Terms of Service
Freight Brokerage T&C
InstiCo Logistics if a full service freight broker that offers our customers FTL, LTL and Intermodal solutions across the United States, Canada, and Mexico. Our team of dedicated professionals works with thousands of carriers across the country to maximize backhaul opportunities in order to offer our customers competitive rates and consistent service. Our team understands seasonal trends and works closely with our carriers to provide our customers with market information to make real-time decisions. We deliver on every committment, and when we accept a load, we move it. When your freight needs to be moved, Go with InstiCo.
InstiCo Logistics MC 769661 Terms and Conditions
The enrolled Customer, Shipper and/or Consignee (hereinafter collectively referred to as “Customer”) agrees to these TERMS AND CONDITIONS which no agent or employee of the parties may alter. These TERMS AND CONDITIONS shall apply to this and all future shipments scheduled by Customer, unless and until these TERMS AND CONDITIONS are altered or amended by the Organization’s issuance of new TERMS AND CONDITIONS.
The General Rules Tariffs, set forth by the carriers provided as Solutions with the Organization, will in every instance take precedence in all legal proceedings and when applicable, will take precedence over the Organization’s TERMS AND CONDITIONS stated herein. If not stated within the carrier’s General Rules Tariff, the Organization’s TERMS AND CONDITIONS as stated herein shall control. In the case of conflict between the TERMS AND CONDITIONS contained herein and those set forth by the individual selected carrier’s General Rules Tariff, the selected carrier’s General Rules Tariff shall control. All Terms, including, but not limited to, all the limitations of liability, shall apply to the selected carrier and their agents and contracted carriers. The Organization is a freight broker and NOT a freight carrier. The Organization reserves the right, in its sole discretion, to refuse any shipment at any time
1. Bills of Lading
All Bills of Lading are NON-NEGOTIABLE and have been prepared by the enrolled Customer or by (“The Organization”) as Customer’s agent on behalf of the Customer and shall be deemed, conclusively, to have been prepared by the Customer and to bind Customer. Any unauthorized alteration or use of Bills of Lading or tendering of shipments to any carrier other than that designated by the Organization, or the use of any Bill of Lading not authorized or issued by the Organization shall VOID the Organization’s obligations to make any payments relating to this shipment and VOID all rate quotes.
2. Customer’s Warranties
The Customer is responsible for and warrants their compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. Customer further warrants that it is registered and in compliance with the security plan and training requirements, and any amendments related thereto, related to hazardous materials, 49 C.F.R. #172.701-704, and 49 C.F.R. #172.800-804. Customer further warrants that it will immediately advise Company in the event that its registration and/or compliance with these regulations expires or are terminated. The Customer agrees to furnish such information and documentation as necessary to establish its compliance with such laws, rules and regulations. The Organization assumes no liability to the Customer or to any other person for any loss or expense due to the failure of the Customer to comply with this provision. Any individual or entity acting on behalf of the Customer in scheduling shipments hereunder warrants that it has the right to act on behalf of the Customer and the right to legally bind Customer. Customer agrees to indemnify Company for any and all claims or damages incurred as a result of Customer’s failure to comply with the provisions of this provision.
3. Necessary Documentation
The Customer is required to use the Organization’s system generated Bill of Lading for LTL. If the Customer does not complete all the documents required for carriage, or if the documents which they submit are not appropriate for the services, pick up or destination requested, theCustomer hereby instructs the Organization, where permitted by law, to complete, correct orreplace the documents for them at the expense of the Customer. However, the Organization is not obligated to do so. If a substitute form of Bill of Lading is needed to complete delivery of this shipment and the Organization completes that document, the terms of this Bill of Lading will govern. The Organization is not liable to the Customer or to any other person for any actions taken on behalf of the Customer under this provision.
