and/or routes.

The Company shall use reasonable care in its selection of third parties and/or in selecting the means and procedures to be followed in the provision of services including but not limited to packaging, documentation, marking, labelling, handling and transportation; advice by the Company that a particular person or firm has been selected to render services shall not be construed to mean that the Company warrants or represents that such person or firm will render such services. The Company does not assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents.

7.       Disclaimer and limitation of liabilities.

(a)      The Company will exercise such care in regards to the Customer’s goods as a reasonably careful person would exercise under like circumstances, and is not liable for loss or injury to Customer’s goods which could not have been avoided by the exercise of such care. 

(b)      To the fullest extent permitted by law, the services provided by the Company are “as is” and the Company makes no warranties, representations, conditions, or guarantees of any kind, either express, implied, statutory, or otherwise, oral or written, with respect to the services or packaging furnished in connection with the agreement. The Company shall not be liable for any failure of the packaging to meet the specifications or any loss or damage arising from or related to use of the packaging

(c)      Except as may otherwise be prohibited by law, we shall not liable to the shipper or to any other person for any mis-delivery, missed pickup, non-delivery, delay, damage or loss of whatever nature arising out of or in connection with the shipment or other services performed by us, unless such damage is proven to have been caused by our negligence and there has been no contributory negligence on the part of the shipper, consignee or another claimant.

(d)      Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within 7 days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.

(e)      The Company shall not be responsible for concealed damage. No claim for loss or damage will be processed until all charges have been paid. Claims cannot be deducted from charges. Claims must be submitted in writing to the Company

(f)       All suits against Company must be filed and properly served on Company within 1 year from the date of the loss or damage save for any customs actions which are required within 7 days.

(g)      The Company shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of the third party; all claims in connection with the act of a third party shall be brought solely against such party and/or its agents; in connection with any claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.

(h)      Except under special arrangements previously made in writing the Company accepts no responsibility for completion of services within a specific time frame or on or by a defined date.

(i)       Customer declares that damages caused as a result of loss or injury to Customer’s goods for which the Company is responsible will be limited to $50.00 for any shipment of 100 lbs or less; and $0.50 (fifty cents) per pound for any shipment greater than 100 lbs.

(j)       In addition, Customer agrees that such liability shall be limited to five hundred dollars ($500) per occurrence. Customer agrees to and does hereby waive all right of subrogation by and on behalf of its insurers for damages exceeding the amounts stated above.

(k)      If only individual packages or parts of the consignment were damaged or lost, the maximum liability is calculated on the basis of the gross weight of the whole consignment if it is rendered valueless of that part of the consignment that is rendered valueless

(l)       In no event shall the Company, its directors, officers, agents or third parties be liable or responsible for consequential, indirect, incidental, special, statutory or punitive damages, even if it has been put on notice of the possibility of such damages.

(m)     Each exclusion or limitation in these conditions exists separately and cumulatively.

8.       Burden of proof

(a)      The Customer must provide evidence that goods of a specified quantity and state were handed to the Company in apparent good order.

(b)      Signature on a delivery note is evidence that the goods have been received in apparently good order save as noted.

(c)      Receipt by the Customer or owner of visibly damaged goods without complaint shall invalidate any claim against the Company.

(d)      If the recipient accepts your shipment without noting any damage on the delivery receipt, delivery manifest, or other delivery document, it will be presumed that the package was delivered in good order and condition and any loss or damage reported thereafter shall be considered concealed damage. All claims for concealed damage must be reported to us within seventy-two (72) hours from the date of delivery and a written claim must be filed within 15 days from the date of delivery, otherwise your claim will be declined. In order for us to process your claim, you must make the contents, original shipping cartons and packing available for inspection.

