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Terms and Conditions of Service

Effective: January, 2018

  1. DEFINITIONS: In these Terms and Conditions of Service, “CALADEX” means Caladex LLC d/b/a Caladex Logistics. “Cartage” means the portion of surface carriage occurring before or after the transport of a Shipment aboard an aircraft. “Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Warsaw on October 12, 1929, as amended. by the Hague Protocol in 1955, the Montreal Protocol 1, 2 or 4 or the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal in 1999, whichever may be applicable to the international carriage of a Shipment. “Customer” means the party from whom the Shipment is received, the party who requested the Shipment be transported by CALADEX, any party having an interest in the Shipment, and any party acting as an agent for any of the foregoing. “Shipment” means all pieces which are tendered to and are accepted by CALADEX for transportation, whether as agent of Customer or on a single air waybill or bill of lading between origin and destination points specified by Customer.

  2. AGREEMENT TO TERMS:
    a. In tendering a Shipment for carriage, Customer agrees that these Terms and Conditions constitute a binding contract, and further agrees that no agent, servant or employee of the parties may alter, modify or waive them except as set forth herein. Customer understands and agrees that carriage may be subject to the Convention or other compulsory law. In the event any Shipment is tendered to CALADEX on a straight bill of lading or any other shipping document, Customer agrees that these Terms and Conditions supersede any rules, regulations or contractual terms contained on the shipping document(s) upon which the Shipment was tendered. CALADEX, in the event it issues a waybill or bill of lading, such waybill or bill of lading shall be a non-negotiable document and all CALADEX’s services are rendered per these Terms and Conditions only, as they may be amended from time to time at CALADEX’s discretion, unless superseded by the Convention or other compulsory law. These Terms and Conditions are maintained and published at www.caladex.com/terms-conditions.pdf and are otherwise available on request.

    b. CALADEX may utilize different modes of transportation to assist Customer. Depending on the mode of service, CALADEX operates: i) as a domestic and international air freight forwarder, providing services as a Transportation Security Administration (TSA) licensed Indirect Air Carrier; ii) as a Federal Motor Carrier Safety Administration (FMCSA) licensed Property Broker (MC-060802); or iii) as an FMCSA licensed Freight Forwarder (FF-23036).

    c. CALADEX may act as a principal or as the agent of the Customer. CALADEX acts as an agent except where: (1) it issues a transport document such as an air waybill or bill of lading evidencing its obligation to deliver goods; or (2) CALADEX’s direct employees are physically handling a Shipment. When acting as an agent, CALADEX acts solely on behalf of the Customer in engaging the services of third parties on the usual terms and conditions on which the third parties offer services for the carriage, storage, packing, consolidation or handling of any goods, or for any other service in relation to them, thereby establishing a direct contract between the Customer and the provider capable of being enforced by the Customer as principal, whether or not the Customer is identified in such contract. The Customer acknowledges that it shall be bound by the terms and conditions of the transportation agreements of the third parties into whose custody a Shipment may be entrusted.

  3. CUSTOMER’S OBLIGATIONS:
    a. The Customer shall comply with all applicable laws, rules and regulations of any government or government agency applicable to the Shipment including those relating to: (i) the packing, carriage, sealing, identification or delivery of the goods or, (ii) any aviation or other general freight transport security requirements which must or ought to be complied with by the Shipper.

    b. The Customer shall furnish complete and accurate information and provide to CALADEX such documents as may be necessary to comply with such laws, rules and regulations and enable CALADEX to fully complete the contract of carriage. CALADEX is not liable to the Customer or any other person for loss or expense due to the Shipper’s failure to comply with this provision.

    c. The Customer warrants that: (i) it is either the owner of the goods or the authorized agent of the owner of the goods and further warrants that it is authorized to accept and is accepting these Terms and Conditions not only for himself but also as agent for and on behalf of the owner of the goods and all other persons who are or may hereafter become interested in the goods; (ii) the description and particulars of any goods furnished by or on behalf of the Customer are complete, timely and accurate, and do not contain any irregularities; (iii) all goods are in good order and condition, have been properly and sufficiently prepared, packed, stowed, labeled, sealed, identified and/or marked to ensure safe transportation with ordinary care handling, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and characteristics of the goods; (iv) the goods do not comprise or contain any explosive, incendiary or other device, substance or weapon which may endanger life or the safety of any airplane, vehicle or other transport conveyance to be used in connection with the carriage of the goods or which may cause or may be likely to cause loss, damage, injury to or death of any person or property; and (v) the goods do not comprise or contain any dangerous or hazardous materials within the meaning of the Hazardous Material Regulations of the U.S. Department of Transportation, the IATA Dangerous Goods Regulations, Perishable Cargo Regulations, or Temperature Control Regulations each as revised from time to time (collectively the “Dangerous Goods Regulations”) and the Customer will not tender such goods to CALADEX. 

