Terms & Conditions

Deliver Now Logistics, United States, Inc. (“DNL”) Terms & Conditions (As of December 12, 2014)

1.0 DEFINITIONS

1.1 “Carriage” means the whole or any part of the operations and services undertaken or performed by or on behalf of DNL in respect of the Goods covered by this Agreement.

1.2 “Person” means any natural person, firm, partnership, joint venture, corporation, or any other legal entity.

1.3 “Goods” means the cargo that Customer has tendered for Carriage, irrespective of the intended means of carriage, and includes any Container not supplied by or on behalf of DNL.

1.4 “Vessel” includes the vessel named on the front page of DNL’s HBL, if any, or any substitute for that vessel, and any feeder vessel, lighter, or barge used by or on behalf of DNL in connection with any part of the Carriage.

1.5 “Package” means each Container that is stuffed and sealed by or on behalf of the Customer, and not the items packed in such Container if the number of such items is not indicated on the front page of this Waybill, and not where the number of such items is indicated by the terms such as “Said to Contain” or similar expressions.

1.6 “Container” includes, without limitation, any shipping container, open top, trailer, transportable tank, flat rack, platform, pallet, unit load device (“ULD”), and any other equipment or device used for or in connection with the Carriage.

1.7 “COGSA” means the Carriage of Goods by Sea Act of the United States of America, Apr. 16, 1936, ch. 229, 49 Stat. 1207, reprinted in note following 46 U.S.C. § 30701.

1.8 “Charges” includes, without limitation, freight, all expenses, costs, detention, demurrage, general average, and any other money obligations incurred and/or payable by Customer, and all collection costs for freight and other amounts due from Customer, including, without limitation, attorneys’ fees and court costs.

1.9 “Dangerous Goods” includes any Goods classified or described as dangerous or hazardous in the International Civil Aviation Organization (ICAO) regulations, International Air Transportation Association (IATA) regulations, International Maritime Organization’s International Maritime Dangerous Goods Code, any applicable national laws or regulations, or the Forwarder’s applicable tariff, and any Goods that could present or could be likely to present any hazard to the transporting conveyance or to other cargo or property or to any Person.

1.10 “Hague-Visby Rules” means the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels, 25 August 1924; as amended at Brussels, 23 February 1968 and subsequently amended at Brussels, 21 December 1979.

1.11 “Warsaw Convention” means the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929; that Convention as amended at The Hague on 28 September 1955; and/or that Convention as amended at The Hague 1955 and by Montreal Protocol Nos. 1, 2, or 4 (1975), as the case may be.

1.12 “Montreal Convention” means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, as well as any subsequent protocols and/or amendatory instruments, as the case may be.

1.13 “Transportation” means the carriage of Goods from a Customer designated point of origin to a Customer designated destination.

1.14 The term “DNL” as used herein shall, in addition to meaning DNL, United States, Inc., also be deemed to refer to any company (a “DNL Affiliate”) that controls, is controlled by, or is under common control with DNL, mutatis mutandis, to the extent that such DNL Affiliate is providing services hereunder.

2.0 DNL’S UNDERTAKING

Customer understands that DNL has undertaken to arrange the surface, water or air transportation of the Goods.  DNL neither owns nor operates the ships or aircraft that will actually transport the Goods.

DNL contracts with service providers including, without limitation, vessel-operating common carriers, other NVOCCs, direct air carriers, other IACs, motor carriers, drayage companies, transportation brokers, customs brokers, other freight forwarders, rail forwarders, warehousemen, and/or other transportation and transportation-related service providers (collectively, the “Service Providers”) to transport and/or handle the Goods.  DNL has the right at any time and on any terms whatsoever to sub-contract the whole or any part of the Carriage and any and all duties the Forwarder has undertaken in respect of the Goods, and/or to substitute any other vessel or means of transport.

Any and all customs clearance services shall be provided or arranged by DNL solely as a direct representative of Customer, pursuant to a valid power of attorney.