9.       Indemnification/hold harmless.

(a)      Customer shall indemnify, defend and hold the Company its affiliated companies, their officers, directors, employees, agents, and their successors and assigns, harmless from and against any and all claims, demands, actions, causes of action, losses, judgments and damages and/or liability, fines, penalties and/or attorneys’ fees, brought or alleged by a third party, and any and all costs or expense relating thereto (including but not limited to attorney’s fees, court costs and costs of settlement), and all costs incurred by the Company to respond to inquiries or requests and demands pertaining to Customer, its goods and/or its conduct arising as a result of any actual or asserted violation of any federal, state and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.

(b)      The Customer will indemnify the Company, its affiliated companies, their officers, directors, employees, agents, and their successors and assigns, from all claims, demands, expenses (including reasonable attorneys’ and consultants’ fees), liabilities, causes of action, enforcement procedures, and suits of any kind or nature and against any loss or damage arising out of the Company’s action in accordance with the Customer’s instructions or arising from the negligence of the Customer, and will pay all costs and expenses (including attorney’s fees) incurred in, and the Company’s reasonable charges for, dealing with the breach and its consequences.

(c)      The Customer will pay an extra charge equal to the amount of any fine or penalty payable by the Company, its affiliated companies, their officers, directors, employees, agents, and their successors and assigns, wholly or partly as a result of a breach by the Customer. If the Company suspects a breach it may refuse to accept the goods, demand their immediate removal, or itself arrange their removal without notice, at the Customer’s expense.

(d)      The shipper and the consignee shall be liable, jointly and severally, to pay or indemnify the Company for all claims, fines, penalties, damages, attorney’s fees, court costs and fees, other costs and sums which may be incurred, suffered or disbursed by the Company by reason of any violation of any of the rules and or any other default of the shipper or consignee with respect to a consignment.

(e)      Customer’s indemnification obligations in this section shall survive the termination or expiration of the agreement or business relationship.

(f)       Each exclusion or limitation in these conditions exists separately and cumulatively.

10.     Dangerous Goods

(a)      If the Customer is unsure and unable to ascertain the condition or contents such that the Company is unaware of or unable to ascertain the nature of the Dangerous Goods or the necessary precautions to be taken or if, at any time, the Dangerous Goods are deemed to be hazardous to life or property, they may at any place be unloaded, destroyed, rendered harmless or otherwise dealt with, as circumstances may require, at the sole discretion of the Company or any other person in whose custody they may be at the relevant time, without notice or compensation to the Customer. In such an event, the Customer shall indemnify the Company against any and all loss, damage, liability or expense arising therefrom.

(b)      Emergency contact information. Customer shall supply the Company with all necessary emergency contact and response information and documentation such as shipping papers associated with Customer’s Dangerous Goods, and Customer shall have the sole responsibility to address any inquiry directed to such contact and prepare any reports or forms associated with such inquiry.

(c)      If Customer is in physical possession of the Dangerous Goods when a reportable incident or release occurs, Customer shall have sole responsibility for providing required notification(s) to third parties, including government authorities.

(d)      The Company may provide services to include but not limited to, packing, marking, labeling, and documenting Dangerous Goods. Customer warrants and represents that any packaging that it states does not require repackaging purposes of storing or transporting Dangerous Goods satisfies prescribed specification and testing requirements. The Company’s preparation of or signature on documentation such as shipping papers shall be based on the Company’s reliance on information that Customer has provided to the Company, and the Company shall do so as the express authorized agent of Customer for that purpose. The Company shall not be responsible for determining the accuracy of any of Customer’s information.

(e)      It is the responsibility of the person offering a hazardous material for transportation to ensure that such packaging, markings, labelling and documentation are compatible with their lading, notwithstanding any suggestions or recommendations which seller or any other manufacturer of products advertised herein may have offered.

11.     Quotations not binding.

Quotations as to fees, packing charges, handling charges, transport charges or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to provide services at a specific rate or amount set forth in a written quotation and payment arrangements are agreed to between the Company and the Customer.

12.     Invoicing and settlement of charges due

(a)      Customer agrees to pay the Company for services provided pursuant to the rates that may be agreed upon from time to time.

