Passport Global’s General Terms & Conditions of Logistics Services

Last modified: 14 March 2024

PASSPORT PROVIDES THE SERVICES SOLELY SUBJECT TO THESE TERMS AND AND CONDITIONS AND SOLELY ON THE CONDITION THAT COMPANY ACCEPTS AND COMPLIES WITH THEM. BY CREATING AN ACCOUNT AND REQUESTING PASSPORT’S SERVICES, YOU (A) ACCEPT THESE TERMS AND AGREE THAT COMPANY IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF COMPANY IS A CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF COMPANY AND BIND COMPANY TO ITS TERMS.

1.   Applicability.

1.1   These general terms and conditions of logistics services (these “Terms”) shall apply to any business to consumer shipping, carriage, freight forwarding, warehousing, distribution and other logistic services (“Services”) provided by Passport Global, Inc., a Delaware corporation, with its principal place of business at 3790 El Camino Real, #854, Palo Alto, CA 94306, USA (“Passport”) to the entity or individual (“Company” and together with Passport, the “Parties”) identified above or in an Order Confirmation, as defined below.

1.2   These Terms (including Passport’s Privacy Policy and all exhibits attached hereto and all documents or terms incorporated herein or therein by reference) together with any Order Confirmation, and any bill of lading, shipment receipt, air waybill or other contract of carriage comprise the entire agreement between the Parties (collectively, the “Agreement”) and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. By accessing or using the Services, or any portion thereof in any manner, you acknowledge that you have read, understand, and agree to be bound by the terms of the Agreement (as defined above). In the event of any conflict or inconsistency between these Terms, an exhibit attached hereto, an Order Confirmation or any other documents comprising the Agreement, the Order Confirmation shall prevail, followed by all exhibits attached hereto (with respect to the subject matter contained therein), followed by these Terms, and, lastly, any other document incorporated by reference or comprising the Agreement. 

1.3   In the event a Service Request (as defined below), an order or any other document provided by Company to Passport related to the Services includes terms and conditions which attempt to modify, supersede, supplement or otherwise alter the Agreement, or any other terms and conditions are otherwise provided to Passport, such terms and conditions are expressly rejected and replaced by these Terms unless such alternative terms and conditions are agreed in writing and signed by the Parties. 

2.   Ordering Services.

2.1   Onboarding. In order to facilitate requesting Services, Company and Passport may agree to onboard access to the Services via Company’s enterprise resource planning systems (“ERP”). Company shall be solely responsible for the use of the ERP, including any customization, integration or integrations to, on or with such ERP. Company may also access the Services via third party marketplaces that allow access to Passport Services (a “Marketplace”). Company shall comply with all Marketplace terms and conditions of use. For the avoidance of doubt, in no event shall any onboarding or integration to an ERP, customer support services, or access to, or use of, a Marketplace be deemed a Service for purposes contained herein. 

2.2   Service Requests. To request Services, Company shall submit a service request to Passport via the ERP, a Marketplace or as otherwise agreed to by Passport (“Service Request”). By submitting a Service Request, Company confirms and reinstates its acceptance of these Terms. Passport has the right to reject any Service Request. A Service Request shall only be deemed accepted by Passport if Passport delivers a written acceptance, confirmation, or invoice to Company or picks up the goods requested to be shipped under a Service Request (the “Products”); provided, however, in each case, the terms of the Service Request shall only be deemed accepted with respect to the following specific terms (“Basic Terms”): (a) the Services ordered; (b) the list of the Products to be shipped; (c) the quantity of each of the Products to be shipped; (d) the address where Company requests that Passport take possession of the Products (“Pick-up Location”); (e) the billing address; (f) the address where Company requests that Passport delivers possession of the Products (“Delivery Location”); (g) order number, and (h) shipping terms. In addition to the foregoing, each Service Request must include the Products’ retail value (in US dollars), Harmonized System (HS) code, country of origin, and a complete and full item description. Each Product in a bundle, kit, or subscription box must be included as a single line item in the Service Request and include an associated retail value, HS code, and Country of Origin (COO). All Service Requests hereunder shall be limited to 35 Products (line items) per shipment with a retail cost not to exceed $2,500 per shipment.