3.0 SERVICES

3.1 At the request of Customer, DNL shall arrange Transportation by rail carrier; motor carrier; vessel-operating common carriers and direct air carriers.  By tendering Goods for Transportation, Customer agrees to the terms of this Agreement.  When DNL acts as a Forwarder, NVOCC or IAC, all Services shall further be governed by DNL’s corresponding surface freight forwarder bill of lading (“FFBL”), a house bill of lading (“HBL”) or house air waybill (“HAWB”).  Whether or not Service Provider(s) issue a bill of lading or other transportation document, the terms of this Agreement and the corresponding DNL contract for carriage, FFBL, HBL, or HAWB and DNL’s tariff (if any) shall govern the parties to this Agreement.

3.2 Services Details.  Customer shall provide DNL with all Transportation details in writing including, without limitation, requested mode of transportation, points of origin and destination, description of the subject materials or products, and identification of the parties to the transportation, such as shipper, consignee, warehouse, customs broker, etc.3.3 Routing.   Unless Customer has specifically identified a mode of carriage and a specific carrier in a separate written agreement with DNL, DNL shall have complete discretion in selecting the mode of Transportation as well as the routing and all handling, collection and delivery details required to successfully accomplish the Transportation of the Goods.

4.0 TERM OF AGREEMENT

The Agreement’s Effective Date is according to section 30 of this Agreement and it shall remain in effect for an initial term of one (1) year, unless terminated earlier under section 5, below, by either or both parties.  In the absence of a termination, this agreement shall renew automatically and shall continue to renew on an annual basis unless terminated by the parties.  “Term” means the initial term and any agreed-to extension.  Pricing under this agreement can be changed by DNL at any time and the receipt of cargo at any time shall be subject to the then current rates.

5.0 TERMINATION

5.1 Mutual Agreement.  The parties may terminate this Agreement at any time by mutual written agreement.

5.2 Termination by Customer Without Cause.  Customer may terminate this Agreement without cause upon the expiration of one hundred twenty (120) days after delivery to DNL of written notice of intent to terminate.

5.3 Termination by DNL Without Cause.  DNL may terminate this Agreement without cause upon the expiration of thirty (30) days after delivery to Customer of written notice of intent to terminate.

5.4 Customer’s Termination for Cause.  Customer may terminate this Agreement immediately upon (i) DNL’s filing of a petition for bankruptcy, whether voluntary or involuntary, which if involuntary, is not dismissed within sixty (60) days, becoming insolvent, or ceasing to do business in the normal course; (ii) DNL’s material breach of this Agreement and the expiration of thirty (30) days after delivery to DNL of written notice of such breach, unless DNL cures or removes such breach within such time period or a time period to which the parties have agreed; or (iii) a change in control of DNL where such control is acquired, directly or indirectly, in a single transaction or series of transactions, or all or substantially all of the assets of either party are acquired by another Person, or either party is merged with or into another Person to form a new entity and either party does not provide the other with thirty (30) days’ written notice prior to such change in control.

5.5 Termination by DNL.  DNL may terminate this Agreement immediately upon (i) Customer’s filing of a petition for bankruptcy, whether voluntary or involuntary, which if involuntary, is not dismissed within sixty (60) days, becoming insolvent, or ceasing to do business in the normal course; (ii) the expiration of thirty (30) days after delivery to Customer of written notice of Customer’s material breach of this Agreement, unless Customer cures or removes such breach within such time period or a time period to which the parties have agreed; or (iii) a change in control of Customer where such control is acquired, directly or indirectly, in a single transaction or series of transactions, or all or substantially all of the assets of either party are acquired by another Person, or either party is merged with or into another Person to form a new entity and either party does not provide the other with thirty (30) days’ written notice prior to such change in control.

6.0 RATES AND PAYMENTS

Subject to individual quotes, DNL shall perform the Services according to the base Rate Schedule set forth in Appendix “D” to this Agreement.  Base rates are exclusive of handling fees and subject to change based on market conditions.

