Terms and Conditions of Website and Software as a Service
Terminal 49, Inc., a Delaware corporation, (“Terminal 49,” “we,” “us,” or “our”), provides an online logistics platform through its website located at www.terminal49.com (the “Site”) and through its related services, including any new features and applications and affiliate websites, which platform allows users to manage and track of cargo and collaborate during and after the transportation of cargo and related services (the "Services"). These terms of service (as amended from time to time, the “Terms of Service”) govern access to and use of the Services and their contents by any person or entity which accesses or uses the Services (“User”, “you”, “your”). By accessing or using the Services, you accept these Terms of Service. If you do not agree to these Terms of Service for any reason, do not access or use the Services. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means.
Your continued use of any of the Services after any such modifications shall constitute your acceptance of these Terms of Service as modified.
Third Party Access to Customer's Shipments
Upon request of any entity that retains Terminal 49 to provide the Services (a “Customer”), Terminal 49 may grant limited access to one or more of Customer’s third party service providers (including but not limited to motor carriers, ocean carriers, freight brokers, freight forwarders, customs brokers, direct and indirect air carriers, equipment suppliers) to give such providers the ability to provide shipment status updates to the customer, or otherwise communicate with the customer, through the Services.
By accepting the request by Customer to receive limited access to the Services (or otherwise accessing or using the Services), any such third party User expressly assumes any and all risk related to such User's use of the Services, dissemination of information and documents via the Services, and access to information of Customer. In order to use the Services, User may be required to register for an account. User is responsible for maintaining the confidentiality of any login credentials associated with, and for all activities that occur under, such an account. Terminal 49 is not responsible for any actions of any such User or anyone accessing the system pursuant to login credentials associated to the account of any such User. User agrees to immediately notify Terminal 49 of any unauthorized use, or suspected unauthorized use, of User’s account.
Special Notice for International use; Export controls
The technology and software underlying the Services or available or distributed in connection therewith (the “Software”), and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. You download or use the Software at your sole risk. By sending us your data, you consent to its transfer to and storage within the United States. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
You agree not to use the Services to collect, upload, transmit, display, or distribute any information, data, and other content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party. In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (f) harass or interfere with another User’s use and enjoyment of the Services; or (g) introduce software or automated agents or scripts to the Services so as to generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services. Unless otherwise expressly authorized herein or in the Service, you shall not display, distribute, license, rent, lease, assign, host, perform, publish, post, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, disassemble, reverse compile or reverse engineer, download, transmit, transfer or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services. You shall not access the Services in order to build a similar or competitive service.
Terminal 49 has the right, but not the obligation, to monitor this Services for any conduct that violates this provision or any other provision of these Terms of Service and to take all appropriate actions in response, without notice to you. We reserve the right to change or supplement our policies as to acceptable and prohibited uses at any time to the fullest extent permitted by applicable law. If you are blocked by Terminal 49 from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited.
As consideration for access to the Services, and except as otherwise specifically provided in these Terms of Service, User shall defend, indemnify and hold harmless Terminal 49 (including its employees and agents) from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs and expenses (including reasonable legal fees) to the extent proximately caused by or resulting from User’s breach of these Terms of Service or the negligence or intentional acts of User, including its employees or agents, arising from, related to, or in connection with User’s use of the Services. The previous sentence, however, shall not apply to the extent that such claims, liabilities, losses, damages, fines, penalties, payments, costs or expenses are proximately caused by or result from the negligence or intentional acts of the Terminal 49, including its employees or agents. The User further agrees to indemnify, defend, and hold Terminal 49 harmless from any claims and/or liability arising from the importation or exportation of merchandise and/or any conduct that violates any Federal, State and/or other laws, regulations and/or compliance requirements. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the User to Terminal 49 to pay all charges or other money due promptly on demand.
Disclaimers, Release, and Limitations of Liability
THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND TERMINAL 49 EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. TERMINAL 49 MAKES NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
TERMINAL 49 RESERVES THE RIGHT, AT ANY TIME, TO MODIFY, SUSPEND, OR DISCONTINUE THE SERVICES OR ANY PART THEREOF WITH OR WITHOUT NOTICE. YOU AGREE THAT TERMINAL 49 WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF THE SITE OR ANY PART THEREOF.