2.3   Order Confirmations. For purposes of these Terms, an “Order Confirmation” means (a) Passport’s written acceptance, confirmation or invoice; or (b) if a Service Request is accepted by picking up the goods requested to be shipped under a Service Request, the Service Request; in each case, limited to the Basic Terms. Passport reserves the right in its sole discretion to modify or cancel any Order Confirmation or order for Services at any time, regardless of its acceptance of the Service Request. Any time quoted by Passport for pick-up and delivery is an estimate only and does not constitute a guarantee or warranty by Passport.

3.   Services.

3.1   Use of Services. The Services provided by Passport to Company are intended for Products shipped in business to consumer channels only.  Company shall ensure that Products shipped using the Services are for the consumer’s personal use and not for resale, redistribution, trade, or the like.  Company shall inform consumers that Services are being provided by Passport and make the terms and conditions of Passport’s Services available to consumers.  Passport reserves the right to refuse to provide, or discontinue providing, Services if the Products: (i) do not comply with Laws in any country to, from, through, or over which a Shipment may be carried; (ii) violate a Service Provider’s terms and conditions; or (iii) pose a risk to the security or safety of Passport or Service Provider personnel.

3.2   Transportation Services.  In the event, and to the extent, part of the Services requested and set forth in an Order Confirmation are transportation services, including, but not limited to, the collection, loading, carriage, customs clearance, unloading, and/or delivery of Products (“Transportation Services”), each shipment of Products to be made thereunder (“Shipment”) shall be evidenced by a bill of lading, a shipment receipt, manifest or other form of freight receipt or contract (each, a “Bill of Lading”), in the form specified by Passport. Company authorizes Passport to update, edit, or modify all Shipment and commercial invoice details to facilitate customs clearance and/or comply with the laws and regulations of the origin or destination country. For European Union (EU) centralized customs clearance, Company is required to provide to Passport its Import One-Stop Shop (IOSS) ID.  In the event that Company does not have a IOSS ID, Company authorizes Passport to act as the nominal owner of the goods and to clear shipments on Passport’s IOSS ID in accordance with the Passport Seller of Record Sales and Delivery Agreement and Terms of Service. Further, Company authorizes Passport to act as Seller of Record in any market and in any event where such arrangement is necessary to comply with, expedite, or complete customs clearance services and/or to comply with indirect tax regulations. Company is responsible for determining and monitoring whether it is required to register for, and remit, any goods and services taxes (GST), value added taxes (VAT), sales taxes or any similar taxes in any jurisdiction, including for all sales made by Company in respect of which Passport may provide its services. By submitting a Service Request, Company acknowledges and agrees that: (i) Passport is not responsible for notifying Company of Company’s obligations in relation GST, VAT, sales tax and any other similar tax; (ii) Passport will not remit any such taxes on behalf of Company unless specifically contracted to do so under Passport’s Seller of Record program; and (iii) Passport will have no liability to Company for any liability or loss regarding the same. All Transportation Services and transit times are an estimate only and not a guarantee of service. Passport shall not be liable for loss, damage, or delay which results: (a) from the act or omission of Company, shipper, consignee or recipient; (b) from inaccurate weight or dimensions for Products and Packages provided by Company; (c) if the Products are stopped and held in transit on the request of Company, the shipper, customers or tax or other governmental authorities, or other party entitled to make such request; (d) from faulty, impassable or inaccessible highway, waterway or port or from lack of capacity thereof; (e) from a defect in the Products; (f) after delivery; or (g) if the consignee or recipient, refuses the shipment tendered for delivery, any part thereof or any Products contained therein. In the event consignee or recipient refuses the shipment tendered for delivery, any part thereof or any Products contained therein, Company shall be responsible for any and all of Passport’s losses, damages, costs and expenses resulting therefrom, including, without limitation, storage or return costs which shall be due on demand. In such case, if Passport does not receive disposition instructions within ten (10) days (or a shorter period of time, as noted in the notice, if the Products are perishable) of Passport’s notice to Company of consignee’s or recipient’s failure to accept delivery, Passport may offer the Products for sale at a public auction or private sale, and, after reimbursing itself for its costs and paying any Company invoices from the sale proceeds, Passport will remit the balance to Company. In the event that a Shipment cannot be delivered due to inaccurate delivery instructions, description of the Products to be shipped (including Product dimensions and/or weight), or any special handling requirements, Passport may abandon the Shipment without any liability to Company or recipient and such Products shall be sent to an abandonment center and destroyed. Company shall notify Passport, and Passport will not be required to carry or be liable in any way unless so acknowledged in writing by Passport, for any documents, coin money, or articles of extraordinary value not specifically rated in the published classification or tariffs. Unless the Services in the Order Confirmation specifically state Passport shall provide Transportation Services, Passport assumes no liability as a carrier and Company agrees and will not hold Passport responsible for any loss, damage, expense or delay related to the transportation, carriage or sale of any Products.