7.0 FEES AND TAXES

Customer shall pay to DNL all Charges applicable to the Services, with no right of set-off, including for any claims based on disputed invoices or claims for loss or damage.  DNL will invoice Customer for the Fees following each shipment. Customer shall pay all Charges on an invoice within fifteen (15) days from date of the invoice.  If Customer fails to make a payment when due, Customer shall pay to DNL a late payment fee equal to one and one-half percent (1.5 %) per month of the total past due balance of Customer’s invoice, or the maximum amount allowed by applicable law, whichever is less.  All Charges are exclusive of applicable federal, state, and local sales, use, excise, or similar taxes (collectively, “Taxes”), and Customer shall pay directly or reimburse DNL for all Taxes applicable to the Services.  Except as otherwise specified or agreed by DNL in writing, payments must be made in the currency shown on the invoice generated and sent by DNL for its services.  DNL may change the Charges from time to time without prior written notice to Customer.  Customer must notify DNL of any billing dispute within 180 days of receiving a contested invoice, or any billing dispute is waived.  A partial payment against an invoice is not considered notification of a billing dispute.

8.0 NOTICE OF CLAIM AND TIME-BAR

8.1 Customs Brokerage  Unless subject to a specific statute or international convention, all claims against DNL for a potential or actual loss arising from the preparation and/or submission of an export declaration(s), import entry(s) or DNL’s activities as a customs broker must be made in writing and received by DNL within seventy five (75) days from the date of liquidation of the entry or entries in question.  The failure to give DNL timely notice shall be a complete defense to any suit or action commenced by Customer.

8.2 Surface Freight Forwarding  (A) Unless written notice of loss or damage and the general nature of such loss or damage is given in writing to DNL or its agent at the Place of Delivery before or at the time of the removal of the Goods into the custody of the Person entitled to delivery thereof under DNL’s HBL, such removal shall be prima facie evidence of the delivery by DNL of the Goods as described in the corresponding HBL.  If the loss or damage is not apparent, the notice must be given within three days of the delivery.  (B)  In any event, DNL, its servants, agents, and Service Providers shall be discharged from all liability in respect of loss or damage unless suit is brought in the exclusive forum under section 23 within one year after the delivery of the Goods or the date on when the Goods should have been delivered; provided, however, if such time period shall be found to be contrary to any compulsorily applicable law, then the prescribed period under such law shall then apply, but only in that circumstance.

8.3 Air Carriage  (A) Receipt by the person entitled to delivery of the Goods without complaint shall be prima facie evidence that the Goods have been delivered in good condition and in accordance with this Agreement.  In the case of loss of, damage or delay to the Goods a written complaint must be made to DNL by the Person entitled to delivery.  Such complaint must be made:

(1) In the case of damage to the Goods, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the Goods;   (2) In the case of delay, within 21 days from the date on which the Goods were placed at the disposal of the Person entitled to delivery;   (3) In the case of non-delivery of the Goods, within 120 days from the date of issue of DNL’s HAWB, or if DNL did not issue one, within 120 days from the date of receipt of the Goods for Carriage by DNL.  Unless a written complaint is made within the time limits set forth above, no action may be brought against DNL.  (B) Any rights to damages against DNL shall be extinguished unless an action is brought in the exclusive forum under section 23 within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the Carriage stopped.

8.4 Sea Carriage  (A) Unless written notice of loss or damage and the general nature of such loss or damage is given in writing to DNL or its agent at the Port of Discharge or Place of Delivery, whichever is applicable to the Carriage, before or at the time of the removal of the Goods into the custody of the Person entitled to delivery thereof under DNL’s HBL, such removal shall be prima facie evidence of the delivery by DNL of the Goods as described in the corresponding HBL.  If the loss or damage is not apparent, the notice must be given within three days of the delivery.  (B)  In any event, DNL, its servants, agents, and Service Providers shall be discharged from all liability in respect of loss or damage unless suit is brought in the exclusive forum under section 23 within nine months after the delivery of the Goods or the date on when the Goods should have been delivered; provided, however, if such time period shall be found to be contrary to any compulsorily applicable law, then the prescribed period under such law shall then apply, but only in that circumstance.