    d. Any Shipment in which delivery is made in exchange for a clear delivery receipt shall be prima facie evidence of having received ordinary care in handling. Notations on delivery documents such as “subject to inspection” and/or “subject to recount,” or similar, are not valid exceptions.

  4. RATES; RE-WEIGH/RE-MEASUREMENT:
    Rates and charges for a Shipment will be based on actual or dimensional weight, whichever is greater. Dimensional weight criteria may differ depending on how a Shipment is transported. Customer shall provide weight and measurements for Shipments; however, Shipments are subject to re-weigh and re-measurement by CALADEX and/or carriers engaged to transport a Shipment. If the weights or measurements of the Shipment as delivered are different from Customer’s representations, or if pick-up or delivery time or location is changed by Customer, CALADEX’s rates, charges and fees are subject to change.

  5. LIMITATION ON LIABILITY:
    CALADEX shall be liable for any cargo loss, damage or delay for any services only to the extent caused by its negligence or willful misconduct, and then subject to the following limits:

    a. AIR AND COMBINED AIR/GROUND SERVICE: For all U.S. domestic Shipments, including Shipments to or from Puerto Rico and/or U.S. Territories, where CALADEX issues an air waybill, CALADEX’s liability for any loss or damage to a Shipment is limited to the lesser of: 1) Customer’s actual damages; or 2) fifty U.S. dollars ($50.00) per Shipment; or 3) fifty U.S. cents ($0.50) per pound per piece affected, but shall not exceed the Shipment’s repair cost, depreciated value or replacement cost. CALADEX’s liability will in no event exceed the actual invoice value of the specific goods adversely affected. Customer may increase CALADEX’s liability for damage by declaring an “excess” value on a Shipment as set forth herein.

    b. ALL-GROUND U.S. DOMESTIC SERVICE: 1) in the event CALADEX acts pursuant to its Property Broker authority, and as Customer’s agent only, CALADEX will use reasonable care in the selection of properly authorized motor carriers on Customer’s behalf. In such instance, Customer agrees to accept and be bound by the authorized carrier’s terms and conditions and/or applicable tariffs and CALADEX will have no liability for cargo loss, damage or shortage except to the extent such claims are caused by CALADEX’s negligent act or omissions, in which case CALADEX’s liability will be no greater than the amount paid by Customer for the Shipment at issue. 2) in the event CALADEX acts as a principal pursuant to its Freight Forwarder authority, and issues a bill of lading to Customer, CALADEX’s liability for loss, damage, or delay with respect to any Shipment, including storage in-transit, and other handling, for any loss, damage, or delay to the Shipment shall be that of a “carrier” pursuant to the Carmack Amendment as currently codified at 49 U.S.C. § 14706 (as amended from time to time). Except as otherwise set forth herein, Customer (and if Customer is not the actual shipper, for and on behalf of the shipper) expressly waives all rights and remedies it may have as to CALADEX and its subcontractor motor carriers under 49 U.S.C. Subtitle IV, Part B (excluding §§ 13703, 13706, 14101 and 14103) to the full extent permitted by 49 U.S.C. § 14101(b)(1), each as amended from time to time, and unless a higher value is declared in accordance herein and the additional applicable charges are paid to CALADEX, CALADEX’s liability for loss, damage or delay to any Shipment shall be limited to the lesser of: 1) Customer’s actual damages; or 2) fifty U.S. dollars ($50.00) per Shipment; or 3) fifty U.S. cents ($0.50) per pound per piece affected, but shall not exceed the Shipment’s repair cost, depreciated value or replacement cost.