YOU HEREBY WAIVE AND RELEASE TERMINAL 49 (AND TERMINAL 49’S SUPPLIERS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) FROM, AND HEREBY WAIVE AND RELINQUISH, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE ARISING FROM YOUR USE OF THE SERVICES, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES.
IN NO EVENT SHALL TERMINAL 49 BE LIABLE TO USER OR THIRD PARTY, AND USER SHALL INDEMNIFY TERMINAL 49, FOR ANY LIABILITY TO TERMINAL 49 FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF MARKET, LOSS OF GOODWILL, ASSEMBLY LINE SHUTDOWNS, OR SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES), ARISING FROM OR RELATING TO YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF TERMINAL 49 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES SOUNDS IN CONTRACT, TORT, BREACH OF WARRANTY, CONSUMER FRAUD, OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TERMINAL 49’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), SHALL NOT EXCEED FIFTY U.S. DOLLARS ($50.00).
Intellectual Property Rights
Service Content and Copyright
You acknowledge and agree that the Services may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other intellectual or other proprietary rights and laws.. The Software is the property of Terminal 49, our affiliates and our partners.
All content on our Services is the intellectual property of Terminal 49 or other parties and is protected by copyright and other intellectual property law. All trademarks, logos and service marks (“Marks”) displayed on the Services are Terminal 49 property or the property of other third parties. The Terminal 49 name and logos are trademarks and service marks of Terminal 49 (collectively the “Terminal 49 Trademarks”). Other Terminal 49, product, and service names and logos used and displayed via the Services may be trademarks, logos or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Terminal 49. You are not permitted to use these Marks without Terminal 49’s prior written consent or the consent of such third party which may own the Marks. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Terminal 49 Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Terminal 49 Trademarks will inure to our exclusive benefit.
Third Party Sites and Advertisements
The Services might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Advertisements”). Such Third Party Sites & Advertisements are not under the control of Terminal 49 and Terminal 49 is not responsible for any Third Party Sites & Advertisements. Terminal 49 provides these Third Party Sites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Advertisements. You use all Third Party Sites & Advertisements at your own risk. When you link to a Third Party Site & Advertisement, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Advertisements.
No Duty to Maintain Records For User
User acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended (19 USC §1508 and §1509), Terminal 49 has no duty to and is not solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, Terminal 49 shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a "record keeper" or "record keeping agent" for User.
These Terms of Service shall be interpreted in accordance with the laws of the State of California, except to the extent superseded by applicable federal law, disregarding any choice-of-law principle under which that State would look to the laws of another jurisdiction.
In the event of any dispute arising out of these Terms of Service, Terminal 49’s and/or User's sole recourse (except as provided below) shall be to arbitration under the rules of the American Arbitration Association (“AAA”). Alternatively, if mutually agreed upon by Terminal 49 and User, arbitration may be conducted under the rules of the Transportation ADR Council, Inc. (“TAC”), or Transportation Arbitration & Mediation PLLC (“TAM”). The decision of the arbitrators shall be binding and final and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. Attorney’s fees and costs shall be awarded to the prevailing party in arbitration or any action to enforce an award of arbitration. Arbitration proceedings shall be conducted at the offices of the AAA in San Francisco, California, or arranged by TAC or TAM, or such other place as mutually agreed upon in writing. Provided, however, it is agreed that prior to the formation of the arbitral panel, either party may apply to a court of competent jurisdiction for injunctive relief. Unless preempted by Federal Bankruptcy Law, the laws of the State of California shall be controlling. This paragraph shall not apply to enforcement of the award of arbitration.
To the extent that any provision of these Terms of Service may be held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Service and the remainder shall continue in full force and effect.. The court’s holding shall not be treated as affecting the validity or enforceability of any other provision of these Terms of Service, nor as affecting the validity or enforceability of any part of these Terms of Service in other jurisdictions.
Neither the failure of a party to exercise any right, power or privilege under these Terms of Service, nor its delay in any such exercise, shall operate as a waiver of that right, power or privilege. No such waiver shall be binding on either party unless it is in writing and signed by the party against which the waiver is asserted. No such waiver on one occasion shall preclude subsequent full enforcement of a party’s rights, powers and privileges under these Terms of Service or at law or in equity.