All charges are payable in US Dollars and are due and payable fourteen (30) days from the date of billing, and any payment which is past due shall be subject to an additional charge at the rate of 1-1/2% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by the Organization will be applied based on the remittance. In the event the Organization retains an attorney or collection agency to collect unpaid charges or for the enforcement of these Terms and Conditions, all unpaid charges will be subject to a late payment penalty of 33% and Customer shall also be liable for all attorneys and collection agency fees incurred, together with related costs and expenses. All shippers, consignors, consignees, freight forwarders or freight brokers are jointly and severally liable for the freight charges relating to this shipment. All Customers are subject to credit approval. The Organization intends to perform a credit check based on the information provided at the time of enrollment by the Customer. The amount of credit, if any, granted to the Customer is at the sole discretion of the Organization. When paying by credit card or electronic funds, the Customer agrees they will be responsible for all charges payable, including any adjustments, on account of such Customer’s shipment. These charges and adjustments, if any, will be automatically debited to the Customer’s credit card or bank account. The Customer shall be liable, jointly and severally, for all charges payable on account of such Customer’s shipment, including but not limited to transportation, fuel and other applicable accessorial charges, including all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and Organization’s attorney fees and legal costs allocable to this shipment and/or all disputes related thereto. Unless otherwise agreed, Brokers scheduling shipments for clients shall be liable, jointly and severally, for all charges payable on account of such client’s shipment. The Organization shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer. The Organization reserves the right to amend or adjust the original quoted amount or re-invoice the Customer if the original quoted amount was based upon incorrect information provided at the time of the original quote or if additional services by the carrier were required or otherwise authorized by the Customer to perform the pick up, transportation and delivery functions therein. Customer is permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges. If the Organization does not receive a dispute within the allowable thirty (30) business days, the disputed item will be denied by the Organization.
Note: As part of the anti-terrorism rules / regulations, inspection of freight that moves cross border (to or from Canada or Mexico) may result in carriers (LTL, TL and Intermodal) applying charges to shipments inspected by US Customs. These random inspections are not known at time of shipment and therefore are excluded from all quotes. Any applicable costs associated with random border inspections will be the responsibility of the customer.
5. Claims and Limitations of Liability
The Organization will act as the primary point of contact for claims and ensure that all claims are filed and processed in accordance with 49 C.F.R. 370. All claims should be submitted immediately to the Organization to help ensure timely resolution. The Organization will use commercially reasonable efforts to assist and cooperate with Customer to investigate and process any freight loss or damage claims and any claim for damage to our customer’s property occurring in the course of the transportation services rendered to such Customer. The liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. 14706. The individual carrier’s governing General Rules Tariff determines the standard liability cargo insurance coverage offered by all carriers. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the otherwise standard liability coverage. The Organization’s liability for loss, delay or damage to shipper’s goods extends only to the insurance coverage provided by the carrier’s primary cargo insurance and secondary the brokerage’s contingent cargo insurance. While the Organization carries such contingent cargo insurance, the maximum amount that Customer will receive on a claim will be that that which is recoverable under the respective transportation tariffs. The Organization will not be responsible in any way for claims arising out of Customer negligence. The Organization also has available for purchase by the Customer, upon request, shipper’s interest cargo insurance. The filing of a claim does not relieve the responsible party for payment of freight charges. Freight payment is necessary in order for a carrier to process a claim. Customer may not offset freight or other charges owed to Organization against claims for any loss, damage, miss-delivery or non-delivery. The Organization has a lien on funds recovered through the processing of damage claims and reserves the right to apply recovery amounts to open past due invoices on account.
6. Forum Selection and Choice of Law
Any claim, dispute or litigation relating to these Terms and Conditions, any shipment scheduled or tendered hereunder or through the Organization’s website, or relating to any and all disputes between the Organization and the enrolled Customer, Shipper and/or Consignee and/or Brokers for any enrolled Customer, Shipper and/or Consignee, shall be filed in the state of Texas.
LTL rates are based on the freight class as determined by the NMFC (National Motor Freight Classification) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. TL rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are state to state and mileage based. Additional fees may apply for charges including but not limited to, Tractor Detention, Trailer Detention, and Driver Assistance. Providing 48-hour notice is given, the Organization will make every possible attempt to cover Truckloads within 48 hours of Customer’s requested pickup, excluding weekends and holidays, weather or national emergency. Trade show shipments cannot be guaranteed. Truckload cancellations require 24 hour notice to avoid penalty. Once InstiCo has contracted with a carrier to move a truckload shipment, the scheduled load must be tendered to the carrier as requested on the bill of lading at the agreed upon price, or a equipment not used (EON) fee of up to $250 USD will be assessed.