    c. INTERNATIONAL AIR SERVICE: Where CALADEX issues an air waybill for an international air Shipment, all of the following terms shall govern: 1) all rules relating to liability as established by the Convention shall apply; 2) except as otherwise provided herein, and as to carriage to which the Convention does not apply, CALADEX’s liability shall not exceed that set forth in part (a), above, unless contravened by compulsory law; and 3) Customer accepts CALADEX’s air waybill as Customer’s letter of instruction with authorization to prepare and sign on Customer’s behalf international shipping documents. CALADEX reserves the right to act solely as agent of the air carrier, instead of as a forwarder/principal, in which event Customer agrees to be bound by the nominated air carrier’s tariff and/or terms and conditions applicable to such Shipment. If CALADEX arranges Cartage services incidental to an international air shipment, unless governed by any compulsory law, CALADEX’s liability for cargo loss, damage or delay proven to have occurred during such Cartage shall be as set forth in subparagraph (a), above. Declared values will be subject to an excess value charge as set forth herein.

    d. ALL-GROUND INTERNATIONAL SERVICE: For services between non-U.S. points, or between the U.S. and Canada or Mexico, where CALADEX has issued a bill of lading, and unless superseded by compulsory law, CALADEX’s liability shall be as set forth in Section (a), above.

    e. MAXIMUM LIABILITY: In the absence of a separate written agreement, CALADEX’s maximum liability for any loss shall be one hundred thousand dollars $100,000.00 per CALADEX-issued air waybill or bill of lading.

    f. OTHER SERVICES: CALADEX’s liability for any services not otherwise defined in these Terms and Conditions, including, but not limited to, where CALADEX is acting as agent of Customer, shall be a maximum of one hundred dollars $100.00.

  6. DECLARING HIGHER EXCESS VALUE: Where CALADEX issues an air waybill or bill of lading, CALADEX’s customary and standard rates for carriage are “release rates” subject to the limitations of liability set forth in Section 5. If you do not declare excess value on a Shipment, you are agreeing to those limits of liability. Customer may opt to increase CALADEX’s liability (but subject to Section 5) by declaring in writing at least 24 hours in advance of tender an excess value on the air waybill or bill of lading, up to a maximum of $25,000.00 without pre-approval by CALADEX. The charge for declared value coverage is $0.50 per $100.00 in value. Please contact CALADEX for further information or if you have any questions about how liability is allocated in our business. You may declare a value in excess of$25,000.00 ONLY when pre-approved in writing by CALADEX, and subject to a maximum declared value of$50,000.00.

     

  7. LIABILITIES NOT ASSUMED:
    CALADEX shall not be liable for any loss, damage, non-delivery or delay caused by the act, default or omission of Customer or the consignee, the nature of the Shipment or any defect, characteristic, or inherent vice thereof, any act of God, perils of the air, public enemies, public authorities acting with actual or apparent authority of law, acts or omissions of Customs or quarantine officials, riots, strikes, civil commotions, hazards incident to a state of war, terrorism, weather conditions, delay of aircraft or other vehicles used in providing transportation services or acts or omissions of any carrier or any other entity or person to whom a Shipment is tendered by CALADEX (where CALADEX shall be deemed as acting as Customer’s agent) for transportation beyond that provided for and agreed to by CALADEX in the CALADEX air waybill or bill of lading, regardless of whether Customer requested or had knowledge of such third party delivery arrangement. CALADEX SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, INCOME, INTEREST, UTILITY, OR LOSS OF MARKET, WHETHER OR NOT CALADEX HAD KNOWLEDGE THAT SUCH DAMAGE MIGHT BE INCURRED.

  8. CLAIMS PROCEDURES:
    All claims against CALADEX must be timely made in writing, sufficiently describing the factual details of the claim and including a bona fide replacement cost estimate. No claim will be processed by CALADEX until all transportation charges have been paid in full. In the event of a claim the Shipment, its container(s) and its packing material must be made available to CALADEX for reasonable inspection at the delivery location. Under no circumstances will CALADEX be liable for loss and/or damage to external shipping containers of any kind. Written notice as required herein must be sent to: Caladex LLC, 153 Cleveland Avenue, Buffalo, NY 14222.

    a. For domestic and international air Shipments, written notice of claim must be made to CALADEX within: (i) 14 days from the date of delivery; (ii) 21 days from the original expected date of delivery in the case of delay; and (iii) 120 days in the case of non-delivery of the Shipment, calculated from the date the Shipment was accepted by CALADEX.

    b. All-Ground Transportation, except with respect to Shipments that are exempt per 49 USC 13506(a)(8) and 13531, which shall be considered air Shipments, written notice of claim must be received by CALADEX within 9 months and 1 day of the date of delivery.