3.3   Freight Forwarding Services. In the event, and to the extent, part of the Services requested and set forth in an Order Confirmation are freight forwarding services, Passport’s responsibility under the Agreement for such Services shall be limited to arranging with third-party carriers for the transport and carriage of the Products. Passport is authorized by Company to select and engage, and will undertake to use reasonable care in the selection of, carriers, transporters, handlers, agents, truckmen, lightermen, forwarders, customs brokers, agents, warehousemen and other third party service providers (the “Transportation Providers”), as required by Company as part of the Services. Company agrees that Passport shall not be liable for loss, damage or delay in the transportation of the Products or related to the services provided by such Transportation Provider, except for any loss, damage or delay caused by the grossly negligent acts or omissions of Passport in the performance of the Services. The Agreement is entered into pursuant to 49 U.S.C. § 14101(b)(1). Passport and Company expressly waive any and all rights and remedies that each may have under 49 U.S.C. § 13101 through § 14914 that are contrary to the specific provisions of the Agreement. Company agrees that Passport is authorized to select the means, route and procedure to be followed in the handling, transportation and delivery of the Products, unless Company provides Passport with written instructions prior to Passport’s selection of such means, route and procedure for handling, transportation and delivery of the Products.  Advice, suggestion or selection by Passport to Company relative to a particular Transportation Provider is not, and will not be construed by Company to be, a warranty or representation issued by Passport that such Transportation Provider will render their services subject to any warranty and Passport shall not be responsible for such Transportation Provider’s services.  All terms of delivery shall be based upon INCOTERMS® 2020 unless otherwise specifically noted. For each shipment, Company shall be responsible to Passport for providing accurate delivery instructions, description of the Products to be shipped, and any special handling requirements within the time requested by Passport.

3.4   Warehousing Services.  In the event, and to the extent, part of the Services requested and set forth in an Order Confirmation are warehousing and storage services, Passport will agree to store the Products on a limited, temporary basis and, unless otherwise provided in the Agreement, will conduct such Services pursuant to Article 7 of the Uniform Commercial Code. Notwithstanding the terms of the Service Request, Passport may also need to store Products based on the circumstances.  During any time while Passport stores or warehouses any Products, Passport’s standard of care shall be that of a reasonably careful person under similar circumstances. Company agrees that such standard of care will be met if Passport uses those methods of handling and storing that it uses for its customers generally. All Products will be for general merchandise storage only and Passport will not be liable for any loss, deterioration, damage, or destruction resulting from any cause during the temporary storage.  Where loss or damage occurs to tendered, stored or handled Products, for which Passport is not liable, Company will be responsible for the cost of storing, handling, removing and disposing of such Products and the cost of any environmental cleanup and site remediation resulting from the loss or damage to Company’s Products.  Company shall provide Passport twenty-four (24) hours’ advance written instructions (each, a “Release Order”) if it desires to order any Products released. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Passport shall release the requested Products to Company or its designee upon return of the warehouse receipt or receipts issued for the applicable Products, together with the applicable Release Order, signed by Company. Company shall give Passport a reasonable time after Passport’s receipt of Company’s written instructions to carry out Company’s instructions to release the Products to Company or its designee. Passport may without liability rely on any information contained in any Release Order or other communication from Company.