OTHER ACCESSORIAL CHARGES THAT MAY APPLY TO TRUCKLOADS INCLUDE:
- Extra stops for each stop is $100 USD
- Detention time to load and/or unload: 2 free hours then $75/hour
- Driver load/unload: $150/occurrence
- Reconsignments/Refusal: flat $75 plus $2.00 for all additional miles.
- Layover Single/Team
- Overnight $500/ $800
- Weekend $1500/$2250
- Air Freight rates are based on the greater of actual or dimensional weight.
- If an Air Freightshipment contains oversize freight, additional charges and transit days may apply.
- Van Line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type.
- Van Line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type.
- All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
8. The Organization assumes no liability
and in no event shall be responsible for any carrierbilling, rating, and tariff inaccuracies. To ensure that all quotes remain current and accurate, please provide the Organization 15 day’s notice of any change to your carrier contracts, discounts, or tariffs.
9. Guaranteed Services
LTL Guaranteed Services are inclusive of transit times only as noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or no service days as defined by the individual carrier. This service is not a guarantee for Pickup. Pickup Day is not included in the qualification and calculation of LTL transit time. The Customer is liable for all charges related to the shipment. In the event of carrier failure to comply with the guaranteed service requested, the Customer is permitted ten (10) business days from the actual delivery date of shipment to file a claim request in writing with the Organization. If the Organization does not receive a claim request or receives the request after the allowable ten (10) business days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will automatically be considered invalid and denied. In the event of carrier failure to comply with the guaranteed service requested and after the carrier has agreed to liability, the Organization will credit the account of the said Customer. In no event shall the Organization be liable nor will any account be credited if the Customer does not use the Organization’s Bill of Lading.
10. Cargo Liability Insurance
FAILURE TO PURCHASE ADDITIONAL CARGO INSURANCE WILL RESULT IN SHIPPER BEING LIMITED TO RECOVERY PURSUANT TO THE TERMS OF CARRIER’S GENERAL RULES TARIFF. THE ORGANIZATION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO DELIVERIES OR WITH REGARD TO THIS WEBSITE, INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. THE ORGANIZATION CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, THE ORGANIZATION SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT THE ORGANIZATION HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED
Air Freight T&C
All shipments to or from Shipper (which term includes the exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments or the agent thereof) will be handled by the handling this shipment, InstiCo Freight Management, Inc., any of its affiliate or dbas, including, but not limited to, InstiCo Global Logistics and InstiCo Logistics (the “Company”) on the following terms and conditions. No agent or employee of either party may alter or waive any of the following terms or conditions:
1. Choosing Routes and Agents.
Company shall have complete freedom in choosing the means, route and procedure to be followed in the handling, transportation and delivery of the goods. If Shipper requests motor carrier service or if Company decides that Shipper’s shipment should be transported by motor carriage rather than air for all or part of the transportation, Company shall arrange with an authorized motor carrier(s) to perform such transportation, which shall be done either as exempt carriage as defined by 49 U.S.C. § 13506(a)(8), or, if not exempt, as “contract carriage” within the meaning of 49 U.S.C. § 13102(4)(B) under these terms and conditions. Shipper expressly waives all rights and remedies it may have as to Company and its appointed 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. Advice by Company to Shipper that a particular person or firm has been selected to render services as to the goods shall not be construed to mean that Company warrantsor represents that such person or firm will render such services.
2. Services by Third Parties.
Unless Company carries, stores or otherwise physically handles the shipment, and the loss, damage, expense or delay occurs during such activity, Company assumes no liability as a carrier and shall not be held liable for any loss, damage, expense or delay to the goods shipped hereunder, except as provided in and subject to the limitations of Paragraphs 8 and 9. Company undertakes only to use reasonable care in the selection of carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling, delivery and/or storage or otherwise. When Company carries, stores or otherwise physically handles the shipment, including in the performance of any local pick-up or delivery services, it does so subject to the limitation of liability set forth in Paragraph 8 unless a separate bill of lading, air waybill or other contract is issued by Company, in which event the terms thereof shall govern.