8.5 Any Other Claims (A) Any other claim by Customer against DNL for loss or damage arising from any service provided to Customer, or which DNL has otherwise undertaken to provide, shall be made in writing and notified to DNL within 14 days of the date upon which Customer became, or ought reasonably to have become, aware of any event or occurrence alleged to give rise to such claim, and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where Customer can show that it was impossible for it to comply with this time limit, and that it has made the claim as soon as it was reasonably possible for it to do so. (B) In any event, DNL, its servants, agents, and Service Providers shall be discharged from all liability in respect of loss or damage unless suit is brought in the exclusive forum under section 23 within nine months after the date of the event or occurrence alleged to give rise to a cause of action against DNL; provided, however, if such time period shall be found to be contrary to any compulsorily applicable law, then the prescribed period under such law shall then apply, but only in that circumstance.

9.0 LIMITATION OF LIABILITY, OPPORTUNITY TO AVOID LIMITATION OF LIABILITY
To the extent required by compulsorily-applicable law, DNL has established and offered alternative rates of freight for Carriage and Customer acknowledges that it has made an election between those alternative rates, between (1) DNL’s regular/lower rates for Goods with limited value, and (2) ad valorem rates for goods not so limited, which rates are dependent on the value declared by Customer.  In any event, unless Customer declares the nature and value of the Goods prior to the carriage, and sets forth the same on the front page of the corresponding HBL or HAWB, and pays to DNL a corresponding ad valorem rate, Customer knowingly and willingly elects to ship under DNL’s regular/lower rates, the consequence of which shall be that DNL’s liability to Customer shall be limited as follows:

9.1 Customs Brokerage DNL’s maximum liability for claims arising from work performed in its role as a customs broker shall be limited to a maximum of US$50 per entry.

9.2 Surface Freight Forwarding  With respect to Surface Freight Forwarding, DNL’s liability for any and all loss or damages (including, but not limited to, loss or damage to cargo occurring during motor or rail Carriage) shall be limited to the higher of US$50.00 per shipment or US$0.50 per pound (US$1.10 per kilogram) of that part of the cargo adversely affected thereby, unless governed by a compulsorily applicable law setting forth a higher minimum liability limit.  In such cases, DNL’s liability shall be as set forth in Section 9.7 below.

9.3  International Air Carriage:  With respect to international air Carriage, DNL’s liability shall be exclusively governed by the provisions and limits of liability of the Montreal Convention or, where by its own terms the Montreal Convention shall not apply,  the Warsaw Convention, and neither DNL nor its servants, agents, Service Providers, and/or any vessel or conveyance that transports the Goods shall in any event be or become liable for any loss or damage to or in connection with the Carriage of the Goods in an amount exceeding 19 SDRs per kilogram or $20 per kilogram, depending on which of the two conventions may govern the Carriage.

9.4 Carriage by Sea to or from the U.S.: With respect to Carriage by ocean/sea to or from the U.S., DNL’s liability shall be exclusively governed by the provisions and limits of liability of COGSA and neither DNL nor its servants, agents, service providers, and/or any vessel that transports the Goods shall in any event be or become liable for any loss or damage to or in connection with the carriage of the Goods in an amount exceeding $500 per package lawful money of the U.S., or in case of Goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency.

9.5 Carriage By Sea other than to or from the U.S.: With respect to Carriage by ocean/sea other than to or from the U.S., DNL’s liability shall be exclusively governed by the provisions and limits of liability of the Hague-Visby Rules and neither DNL nor its servants, agents, service providers, and/or any vessel that transports the Goods shall in any event be or become liable for any loss or damage to or in connection with the Carriage of the Goods for any loss in an amount exceeding the greater of 666.67 SDR per package or unit or 2 SDR per kilogram of gross weight of the goods lost or damaged.