3.5   Resale Services. In the event, and to the extent, part of the Services requested and set forth in an Order Confirmation are for the purchase, resale and delivery of Products or any other distribution services requiring Passport to take title to Products (“Resale Services”), the terms attached hereto as an Exhibit shall apply.

3.6   Returns. Company agrees that Services for the return of Products may not be ordered by Company. Notwithstanding the foregoing sentence, and regardless of the Services requested in the Service Request, Company may provide, in its discretion, certain Services with respect to Product returns, including returns resulting from recipient or consignee’s failure to accept or take delivery, failure to deliver or for any other reason. Company agrees that in certain cases, Passport or its designee may not import Products to the shipper, in which cases such Products shall be sent to an abandonment center and destroyed. Company shall be solely responsible for the cost of such return Services. 

3.7   Service Providers. Company acknowledges and agrees that Passport may engage third-party service providers (“Service Providers”) to perform certain services in connection with the Services, such as, but not limited to, Processors, Transportation Providers, Marketplace providers, and other third party service providers. Such Service Providers may have their own terms and conditions, and Company is responsible for compliance therewith. Use of such Service Providers shall be at Company’s sole risk and Passport shall have no responsibility therefor.

4.   Risk of Loss. Passport shall in no event bear any risk of loss of and damage to or theft of the Products while the Products are not in Passport’s care, custody or control.

5.   Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement. Passport may subcontract all or any part of the Services to any third parties without notice to Company.

6.   Company Responsibilities. Company agrees and warrants that it shall properly pack and mark all Products to be stored, shipped, handled or otherwise provided to Passport or Passport’s designee, and, for any Shipments, provide any documentation requested by Passport, including documentation showing the purchase order number, Company or manufacturer’s name and address, the quantity (including weight, volume, and the number of units, cartons or pallets), country of origin, and the recipient’s or consignee’s name. Company shall comply with all federal (United States or any other nation), state, and local government requirements, laws, ordinances, regulations and government orders (“Laws”) pertaining to the Products, Shipments and Services. Company shall be responsible for ensuring that no Products are prohibited from import into the destination country or are restricted from import without a license, certificate, permit, or other documentation to allow the release of the products from customs. In the event a Shipment cannot be exported from the origin country or imported into the destination country because a Product is restricted or prohibited, Passport shall be entitled to charge a processing fee and the cost for a return shipment and may withhold such processing fee and costs from any refund to Company. Company shall be responsible for ensuring that all necessary documentation is provided and accurately completed in compliance with Laws, including but not limited to customs laws, import and export laws and government regulations of any country to, from, through or over which a Shipment may be carried. In the event of any failure to provide and/or complete accurately all such documentation, Passport will assume no liability to the Company or any other person for any loss, expense, or delay due to the Company’s failure to comply with this provision. When Shipments are held by customs or other agencies due to incorrect or missing documentation, Passport may first attempt to notify the recipient. If local law requires the correct information or documentation to be submitted by the recipient and the recipient fails to do so within a reasonable time as Passport may determine, the Shipment may be considered undeliverable. If the recipient fails to supply the required information or documentation and local law allows the Company to provide the same, Passport may attempt to notify the Company. If the Company also fails to provide the information or documentation within a reasonable time as Passport may determine, the Shipment will be considered undeliverable. Passport assumes no responsibility for its inability to complete a delivery due to incorrect or missing documentation, whether or not it attempts to notify the recipient or Company. Passport shall be entitled to charge an administrative fee for obtaining corrective or complete information. Passport may require that Company be a known shipper (as governed by the Transportation Security Administration regulations), in which case, Company shall have obtained and shall maintain such known shipper qualification and status. Passport shall not be responsible for any liabilities, fines, or penalties resulting from Company’s failure to comply with the legal or regulatory requirements of any governmental agency or with a notification issued to Company by any governmental agency. Company will not request Services that would require Passport or any of its representatives, subcontractors, or others to violate any Law. Company warrants that it has ownership or lawful possession of the Products and all right and authority to deliver, tender, encumber and otherwise subject the Products to the terms of the Agreement. Passport may refuse to accept or return (at Company’s sole cost and expense) any Products if the Products tendered (a) do not conform to the terms of the Agreement; (b) infringe (or allegedly infringe) any intellectual property rights; or (c) do not comply with applicable Law. Company shall allow access, and Passport has the right at all times, but not the obligation, to inspect all Products and Shipments. Passport is not in the business of transporting, storing or arranging for transportation or storage of hazardous materials (as defined in 49 CFR §172 et seq.), and Company acknowledges that Passport’s acceptance of any hazardous materials is unintended. Company shall notify Passport immediately if any such Products contain hazardous materials. 