(b)      If Customer requests that the Company perform additional services not specifically identified in the schedule of rates, the parties shall mutually agree in writing upon the charges to be paid and applicable terms and conditions with respect to the performance of such services. The Company shall have no obligation to perform any additional services until both parties have agreed upon any additional charges or fees.

(c)      any disputed billing must be brought to the attention of the Company within thirty (30) calendar days after Customer’s receipt of invoice; any portion of the billing not in dispute remains due and payable within thirty (30) days after Customer’s receipt of invoice.

(d)      claims for overcharges, refunds or duplicate payments must be made in writing within 90 days from the date services have been performed otherwise such claims shall be deemed waived by you. All overcharge claims, along with any and all supporting documentation, shall be filed in writing.

(e)      You shall not have any right to offset or deduct unpaid charges due to the Company against unpaid claims for loss or damages, claims for overcharges, or any other claims asserted against the Company. The Company is under no obligation to act on any claim until all charges are paid in full.

(f)       The prices set forth are prior to any sales, use or similar taxes. To the extent any such taxes are applicable, such taxes will be added to the invoice as a separate charge and will be paid by the Customer.

(g)      If the Customer fails to make timely payment of the legitimate charges billed, then, in addition to any other right the Company may have, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees. The Customer shall pay a late payment charge at the rate of 2.5% (two and one-half percent) per month or the highest rate allowed by applicable law, whichever is higher, on the amount outstanding and unpaid, including any disputed amounts that later are agreed, or determined, to be owed by the Customer. Such late payment charge shall be calculated from the date that such unpaid charges become due and shall be compounded monthly for the period during which any such charges remain unpaid unless a lower amount is agreed to by the Company.

13.     General lien and right to sell Customer’s property.

(a)      The Company shall have a general and continuing lien on any and all property of the Customer coming into Company’s actual or constructive possession or control for all lawful charges with regard to the shipment on which the lien is claimed, any prior shipment(s) and /or both; for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, and other charges and expenses in relation to such goods, and for the balance on any other accounts that may be due. In order to protect its lien, the Company reserves the right to require advance payment of all charges prior to release of goods.

(b)      Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.

(c)      Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.

14.     Severability.

If one or more provisions or any paragraph(s) and/or portion(s) shall be held to be invalid, illegal, or unenforceable, then the validity, legality, and enforceability of the remaining shall remain in full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.

15.     No modification or amendment unless written.

(a)      No employee, agent, or representative of the Company has the authority to add, alter, modify, or waive any provision of these standard Terms & Conditions

(b)      These Terms & Conditions of service may only be modified, altered or amended in writing signed by an officer of the Company and signed by both the Customer and the Company; any attempt to unilaterally modify, alter or amend same shall be null and void.

(c)      Incorporation of terms and future changes.

(d)      The Company reserves the right to unilaterally modify or amend any portion of the Terms & Conditions of service at any time without prior notice. Any failure to enforce or apply a term or provision of the Terms & Conditions of service shall not constitute a waiver of that term or provision by the Company and shall not diminish or impair the Company’s right to enforce such term or provision in the future.

(e)      The rights and obligations of the agreement, which by their nature are intended to survive expiration or termination of the agreement will survive such expiration or termination.

(f)       The version of these standard Terms & Conditions in effect as of the date of handling of any order or goods shall be the applicable version.

16.     Governing law; consent to jurisdiction and venue.

(a)      These Terms & Conditions of service and the relationship of the parties shall be constructed according to the laws of the state of Delaware without giving consideration to principles of conflict of law.

17.     Customer and Company agreements

(a)      Irrevocably consent to the jurisdiction of the united states district court and the state courts of Delaware

(b)      Agree that any action relating to the services performed by Company, shall only be brought in said courts;

(c)      Consent to the exercise of the in personam jurisdiction by said courts over it, and

(d)      Further agree that any action to enforce a judgment may be instituted in any jurisdiction.