By using any service of Terminal 49, or send e-mails, text messages, and other communications from the desktop or mobile device to Terminal 49, User is communicating with Terminal 49 electronically. User consents to receive communications from Terminal 49 electronically, such as e-mails, texts, mobile push notices, or notices and messages on this Site or through the other Services, such as Terminal 49’s customer support online chat, and User can retain copies of these communications for its records. User agree that all agreements, notices, disclosures, and other communications that Terminal 49 provides to User electronically satisfy any legal requirement that such communications be in writing.
Feedback and Submissions
If you provide Terminal 49 with any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Services (“Feedback”), you hereby assign to Terminal 49 all rights in the Feedback and agree that Terminal 49 shall have the right to use such Feedback and related information in any manner it deems appropriate. Unless otherwise required under these Terms of Service, Terminal 49 has no obligation to review, respond to, resolve complaints or issues identified in, or otherwise address any Feedback you provide. Terminal 49 will treat any Feedback you provide to Terminal 49 as non-confidential and non-proprietary. You agree that you will not submit to Terminal 49 any information or ideas that you consider to be confidential or proprietary.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
If you enter into or otherwise agree to a Saas Services Agreement or Terms and Conditions of Property Broker Service, then that separate Saas Services Agreement or Terms and Conditions of Property Broker Service shall prevail and govern (with respect to your use of the Services or otherwise) to the extent any term of the Saas Services Agreement or Terms and Conditions of Property Broker Service conflicts with these Terms of Service. To the extent you access the Service without having entered into a separate Saas Services Agreement or Terms and Conditions of Property Broker Service, these Terms of Service shall constitute the entire agreement of the parties with reference to the subject matters herein.
BY ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO ABIDE BY THESE TERMS OF SERVICE.Terms and Conditions of Property Broker Service
Unless expressly superseded by a written contract signed by an officer of Terminal49 (“BROKER”) and the shipper, consignor, consignee, or any other entity claiming an interest in goods for which BROKER arranges transportation (“SHIPPER”) these Terms and Conditions of Property Broker Service (“Terms”) shall govern the arrangement by Terminal49 of for-hire motor carrier transportation to be performed by third party motor carrier ( such arrangement by Terminal49, the “Services”). Any terms and conditions on any load confirmation or similar document exchanged between the parties other than these Terms and Conditions, as revised from time to time, shall not apply to any Services and shall not be binding on or applicable to BROKER. SHIPPER understands and agrees that BROKER functions as an independent entity, and not as a carrier, in selling, negotiating, providing and arranging for transportation for compensation, and that the actual transportation of shipments tendered to BROKER shall be performed by third-party motor carriers (“Servicing Motor Carriers”). BROKER and SHIPPER represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in these Terms and Conditions shall be deemed to require BROKER to provide Services upon request of SHIPPER and BROKER reserves the right to accept or decline, in its sole discretion, any particular request for Services. SHIPPER acknowledges and agrees that BROKER has no responsibility to make or arrange for any filings, and is not responsible for the content of any filings, made by or on behalf of SHIPPER with any governmental agency including, but not limited to, any filings, disclosures, or licensing related to export or import of goods. BROKER is not a customs broker, and does not engage in “customs business” as defined in 19 C.F.R., nor does BROKER provide any denied party screening or services related to identifying contraband or other commodities prohibited from import or export.
COMPLIANCE WITH LAW
BROKER represents and warrants that it is duly and legally qualified to operate as a property broker and to provide the Services contemplated herein. BROKER agrees to comply with all applicable federal, state and local laws regarding the provision of such brokerage Services. SHIPPER warrants and represents that it is authorized to tender the cargo in question to BROKER, that it is authorized to arrange for transportation of the cargo in accordance with these terms, and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation. Furthermore, SHIPPER warrants that all goods are packaged in accordance with any and all applicable laws, rules and regulations and in such a manner so as to withstand the normal rigors of transport. Without in any way limiting the foregoing, if SHIPPER tenders for transportation cargo designated as hazardous materials or dangerous goods, SHIPPER shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Services is first initiated by SHIPPER to BROKER. When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), SHIPPER shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of food and, at the time of the initial request for services with respect to the individual shipment, will provide written notice (each a “Food Handling Notice”) to BROKER that the consignment contains Food which Food Handling Notice must also include any special instructions or handling requirements to be imposed on the Servicing Motor Carrier. Any such Food Handling Notice shall specifically identify the consignment to which it relates and in no event shall any Food Handling Notice apply to more than one shipment regardless of whether BROKER confirms receipt of a Food Handling Notice purporting to apply to multiple conveyances. In no event will BROKER have any obligation to provide any instructions to the Servicing Motor Carrier with respect to cargo other than those expressly noted by the SHIPPER provided in writing to BROKER with the initial request for Services with respect to which the handling instructions relate and BROKER has no obligation to comply with or pass on to the Servicing Motor Carrier any handling instructions received after the initial request for service. If SHIPPER does not provide a Food Handling Notice, SHIPPER warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier.