    c. Exception for Concealed Damage Claims: “Concealed damage” means damage and/or loss discovered by the consignee after delivery when no notification of loss or damage has been made on the delivery receipt by the consignee upon actual receipt of the Shipment. If claims for concealed damage are not timely made, a presumption shall exist that such damage occurred subsequent to delivery, and the claim will be declined. All claims for concealed damage must be reported to CALADEX in writing within 48 hours of the time of delivery and a written claim must be made within 14 days of the time of delivery.

    d. Overcharges: Claims for overcharges must be made in writing within 1 year following the date CALADEX accepted the Shipment.

    e. Limitations on actions: Unless subject to a specific statute or international convention, CALADEX will not be liable in any action brought to enforce a claim unless the above claims procedures have been complied with and unless such action is brought: (i) in the case of domestic Shipments, within 2 years after the date written notice is given to the claimant that CALADEX has disallowed the claim in whole or in part; and (ii) in the case of international Shipments, within 2 years from either the date of arrival of the Shipment at destination or from the date the Shipment ought to have been delivered. The failure to give CALADEX timely notice of a claim in accordance with these Terms and Conditions shall be a complete defense to any action commenced by Customer.

  9. SERVICES NOT GUARANTEED: Unless agreed to in writing in advance of a Shipment, CALADEX undertakes to complete carriage with reasonable dispatch and does not guarantee pick up, transportation or delivery by a stipulated date or a stipulated time, nor shall CALADEX be liable for the consequences of failure to do so.
  10.  ANCILLARY SERVICE PROVIDERS: CALADEX, as agent for Customer, shall use reasonable care in its selection of third parties that provide ancillary services to the transportation of a Shipment, such as packing, packaging or crating (or uncrating). Advice by CALADEX that a particular person or firm selected to render ancillary services shall not be construed to mean that CALADEX warrants or represents that such person or firm will render such services nor does CALADEX assume responsibility or liability for any actions(s) of such third parties and/or its agents.
  11. RECORDKEEPING: Customer acknowledges that it has the sole responsibility for maintaining records required of it by law and CALADEX has no obligations or liability related thereto. CALADEX shall only be required to keep those records required of it by applicable law or regulation.
  12. INSURANCE: CALADEX is not an insurer of any Shipment and is under no obligation to procure insurance on Customer’s behalf.
  13. QUOTATIONS NOT BINDING: Quotations as to fees, rates of duty, freight charges or other charges given by CALADEX to the Customer are for informational purposes only and are subject to change without notice. No quotation shall be binding upon CALADEX unless an authorized representative of CALADEX in writing agrees to undertake the handling or transportation of the Shipment at a specific rate or service level and payment arrangements are agreed to between CALADEX and the Customer prior to tender of the Shipment to CALADEX.
  14. INDEMNIFICATION/HOLD HARMLESS: THE CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CARRIER FROM AND AGAINST, AND SHALL PAY AND REIMBURSE CALADEX FOR ANY AND ALL DIRECT AND INDIRECT LIABILITIES, CLAIMS, LOSSES, EXPENSES, COSTS (INCLUDING ATTORNEY FEES) OR DAMAGES (FOR PURPOSES OF THIS PROVISION, “CLAIMS”) INCURRED OR OCCASIONED BY (i) A BREACH BY THE CUSTOMER OF ANY OF THE WARRANTIES CONTAINED HEREIN;
    (ii) THE FAILURE OF THE CUSTOMER TO COMPLY WITH THESE PROVISIONS; (iii) CALADEX’S EXECUTION OF SHIPPER’S INSTRUCTIONS; (iv) CUSTOMER’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR (v) ANY AUXILIARY SERVICES INCLUDING BUT NOT LIMITED TO LOCAL CARTAGE, CRATING, UNCRATING, PACKING, AND UNPACKING WHICH ARE REQUESTED BY CUSTOMER AND ARRANGED BY CALADEX AS A CUSTOMER ACCOMMODATION WHEN SUCH SERVICES ARE NOT ACTUALLY PERFORMED BY CALADEX; OR (vi) CLAIMS SEEKING TO IMPOSE LIABILITY IN EXCESS OF ANY LIABILITY EXPRESSLY ASSUMED BY CALADEX HEREIN OR IN EXCESS OF ANY LIMITATION OF LIABILITY TO WHICH CALADEX IS ENTITLED HEREUNDER. THE INDEMNITY OBLIGATIONS IN THIS PROVISION SHALL NOT APPLY TO THE EXTENT A CLAIM IS DETERMINED BY A COURT OF APPROPRIATE JURISDICTION TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CALADEX.