3. Acknowledgment of the Role and Limitations of Third Parties.
Company is authorized to select and engage carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen, and others as may be required, to transport, store, deal with and deliver the goods, all of whom shall be considered as agents of Shipper. The goods may be entrusted to such parties subject to all conditions as to limitations of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped,appearing in bills of lading, receipts or tariffs issued by such carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen and others. Company shall in no event be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when such goods are in the custody, possession or control of third parties selected by Company to forward, enter and clear, transport or render other services with respect to such goods.
4. Shipments Subject to Re-Weigh/Re-Measurement.
Shipper shall provide weight and measurements for its shipments. Shipments are subject to re-weigh and re-measurement by Company. If the weight and/or measurement of the goods as delivered are different from Shipper’s representations, or if pick-up or delivery time or location is changed by Shipper, Company’s rates, charges and fees are subject to change. If dimensional weight applies, dimensions shall be shown on the air bill as follows: Length x Width x Height = Cubic Inches (or applicable metric measurement). Customer shipments will be rated at dimensional or actual weight, whichever is greater based on a domestic factor of 200 and an international factor of 166.
5. Shipper’s Duty to Furnish Information.
(a) On an import, at a reasonable time prior to entry of the goods to U.S. Customs, Shipper shall furnish to Company invoices in proper form together with other documents necessary or useful in the preparation of the U.S. Customs entry, and such further information as may be sufficient to establish the dutiable value, classification and admissibility of the goods pursuant to U.S. law, regulation or ruling. If Shipper fails to timely furnish all such information or documents, as may be required to complete U.S. Custom entry, or if such information or documents is inaccurate or incomplete, Company shall be obligated to use its best judgment in connection with the shipment. Where a bond is required by U.S. Customs to be given for the production of any document or the performance of any act, Shipper shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by Company as principal, it being understood that Company entered into such undertaking at the request and on behalf of Shipper, and Shipper shall indemnify and hold Company harmless for the consequences of any breach of the terms of the bond.
(b) On an export, at a reasonable time prior to the exportation of the shipment, Shipper shall furnish to Company the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods.
(c) On an export or import, Company shall not in any way be liable for increased duty, penalty, fine or expense unless caused by the gross negligence or other fault of Company, in which event its liability to Shipper shall be governed by the provisions of Paragraph 8. Shipper shall be bound by and warrant the accuracy of all invoices, documents and information furnished to Company by Shipper or its agents for export, entry or other purposes and Shipper agrees to indemnify and hold harmless Company against any increased duty, penalty, liquidated damages, fine or expense, including attorneys fees, resulting from any inaccuracy or omission or any failure to make timely presentation, even if not due to any negligence or fault of Shipper. The submission of incomplete or inaccurate information related to an import entry, including descriptions quantities, weights, purchase prices, discounts, commissions, charged selling prices at time of exportation, assists, country of origin, etc., makes Shipper liable to severe government penalties or sanctions. In the event the information forwarded to Company, or which accompanied the shipment does not accurately reflect the entire transaction, Shipper shall immediately notify us so that Company can take corrective action.
6. Declaring Higher Valuation.
Shipper acknowledges and agrees that motor carriers, carriers, warehousemen and others to whom the goods are entrusted usually limit their liability for loss or damage unless a higher value is declared and a charge based on such higher value is agreed to by said motor carriers, etc. Company must receive specific instructions from Shipper to pay such higher charges based on valuation and the motor carrier, etc., must accept such higher declared value; otherwise the valuation placed by Shipper on the goods shall be considered solely for export or customs purposes and the goods will be delivered to the motor carriers, etc., subject to the limitations of liability set forth in Paragraphs 3 and 8.