PAYMENT AND CHARGES
BROKER will charge and SHIPPER will pay the rates and charges stated in an order receipt confirmation provided by BROKER. SHIPPER agrees to pay BROKER without offset and within fifteen (15) days of receiving the invoice, with interest accruing monthly at a rate of two percent (2%) per month on any unpaid balance. SHIPPER shall also be liable for any expenses, including attorney fees, BROKER incurs in collecting its rates and charges. SHIPPER shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by BROKER at the time BROKER arranged for services with Servicing Motor Carrier or which were not otherwise included in the agreed upon rate. If any information provided by SHIPPER is inaccurate or incomplete, SHIPPER acknowledges and agrees that agreed upon rates may, in BROKER’s sole discretion, be revised to reflect the goods actually tendered. Any claim of overcharge, duplicate payment, or overcollection must be filed by SHIPPER with BROKER within one-hundred and eighty (180) days of the date of BROKER’s invoice. BROKER shall have a general and continuing lien on any and all property of SHIPPER coming into BROKER’s or the Servicing Motor Carrier’s actual or constructive possession or control for monies owed to BROKER relating to the shipment on which the lien is claimed and/or any prior shipments; further BROKER shall provide written notice to SHIPPER of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges. SHIPPER shall notify all parties having an interest in its shipment(s) of BROKER’s rights and/or the exercise of such lien. SHIPPER further agrees that unless, within thirty days of receiving notice of lien, SHIPPER posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of BROKER, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, BROKER shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to SHIPPER.
INDEMNIFICATION, WARRANTIES AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR DAMAGES ARISING FROM BUSINESS INTERRUPTION, REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BROKER WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE FOR THE AMOUNT CHARGED BY BROKER WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. SHIPPER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BROKER FROM AND AGAINST, AND SHALL PAY AND REIMBURSE BROKER FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY SHIPPER OF THESE TERMS AND CONDITIONS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF SHIPPER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY SHIPPER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) SHIPPER’S FAILURE TO PROVIDE, OR BROKER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF SHIPPER. THE FOREGOING NOTWITHSTANDING, SHIPPER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF BROKER. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. BROKER IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTITY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
BROKER sole responsibility with respect to selection and retention of Servicing Motor carriers is to make reasonable efforts to place SHIPPER’s loads with responsible Servicing Motor Carriers: (i) authorized to perform the services required by SHIPPER; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. BROKER makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by SHIPPER.
BROKER shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement.