9.6 Limitation for All Other Carriage or Where the Above-referenced Laws and/or Conventions Do Not Apply: Where the Warsaw Convention, Montreal Convention, Hague-Visby Rules or COGSA do not apply, DNL’s liability, howsoever arising shall not exceed: (A) For loss or damage to Goods, the greater of $.50 per pound or $50; (B) For loss or damage as a result of delay, or failure to deliver, or arrange delivery of Goods in a reasonable time, or to adhere to agreed departure or arrival dates, the lesser of $ 1,000 or a sum equal to twice the amount of DNL’s charges in respect of the relevant services; and (C) For all other claims, including loss resulting from an error and/or omission, or a series of errors and/or omissions which are repetitions of or represent the continuation of an original error, and/or omission, $ 50,000 in the aggregate for each consecutive full one year period of the Term.

9.7 Scope of limitation: The limitation set forth in Clauses 9.2 and 9.6 above, shall apply to all situations where loss or damage occurs to Goods during Transportation; however, in all cases where the Transportation is governed by a compulsorily applicable law, treaty, statute or rule which contains a minimum limitation of liability higher than that set forth in Sections 9.2 and 9.6, Customer agrees that DNL shall be entitled to limit its liability to the minimum amount of liability set forth in that compulsorily applicable law, treaty, statute or rule.

9.8 NO WARRANTIES: DNL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES.

10.0 REFUSAL OF SERVICE

DNL reserves the right in its sole discretion to refuse to provide service for, without limitation, (i) any shipment that by reason of the dangerous or other character of its contents may, in the sole judgment of DNL, soil, taint, or otherwise damage other goods or equipment, or that is improperly packed, or that contains prohibited or restricted commodities; (ii) if Customer fails to pay when due any amounts owing; or (iii) if DNL deems that it is unsafe or economically or operationally impracticable to provide service.

11.0 EXCLUSIONS

IN NO EVENT SHALL DNL BE LIABLE FOR LOSS OF MERCHANTABILITY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, FINES, INTEREST, PENALTIES, LOSS OF PROFITS, LOSS OF INCOME, LOSS OF MARKET OR LOSS OF BUSINESS OPPORTUNITY WHETHER OR NOT DNL HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED, WHETHER PLEADED UNDER TORT, CONTRACT OR ANY OTHER LEGAL THEORY.  To the extent not prohibited by law, this exclusion applies to damages of any and every kind, including, but not limited to, property damage, financial losses and damage to reputation, and whether or not the claim for damage arises directly from any service provided by DNL related to the transportation of goods.

12.0 FORCE MAJEURE
“Force Majeure Event” means any event beyond a party’s control, including, without limitation, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, floods, acts of God, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment.  To the extent that either party’s performance, except payment obligations, is precluded or delayed by a Force Majeure Event, such performance shall be excused for the time necessitated by such Force Majeure Event. Further, DNL shall bear no liability for any loss or damage (including to any Goods in the care and custody of DNL, its servants, agents, and/or Service Providers) resulting from such Force Majeure Event.

13.0 INDEPENDENT CONTRACTOR
DNL is an independent contractor.  Except as set forth in a duly-authorized power of attorney, DNL shall not hold itself out as an agent of or in a joint venture with Customer, and DNL shall have no authority to act on behalf of Customer.

14.0 DANGEROUS GOODS

14.1 At the time of shipment of Dangerous Goods, Customer shall be in compliance with the regulations governing the transportation of such goods, have the same properly packed, distinctly marked, and labeled, and notify DNL in writing of their proper description, nature, and the necessary precautions, as well as provide all necessary documentation which is required for the transportation of such Dangerous Goods.

14.2 Dangerous Goods or Goods that are otherwise of an inflammable, explosive or dangerous nature to the shipment whereof DNL, master or agent of the Forwarder, has not consented with knowledge of their nature and character, may at any time before discharge be landed at any place and destroyed or rendered innocuous by DNL without compensation, and Customer shall be liable for all damages and expenses directly or indirectly arising out of such shipment.

14.3 Customer shall indemnify and hold harmless DNL against any and all loss, damage, liability, and expense, including, without limitation, attorneys’ fees that DNL has incurred, arising out of or in any way connected with or caused by, in whole or in part, omission of the full disclosure required by this clause or by any compulsorily applicable treaties, conventions, laws, codes, or regulations.