Company will not arrange to insure the goods unless specific written instructions from Shipper providing the kind and amount of insurance have been received and acknowledged by Company in sufficient time prior to shipment from point of origin. Company does not undertake or warrant that such insurance can or will be placed. Unless Shipper instructs Company to effect insurance under Shipper’s own open marine policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by Company. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies and underwriters. Insurance coverage provided by Company will be assessed at a rate negotiated between the parties separate from any freight charges. Insured value is not to exceed the actual value of the goods. Shipments must be packaged to withstand the normal hazards of transportation for any claim to be valid. In the event Shipper does not elect to insure all or part of a shipment, Company’s liability for any losses, damages or delays to such shipment shall be limited in accordance with the provisions of Paragraph 8. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and Company shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to Company by Shipper, or that the shipment was insured under a policy in the name of Company. Insurance premiums and the charge of Company for arranging the same shall be at Shipper’s expense. Insurance coverage is not available through the Company on bullion, precious metals, precious metal objects, gold, silver, platinum, precious or semi-precious stones (including but not limited to diamonds, emeralds, sapphires and rubies), and precious jewelry which includes jewelry made from precious metals and stones and does not include jewelry made from inexpensive metals or materials and imitation or semi-precious stones; money, securities, accounts, bills, currency, food stamps, lottery tickets, notes, bank notes, coins, bonds, negotiable instruments or evidences of debt, passports, tickets, documents, manuscripts, records, or other valuable papers; contraband – we do not cover contraband or property in the course of illegal transportation or trade; vehicles – we do not cover loss of or damage to the transporting vehicle or vehicles. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by any insurance, unlessCompany receives written instructions from Shipper and same is provided in accordance with this Paragraph 7. Unless specifically agreed in writing by Company, Company assumes no responsibility to effect insurance on any export or import shipment which it does not handle.
8. Limitation of Liability Per Shipment.
(a) In connection with any international shipments in which Company provides services as a carrier, Company’s liability shall be limited in accordance with any applicable international carriage of goods convention as noted in Paragraph 24 below.
(b) In connection with all other instances, including shipments within the United States its Territories, and insular possessions, as well as in any instance involving an international shipment in which the terms of an international carriage of goods convention do not apply, Shipper agrees that Company shall in no event be liable for any loss, damage, expense or delay to the goods for any reason, including as a result of the gross negligence or other fault of Company, for any amount in excess of $.50/pound, $50 per shipment, or the invoice value, whichever is less, and any partial loss or damage for which Company may be liable shall be adjusted pro rata on the basis of such valuation
(c) As to any shipments under this agreement, Shipper has the option in Paragraphs 6 and 7 above of paying special compensation to increase the liability for the shipment in excess of the above stated amounts in case of any loss, damage, expense or delay, but such options can be exercised only by specific written agreement made with Company prior to shipment which agreement shall indicate the declared agreed value and the additional compensation for the added liability to be assumed. COMPANY SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR PUNITIVE OR EXEMPLARY DAMAGES OR CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING ROM LOSS OF PROFIT.
9. Liability of Company
It is agreed that any claim or demand for loss, damage, expense or delay shall be only against the carriers, motor carriers, forwarders, customhouse brokers, agents, warehousemen or others in whose actual custody or control the goods may be at the time of such loss, damage, expense or delay, and that Company shall not be liable or responsible for any claim or demand from any cause whatsoever, unless in each case the goods were in the actual custody or control of Company and the damages alleged to have been suffered be proven to be caused by the negligence or willful misconduct of Company, its officers or employees, in which event the limitation of liability set forth in Paragraph 8 shall apply.
10. Presenting Claims
To preserve a claim, the following must be adhered to:
(a) As to all shipments within the United States its Territories, or insular possession, claims for lost or damaged shipments must be made within two hundred seventy (270) days of the shipping date. Initial notification of visible damage to the shipment must be made in writing on the bill-of-lading by Shipper or the consignee at the time of delivery, and a signed receipt absent such notation shall be proof of apparent good order and condition at delivery. Notification of concealed damage must be made to Company within 24 hours of receipt of delivery of the shipment. Original shipping carton and contents must be retained by the consignee for inspection. Claims for overcharges must be presented to Company within 60 days of the shipping date.