7.   Fees.

7.1   Fees. Company agrees to pay Passport the following fees (“Fees”) for its Services: (a) Passport’s standard rates then currently in effect unless specific rates have been provided by Passport to Company in writing, in which case, those provided by Passport will apply to the extent set forth therein; (b) any duties, tariffs, charges, postage, taxes, fuel surcharges, inspection fees, clearance fees, disposition fees, customs broker fees, carrier fees, third party brokerage fees, or other government-imposed fees related to the Services or the Products; and (c) any indirect taxes (VAT, GST, etc.) chargeable at the rate applicable to the Services. Passport may adjust declared amounts on Company’s behalf in the event of under-declarations, items sold at sale prices, or items sold at promotional or free of cost, as well as reclassify products in the event of a misclassification; any of which may alter the duties and taxes applied. Passport reserves the right to assess extra charges for customs clearance or for services ancillary to customs clearance of Shipments. The exact amount of the Fees is contingent upon Company providing accurate information when requesting Passport’s Services and the final Fees may increase if there are additional costs due to invalid or inaccurate information provided by the Company. Passport shall issue invoices to Company for all Fees in accordance with Passport’s rate sheet or agreed upon written terms of payment with Company. In the absence of separate written terms of payment, all invoices shall be payable within 7 days of presentation. Fees are an estimate until an invoice is sent to Company.  Additional invoices may be sent if there are additional Fees due to inaccurate or invalid information provided by Company.  All late payments may bear interest at the lesser of (i) the rate of 2% per month and (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly at Passport’s sole discretion. Unless otherwise noted by Passport or agreed to by the Parties, all payments made to Passport hereunder shall be made in US Dollars. 

7.2   Third Party Payment Processors. Company acknowledges and agrees that Passport may make available to the Company the use of third party payment processors (“Processor”) for payment of the Fees. Processors may have their own terms and conditions, and Company is responsible for and agrees to review and comply therewith. Use of Processors shall be at Company’s sole risk. 

7.3   No Set-Off. Notwithstanding anything to the contrary in the Agreement, and without prejudice to any other right or remedy it has or may have, Passport may, without prior notice to Company, set off or recoup any liability it owes to Company against any liability for which Passport determines Company is liable to Passport, whether either liability is matured or unmatured, is liquidated or unliquidated, or arises under this Agreement. 

8.   License. Company hereby grants to Passport and its subcontracts a non-exclusive, non-transferable, and non-sublicensable license to use Company’s trademarks to the extent required to perform the Services or for promotional purposes.

9.   Limited Warranty. Passport warrants to Company that it shall perform the Services in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services, subject to the terms of the Agreement. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, PASSPORT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SERVICES, ANY ONBOARDING, CUSTOMIZATION OR INTEGRATION OF OR TO AN ERP BY PASSPORT, ANY PASSPORT CUSTOMER SUPPORT SERVICES, OR ANY MARKETPLACE, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER IMPLIED, STATUTORY, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. COMPANY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY PASSPORT, OR ANY OTHER PERSON ON PASSPORT’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.

10.   Presenting Claims. Company’s sole and exclusive remedy for Passport’s breach of the limited warranty contained in Section 9 is Passport’s refund of the Fees paid by Company in connection with such Services, provided Company is required to file in writing with Passport any claims for loss, damage or otherwise within seven (7) calendar days from the earlier of (a) the delivery date; (b) in the event of non-delivery, the scheduled delivery date; (c) learning of the events that give rise to the claim; or (d) the provision of any Services. Failure to provide Passport with such notice will constitute Company’s acceptance of the Services, including, if applicable, delivery of the Products in a condition satisfactory to Company. Passport shall not be liable if a claim is not filed or a suit is not instituted thereon in accordance with this Section 10. Passport’s aggregate liability for any Service Request shall not exceed the Fees set forth in Section 7.1(a) paid to Passport with respect to such Service Request. THIS SECTION 10 SETS FORTH COMPANY’S SOLE REMEDY AND PASSPORT’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9 AND ANY OTHER BREACH BY PASSPORT OF THE AGREEMENT. 