15.0 PERISHABLE CARGO

15.1 Goods of a perishable nature shall be carried in ordinary Containers without special protection, services, or other measures unless there is noted on the front page of the corresponding HBL or HAWB that the Goods will be carried in a refrigerated, heated, electrically ventilated, or otherwise specially-equipped Container, or that the Goods are to receive special attention in any way, and additional charges paid by Customer for any special handling.

15.2 The term “apparent good order and condition” when used in on an HBL or HAWB with reference to Goods that require refrigeration does not mean that the Goods, upon DNL’s receipt of the same, were verified by DNL as being at the designated carrying temperature.

15.3 DNL shall in no event be held liable for damage to Goods due to condensation or other atmospheric conditions which may exist inside any shipping container.

16.0  INDEMNITY

Customer undertakes that no allegation, claim, or legal action shall be made or brought against any Person other than DNL or any vessel or conveyance that performs or undertakes the Carriage, including, without limitation, DNL’s servants, agents, or Service Providers, which imposes or attempts to impose upon any such Person, or vessel owned or operated by such Person, any liability whatsoever, whether arising in contract, tort, bailment, or otherwise, in connection with the Goods or the Carriage.  Should Customer nevertheless make any such claim or allegation, or bring a legal action, Customer undertakes and agrees to defend, indemnify, and hold harmless Customer against all consequences thereof.  Without prejudice to the foregoing, every such Person and vessel, including, without limitation, DNL’s servants, agents, or Service Providers, shall have the benefit of every exemption, defense, and limitation herein benefiting DNL, in contract, tort, bailment, indemnity, or otherwise, as if such provisions were expressly for every such Person’s and vessel’s benefit, and in entering into this Agreement, DNL, to the extent of such exemptions, defenses, and limitations, does so not only on its own behalf, but also as agent or trustee for such Persons and vessels, and such Persons and vessels shall, to that extent, be or be deemed to be parties to this Agreement.

Furthermore, it is the responsibility of the Customer to comply with all laws, rules, regulations, orders, requirements and decrees of any federal, state or local governments, government officials and/or agencies relating to the marking, classification, licensing, export controls and any other transporting, importing or exporting requirements.  DNL shall not be responsible for action taken or fines or penalties assessed against the Goods due to the Customer’s failure to comply with any such laws, rules, regulations, orders, requirements and decrees.  Customer further agrees to defend, indemnify and hold DNL completely and totally harmless from any and all liability, claims, costs expenses, fines and/or penalties alleged or ultimately assessed against DNL which may arise, in whole or in part, from the Carriage of Customer’s Goods.

17.0 GENERAL AVERAGE

Customer shall indemnify DNL against any claims of a General Average nature which may be made upon DNL with respect to any Goods or vessels carrying such Goods, and shall provide such security as may be required by DNL or its servants, agents, or Service Providers.

18.0 OPTIONAL STOWAGE AND DECK CARGO

18.1 Goods may be packed by DNL in any type of Container and consolidated with other goods.

18.2  Goods, whether or not packed in Containers, may be carried on deck or under deck of a vessel at the sole discretion of DNL without notice to Customer, and such stowage and carriage shall not be a deviation of whatsoever nature or degree. All Goods whether carried on deck or under deck shall participate in General Average, and (except as provided in Clause 18.3) such Goods shall be deemed to be within the definition of goods for the purposes of the Hague-Visby Rules and COGSA.

18.3  Goods which are stated on the face of the FFBL, HBL or HAWB as being carried on deck of a vessel and which are so carried are carried at the sole risk of Customer and without any responsibility on the part of DNL for loss or damage or any other matter whatsoever, whether or not caused by unseaworthiness or negligence or any other cause whatsoever. The Hague- Visby Rules and COGSA shall not apply to such carriage. Customer shall indemnify DNL against any extra costs incurred for any reason whatsoever in connection with such carriage.