CARGO LOSS, DAMAGE, OR SHORTAGE
SHIPPER acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay. It will be SHIPPER’s responsibility to insure product in-transit and SHIPPER acknowledges that if SHIPPER wishes to declare excess value higher than the Servicing Motor Carrier’s limitation, BROKER will have no responsibility to do so and it will be SHIPPER’s responsibility to do so directly with the Servicing Motor Carrier. BROKER may facilitate claims filing and processing with the Servicing Motor Carrier if SHIPPER submits to BROKER, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. BROKER may, in its sole discretion and without liability to SHIPPER, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by BROKER or if SHIPPER, in BROKER’s sole discretion, fails to cooperate with BROKER in filing of claims with the Servicing Motor Carrier. If cargo is loaded outside of the presence of a representative of the Servicing Motor Carrier, or the representative of the Servicing Motor Carrier is not otherwise able to monitor the loading, the load will be considered to be moving on a “shipper load and count” basis regardless of whether the load is sealed, and regardless of whether “SLC” or a similar designation appears on the bill of lading or other receipt. For all cargo moving on a shipper load and count basis, there will be no liability on the part of BROKER or the Servicing Motor Carrier if the trailer or container is delivered with the sale in-tact, or if the seal is broken upon order of, or under the supervision of, the body politic unless the claimant can prove, by clear and convincing evidence, that such shortage arose during transit. SHIPPER acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken trailer seal, shall not, in and of itself, be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. BROKER SHALL HAVE NO LIABILITY FOR CARGO LOSS, DAMAGE, OR SHORTAGE EXCEPT TO THE EXTENT SUCH CLAIMS ARE CAUSED BY BROKER’S NEGLIGENT ACTS OR OMISSIONS, IN WHICH CASE, BROKER’S LIABILITY SHALL BE LIMITED TO THE CHARGES ASSESSED BY BROKER AND PAID BY SHIPPER WITH RESPECT TO THE GOODS AT ISSUE. SHIPPER IS RESPONSIBLE FOR FILING A CLAIM WITH BROKER ALLEGING BROKER’S LIABILITY FOR CARGO LOSS AND DAMAGE WITHIN SIX (6) MONTHS OF THE DATE OF DELIVERY OF THE CARGO IN QUESTION (OR, IF NONE, WITHIN SIX (6) MONTHS OF THE DATE CARGO SHOULD HAVE BEEN DELIVERED). FAILURE TO DO SO WILL RESULT IN AN ABSOLUTE BAR TO ANY SUCH CLAIM AND WILL RELIEVE BROKER OF ANY AND ALL LIABILITY WITH RESPECT THERETO. IN NO EVENT WILL BROKER HAVE ANY LIABILITY ARISING FROM OR RELATED TO THE SERVICING MOTOR CARRIER’S REFUSAL TO ACCEPT FULL VALUE LIABILITY OR THE SERVICING MOTOR CARRIER OTHERWISE LIMITING ITS LIABILITY FOR CARGO LOSS AND DAMAGE. BROKER shall be under no obligation to arrange, and Servicing Motor Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; BROKER’s sole obligation is to ensure Servicing Motor Carriers provide services with reasonable dispatch. Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. SHIPPER acknowledges and agrees that the sole liability of BROKER with respect to loss, damage or delay to cargo shall be as set forth in this provision and SHIPPER warrants and represents that if it is not the owner of such cargo, SHIPPER holds authority from such owner to bind the owner to the provisions of these Terms and Conditions.
Shipments tendered hereunder may be accepted by the Servicing Motor Carrier on a bill of lading or similar transportation document setting forth the respective legal rights and obligations of SHIPPER and the Servicing Motor Carrier. In no event shall the terms or conditions of any such bill of lading or other document used by SHIPPER and the Servicing Motor Carrier apply to BROKER’s Services or otherwise be binding on BROKER. Upon request of SHIPPER, BROKER shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery.
NOTIFICATION OF ACCIDENTS OR DELAYS
BROKER agrees to notify SHIPPER of any accident or other event of which BROKER is apprised and which prevents the motor carrier from making a timely or safe delivery.
If BROKER is prevented from or delayed in performing the Services by reason of statutes, regulations or orders of a governmental entity (including actions taken by a court or by law enforcement officials), or by acts, events, omissions or accidents beyond its control, including war, terrorism, acts of God, labor and industrial disturbances, civil unrest, failure of a utility service or transport network including reduction in bandwidth, economic occurrences, or any cause beyond the reasonable control of BROKER, BROKER shall not be liable for damages by reason of any delay or suspension of performance resulting from such legal restraints or force majeure.
These Terms and Conditions shall be deemed to have been drawn in accordance with the statutes and laws of the state of California and in the event of any disagreement or dispute regarding services subject to these Terms and Conditions, to the extent not otherwise governed by federal law, the laws of California shall apply and suit must be brought in California as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes arising from or related to provision of, or failure to provide, the Services. SHIPPER waives access to BROKER’s records pursuant to 49 C.F.R. Part 371.
Neither the failure of a party to exercise any right, power or privilege under these Terms, nor its delay in any such exercise, shall operate as a waiver of that right, power or privilege. No such waiver shall be binding on either party unless contained in a written contract signed by an officer of Terminal49. No such waiver on one occasion shall preclude subsequent full enforcement of a party’s rights, powers and privileges under these Terms or at law or in equity.