  15. CARGO SECURITY REQUIREMENTS: Shipments are subject to all cargo security requirements imposed by all applicable federal and/or state agencies, including but not limited to the Transportation Security Administration in connection with 49 C.F.R. Part 1548. Per 49 CFR 1548.9(b) Customer hereby consents to screening of its Shipments which may include physical search or inspection of such cargo. CALADEX shall have the right to refuse, remove or abandon any Shipment, the transportation of which is prohibited by applicable law, orders or regulations, or the transportation of which, in CALADEX‘s judgment, would be unsafe. Where circumstances permit, such Shipment will be stored at Customer’s expense pending receipt of disposition instructions from Customer.
  16. RIGHT TO REJECT OR RE-ROUTE: CALADEX reserves the right to reject any Shipment for any reason whatsoever, including but not limited to safety or security concerns. It is agreed that no time is fixed for the completion of carriage hereunder and that CALADEX may, without notice, substitute aircraft or alternate carriers, including surface and/or ocean carriers. CALADEX assumes no obligation to forward the goods by any specified carrier or over any particular route or routes or to make connection at any point according to any particular schedule, and CALADEX is hereby authorized to select, or deviate from, the route or routes of shipment, notwithstanding that the same may be stated on the face of the waybill and/or other shipping document(s).
  17. GENERAL LIEN: CALADEX shall have a continuing, general lien on all Shipments for all freight charges (including past due charges on other Shipments), advances or charges of any kind arising out of this contract and may refuse to surrender possession of any or all Shipment(s) until all such charges are paid and is entitled to all rights and remedies legally available. Shipments retained pursuant to the lien established herein may be subject to storage fees and/or disposed of at public or private sale, with CALADEX paid from the proceeds of such sale, including storage charges and costs of sale. CALADEX shall provide written notice to Customer of its intent to exercise its lien, the amount of monies then due and owed, as well as any ongoing storage or other charges; Customer shall notify all parties claiming an interest in the Shipment(s) subject to the lien of the exercise of CALADEX’s lien and CALADEX’s rights as set forth herein. Customer remains liable for charges, including any deficiency remaining after sale.
  18. STORAGE: If the consignee refuses any of the cargo tendered by CALADEX or if CALADEX is unable to deliver any the cargo because of fault or mistake of Customer or the consignee, or if Customer advises and instructs CALADEX to stop movement of the cargo and to hold it in transit, CALADEX’s liability thereafter immediately shall be that of a warehouseman. The procedures that CALADEX agrees to and shall take as a warehouseman involve the use of ordinary care to keep the cargo in a safe or suitable place or to store the cargo properly. CALADEX shall (a) attempt to give Customer notice as soon as possible if the foregoing occurs, (b) place the cargo in storage, if available, unless CALADEX receives contrary disposition instructions from Customer within twenty-four (24) hours, and (c) if disposition instructions are not given by Customer within thirty (30) days of CALADEX’s initial notification to Customer, CALADEX may offer the cargo for public or private sale, return the Shipment to Customer at Customer’s sole risk and expense, or place the cargo into a public warehouse to the account of Customer and in such case CALADEX shall have no further liability or obligation with respect to the Shipment. Customer shall be responsible for storage costs and reasonable costs CALADEX incurs in acting as a warehouseman. If Customer gives CALADEX timely disposition instructions, CALADEX shall use any commercially reasonable steps to abide with such instructions in accordance with this contract. Customer shall pay CALADEX’s costs and any additional transportation costs that CALADEX incurs in doing so. CUSTOMER SHALL REMAIN JOINTLY AND SEVERALLY LIABLE TO CALADEX FOR ANY DEFICIENCY SHOULD THE PROCEEDS OF ANY SALE BE INSUFFICIENT TO OFFSET ALL CHARGES DUE CALADEX WITH RESPECT TO THE GOODS. EXCESS PROCEEDS FROM A SALE WILL BE USED TO SATISFY ANY OUTSTANDING LIEN OR OBLIGATION DUE CALADEX FIRST, WITH ANY BALANCE THEREAFTER PAID TO CUSTOMER. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD CALADEX HARMLESS AGAINST ALL LOSS AND EXPENSE, INCLUDING ATTORNEY’S FEES, OF WHATEVER NATURE BROUGHT BY ANY OTHER OTHER PERSON HAVING AN INTEREST IN THE GOODS SOLD UNDER THIS PROVISION.