11.   Insurance. Company acknowledges that Passport will not purchase or maintain insurance for loss or damage to the Products, regardless of whether such loss or damage is caused or allegedly caused by Passport, by Company, by third parties, by an act of God, by any other event or otherwise. If and to the extent Company wishes for the Products to be insured against loss or damage, Company shall have the sole responsibility to purchase such insurance at Company’s expense. One insurance option that may be available to Company is XCover.com’s Total Shipping Protection, which Company may be able to purchase. Company acknowledges that, if it chooses to purchase XCover.com’s Total Shipping Protection, that purchase will be made solely by Company and that Passport is not providing any insurance services whatsoever. Passport is not an insurer, insurance broker or agent, or a provider of any other insurance services. PASSPORT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE AVAILABILITY, COST, POLICY TERMS, AMOUNTS OR LIMITS, OR THE OUTCOME OF ANY CLAIM THAT MAY BE MADE UNDER XCover.com’s Total Shipping Protection. COMPANY AGREES THAT IN NO EVENT SHALL PASSPORT BE LIABLE FOR ANY LOSS, DAMAGE, CLAIM, OR EXPENSE ARISING OUT OF OR RELATING TO XCover.com’s Total Shipping Protection, UNDER ANY LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE). Company is not required to purchase XCover.com’s Total Shipping Protection. All aspects of the purchase of insurance, including but not limited to the decision of whether to purchase any insurance at all, remain the sole responsibility and discretion of Company.

12.   Indemnification. Company shall indemnify, defend and hold harmless Passport and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out of or resulting from (a) the Products, including the import, export, transportation or warehousing of the Products,  any claims under 19 U.S.C. 1337, and any amounts payable to any customs, tax or other governmental authority as a result of an audit or valuation; (b) Company’s performance (or failure to perform) under the Agreement, including any claim of a third party or Indemnified Party arising out of or occurring in connection therewith as well as any failure to provide accurate information to Passport in the Service Request or otherwise; (c) Company’s failure to comply with applicable Law; (d) Company’s negligent or more culpable act or omission; (e) any bodily injury, death or damage to real or tangible personal property caused by Company’s act or omission; and (f) failure to notify Passport of any shipments containing hazardous materials, and (g) Company’s, shippers, recipient’s and consignee’s acts or omissions.  In the event that a third-party or any governmental agency makes a claim or institutes legal action against Passport for freight, duties, fines, penalties, liquidated damages or other money due arising from the shipment of the Products, Company agrees to indemnify and hold Passport harmless from any amount Passport may be required to pay such third-party or governmental agency together with reasonable expenses, including, but not limited to, attorneys’ fees, incurred by Passport in connection with defending such claim or legal action, and obtaining reimbursement from Company.  The confiscation or detention of the Products by any governmental authority shall not impact or diminish the liability of Company to Passport to pay all charges or other money due promptly on demand. Company shall not enter into any settlement without Indemnified Party’s prior written consent.

13.   Limitation of Liability.  COMPANY AGREES THAT IN NO EVENT IS PASSPORT LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PASSPORT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO PASSPORT UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

14.   General Lien on Property.  Company grants Passport a security interest in, and Passport will have a lien on, any and all Products and other property (and documents relating thereto) of Company, in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by Passport in connection with any shipments for Company, and if any claim remains unsatisfied for thirty (30) days after demand for its payment, Passport may sell at public auction or private sale, upon ten (10) days’ written notice to Company, the property, as may be necessary to satisfy such lien, and apply the net proceeds of sale to the payment of the amount due to Passport.  Any surplus of proceeds from such sale shall be transmitted to Company, and Company will remain liable for any deficiency after application of the proceeds of such sale.  