19.0 TRANSPORTATION DOCUMENTS

In case of a conflict, and except as otherwise set forth in this Agreement, the terms and conditions of this Agreement shall supersede the terms and conditions of the FFBL, HBL or HAWB for the Carriage of particular Goods.

20.0 CONFIDENTIALITY

For two (2) years from the date of disclosure by a party of any of its proprietary or confidential information (“Confidential Information”), and in the case of Confidential Information that constitutes a trade secret under applicable law for so long as such Confidential Information remains a trade secret, the party receiving such Confidential Information will not disclosure such Confidential Information and shall exercise the same degree of care to avoid disclosure of such Confidential Information as it employs with respect to its own Confidential Information, but not less than reasonable care.  Confidential Information shall not include such information that (a) is now or hereafter becomes publicly known without violation of this Agreement, (b) was known to the recipient prior to the time of disclosure without obligation to preserve confidentiality, (c) was received by the recipient from a third party legally entitled to disclosure the information without obligation to preserve confidentiality, (d) was independently developed by the recipient, or (e) is authorized to be disclosure by the disclosure party or is required to be disclosure by law in which case the recipient will inform the disclosure party and allow the disclosure party reasonable time to seek a protective order.

21.0 ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST

This Agreement is the parties’ final expression and entire agreement arising out of or in any way relating to its subject matter.  This Agreement sets forth the parties’ entire understanding and it supersedes any and all contemporaneous and prior oral and written understandings and agreements that arise out of or are in any way related to the subject matter of the Agreement.  This Agreement shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each party.

22.0 VARIATION OF THE CONTRACT; PARTIAL INVALIDITY

No employee, servant, agent, or Service Provider of DNL has the power to waive or vary any of the contract terms and conditions of this Agreement unless the president of DNL, in writing, has specifically authorized such a waiver or variation.  If any provision of this Agreement shall for any reason be held to be invalid or unenforceable by any court or regulatory body, then the remainder of this Agreement shall be unaffected thereby, and remain in full force and effect.

23.0 LAW AND JURISDICTION

In the absence of any compulsorily-applicable law to the contrary, Customer agrees that all claims or disputes arising out of or in any way connected to this Agreement or the Carriage shall be determined under the federal law of the United States of America, or where such law is inapplicable, under the laws of the State of Massachusetts, and exclusively in the United States District Court for the Central District of Boston, Massachusetts to the exclusion of all other courts, and Customer and DNL agree to irrevocably submit to the personal jurisdiction of such courts, and thereby waive any jurisdictional, venue, or inconvenient forum objections to such courts.

24.0 SEVERABILITY

If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, then the remainder of this Agreement shall be unaffected thereby, and remain in full force and effect.

25.0 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES

Neither party may assign or transfer any right or obligation under this Agreement without the prior written consent of the other party.  The parties understand and agree that there are no third party beneficiaries of this Agreement other than the entities mentioned in section 16.0 above.

26.0 WAIVER

A waiver of any right by either DNL or Customer will not constitute a waiver of such right on any subsequent occasion.  Acceptance by DNL of the amounts or lesser amounts payable under this Agreement, including a price quote, shall not be deemed a waiver of any default.

27.0 LIENS

DNL shall in all cases have both a general and special/particular lien and pledge on all Goods and documents of title with regard to any and all claims DNL may have against Customer or its successor in interest.

28.0 NO USE OF TRADEMARKS

Neither DNL nor Customer shall use each other’s or their respective affiliates’ corporate name or logo without prior written consent; provided, however, that DNL may disclose Customer’s name as a reference to any current or prospective customer.

29.0 TERMS ARE SUBJECT TO CHANGE

Customer understands that the terms and conditions under which DNL’s Services are provided are subject to change. In the event DNL’s terms and conditions are modified, the revised version will be posted to DNL’s website. Unless Customer and DNL otherwise agree in writing, by its signature below and by using DNL’s Services after the effective date, Customer hereby consents to such modifications and agrees that the modified terms and conditions shall apply to all services performed and shipments handled from that effective date forward. Customer is advised to take note of the most current terms and conditions which are posted on DNL’s website and which are also available to Customer upon