  19. C.O.D. OR COLLECT SHIPMENTS (“C.O.D.”): C.O.D. Shipments must be approved by CALADEX prior to tender. If approved, Customer must enter the amount of the C.O.D. in U.S. dollars and cents in spaces specifically provided on the face of CALADEX air waybill or bill of lading, and must specify the type of payment to be received (e.g. cash, check, money order, etc.). Under no circumstances shall CALADEX be responsible if payment proves to be counterfeit, forged, or is for any reason dishonored. In the event payment is dishonored after delivery, Customer will be invoiced those transportation charges and must remit payment for these charges within 15 days to the CALADEX.
  20. CUSTOM DUTIES AND OTHER FEES: CALADEX is authorized by Customer (but shall be under no obligation) to advance any duties, taxes, or charges and to make any disbursements with respect to a Shipment(s), and Customer, owner and consignee shall be jointly and severally liable for the reimbursement thereof. CALADEX may charge an administrative fee to Customer for all such advances.
  21. PAYMENT TERM: Except as otherwise agreed, in advance and in writing, all invoice terms are net 30 days. Any payment which is past due shall be subject to an additional charge of 1 ½% per month of the outstanding balance due or the maximum interest rate permitted by applicable law, whichever is more, together with all collection costs, including reasonable attorney fees, incurred by CALADEX. Irrespective of Customer’s use of a third-party payment agency, Customer at all times remains primarily liable for payment of all CALADEX-invoiced charges. Customer’s obligation to pay CALADEX’s invoices is not extinguished by Customer’s payment to a third-party payment agency unless and until such third-party payment agency has actually paid all CALADEX invoices.
  22. COMPLIANCE WITH LAW/EXPORT CONTROLS: Customer shall comply with all applicable laws (including anti-corruption/anti-bribery laws such as the U.S. Foreign Corrupt Practices Act), government regulations and customs of any country to, from, through or over which the Shipment may be carried, including those relating to its packing, carriage or delivery, and shall furnish to CALADEX complete and accurate information and provide such fully legally compliant documents as may be necessary to comply with such laws and regulations. Customer agrees that it will not engage CALADEX to transport cargo to any sanctioned or embargoed country or individual, whether or not CALADEX is engaged to transport such cargo to an end user.
  23. SEVERABILITY: If any provision contained or referred to in this contract may be contrary to mandatory law, government regulations or orders, such provisions shall remain applicable to the extent that it is not overridden thereby. The invalidity of any provisions shall not affect any other part hereof.
  24. NO MODIFICATION OR AMENDMENT UNLESS WRITTEN: Any attempt by Customer to unilaterally alter or modify these Terms and Conditions shall be null and void. Any modifications to these Terms and Conditions may only be in a writing signed by authorized representatives of both parties. No obligation contained herein shall be deemed to have been waived by CALADEX unless in writing, and no such waiver shall be deemed a waiver of any other term or condition herein.
  25. DISPUTE RESOLUTION AND GOVERNING LAW: These Terms and Conditions, and the services provided by CALADEX under them, shall be governed by and subject to the applicable federal law of the United States and by the laws of the State of New York, without regard to the choice-of-law rules of that State or any other jurisdiction. The foregoing notwithstanding, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable by force of law. In the event of a direct conflict between these Terms and Conditions and a mandatory provision of any such Convention, the terms of such Convention shall control, but only to the extent of such direct conflict. CUSTOMER AND CALADEX AGREE THAT ANY CLAIM OR DISPUTE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER INTERNATIONAL CONVENTION, FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SERVING BUFFALO, NEW YORK. CUSTOMER AND CALADEX HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS. In the event Customer files an action against CALADEX, Customer hereby consents to any CALADEX-instituted transfer of such action to any other venue in which CALADEX is a party or subsequently becomes a party to an action concerning loss or damage to the Shipment that is the subject of Customer’s action. Should CALADEX successfully defend itself in any legal actions brought by any person with an interest in a Shipment, CALADEX shall be entitled to reasonable attorney fees and litigation expenses.