15.   Term and Termination.  The Agreement shall be effective until terminated in accordance with this Section 15. In addition to any remedies set forth in these Terms, Passport may terminate the Agreement or any Order Confirmation (or part thereof) with immediate effect upon written notice to Company if Company fails to pay any amount when due under the Agreement or if Company has not performed or complied with any of the other terms or conditions of the Agreement, in whole or in part. If Company becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Passport may terminate the Agreement immediately upon written notice to Company. Upon the expiration or earlier termination of the Agreement, all amounts owed by Company to Passport under the Agreement, of any kind, shall become immediately due and payable to Passport, without further notice to Company. Any notice of termination under the Agreement automatically operates as a cancellation of the applicable Shipments that are scheduled to be picked-up after the effective date of termination. Subject to the limitations and other provisions of the Agreement, the representations and warranties of the Parties contained herein, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Agreement. 

16.   Force Majeure.  Passport will not be liable or responsible, nor shall be deemed to have breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay results, in whole or in part, from the occurrence of any contingency beyond the reasonable control of Passport, including, but not limited to, acts of God, fires, floods, break-downs, riots, embargoes, earthquake, explosion, government actions, war (whether or not an actual declaration thereof is made), terrorist threats or acts, or other civil unrest, national emergency, revolution, insurrection, pandemics, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials, cyber-attacks, telecommunication breakdown or power outage.  Any such delay shall excuse Passport from performance and Passport’s time for performance shall be extended for the period of delays and for a reasonable period thereafter.

17.   Miscellaneous.

17.1   Further Assurances. On Passport’s reasonable request, Company shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts necessary to give full effect to the Agreement.

17.2   Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement must be in writing and addressed to the other Party at its address or e-mail set forth in the first page of these Terms (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail or e-mail (in each case, return receipt requested, postage prepaid or with confirmation of transmission). Except as otherwise provided in the Agreement, a notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the notice has complied with the requirements of this Section. 

17.3   Headings. The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.

17.4   Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

17.5   Amendment and Modification. These Terms, including the exhibits attached hereto, may be amended, modified or updated by Passport from time to time, by uploading an updated version of these Terms to https://passportshipping.com/documentation/terms-of-service. Each issuance of a Service Request is deemed Company’s confirmation, acceptance and acknowledgement of the most recent version of these Terms. Except as set forth in this Section 17.5 with respect to these Terms, no amendment to the Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 

17.6   Waiver. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the 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 the exercise of any other right, remedy, power, or privilege 

17.7   Cumulative Remedies. All rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

17.8   Assignment. Company may not assign any of its rights under the Agreement without the prior written consent of Passport. Any purported assignment or delegation in violation of this Section shall be null and void.

17.9   Successors and Assigns. The Agreement is binding on and inures to the benefit of the Parties to the Agreement and their respective permitted successors and permitted assigns. 

17.10   Third-Party Beneficiaries.  Subject to the next sentence, the Agreement benefits solely the Parties and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. The Parties hereby designate Indemnified Parties as third-party beneficiaries.

17.11   Choice of Law. The Agreement, including all exhibits, schedules, attachments and appendices attached to the Agreement and thereto, and all matters arising out of or relating to the Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without regard to the conflict of laws provisions thereof and excluding the 1980 U.N. Convention on Contracts for the International Sale of Goods.

17.12   Arbitration. Any action, proceeding, controversy, dispute or claim arising out of or relating to this Agreement, the breach thereof, its enforcement, arbitrability or interpretation shall be submitted to JAMS for final and binding arbitration, to be held in Silicon Valley, California, before a single arbitrator. The arbitrator shall be selected by mutual agreement of the Parties or, if the Parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. The arbitration shall be a confidential proceeding, closed to the general public. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. The Parties will share equally in payment of the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and reasonable outside attorneys’ fees and other expenses to the same extent as if the matter were being heard in court). Nothing in this paragraph shall affect the Company’s ability to seek from a court injunctive or equitable relief at any time.

17.13   WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THE AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE (AND NOTWITHSTANDING THE TERMS OF SECTION 17.12) IN THE EVENT A CONTROVERSY LEADS TO TRIAL, EACH SUCH 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, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THE AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.