(b) As to all shipments for export or import, in no event shall Company be liable for any act, omission or default by it in connection with an exportation or importation, unless a claim therefor shall be presented to it at its office at 3011 Gateway, St. 340, Irving, TX 75063 within ninety (90) days from date of exportation or importation of the goods in a written statement to which sworn proof of claim shall be attached. No suit to recover for any claim or demand made under (a) or (b) of this Paragraph shall, in any event, be maintained against Company unless instituted within one year after the presentation of the said claim, as above provided.
11. Advancing Money
Company shall not be obliged to incur any expense, guarantee payment or advance any money in connection with the importing, forwarding, transporting, storing or coopering of the goods, unless the same is previously provided to Company by Shipper on demand. Company shall be under no obligation to advance freight charges, customs duties or taxes on any shipment, nor shall any advance by Company be construed as a waiver of the provisions hereof.
12. Indemnification for Freight, Duties
In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against Company for ocean or other freight, duties, fines, penalties, liquidated damages or other money due arising from a shipment of goods of Shipper, Shipper agrees to indemnify and hold harmless Company for any amount Company may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including attorney fees, incurred by Company in connection with defending such claim or legal action and obtaining reimbursement from Shipper. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of Shipper to Company to pay all charges or other money due promptly on demand.
13. Sale of Perishable Goods
Perishable goods or live animals to be exported or which are cleared through customs concerning which no instructions for disposition are furnished by Shipper may be sold or otherwise disposed of without any notice to Shipper, owner or consignee of the goods, and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. In the event that any shipment is refused or remains unclaimed at the destination or any transshipping point in the course of transit or is returned for any reason, Shipper shall nevertheless pay Company for all charges and expenses in connection therewith. No provision hereof shall obligate Company to forward, enter or clear the goods or arrange for their disposal.
14. C.O.D Shipments
Goods received with instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise, or to collect on any specified terms by time drafts or otherwise, are accepted by Company only upon the express understanding that Company will exercise reasonable care in the selection of a bank, correspondent, carrier or agent to whom it will send such item for collection, and Company will not be responsible for any acts, omission, default, suspension, insolvency or want of care, loss, negligence, or fault of such bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection. Shipper must enter the amount of any Shipper’s C.O.D. which shall be collected subject to the fee and rules of the delivering carrier. Unless caused by Company’s willful or intentional misconduct, under no other circumstances shall Company’s liability relating in any way to Shipper’s C.O.D. exceed the limits of liability as set forth in Paragraph 8.
15. Shipper Liable for Fees
Notwithstanding any payment instructions given to Company, Shipper shall be responsible for all fees, costs, and charges of any kind hereunder if Company is unable to collect such charges, which shall include special handling fees, duties or taxes which have been advanced, from consignee or other third party within 45 days of delivery.
16. General Lien on Any Property
Company shall have a general lien on any and all property (and documents relating thereto) of Shipper, in its actual or constructive possession, custody or control or en route, for all claims for charges, expenses or advances incurred by Company in connection with any shipments of Shipper or storage of goods on behalf of Shipper or Consignee, even if previously delivered by Company, and if such claim remains unsatisfied for thirty (30) days after demand for its payment is made, Company may sell at public auction or private sale, upon ten (10) days written notice, sent certified or registered mail with return receipt requested from Shipper, the goods, wares and/or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amount due to Company. Any surplus from such sale shall be transmitted to Shipper, and Shipper shall be liable for any deficiency in the sale.
17. Compensation of Company
Payment terms are net due on receipt. Contract or special rates may be considered void and the shipment re-rated at full charges if the invoice is not paid in 30 days. Contract or special rates apply only to prepaid shipments unless specifically stated in a contract rate proposal. Invoicing hereunder while a shipment remains in transit shall not close out this agreement. The compensation of Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commission, dividends or other revenue received by Company from carriers, insurers and others in connection with the shipment. Surcharges, including, without limitation, fuel, peak season, security, or government-imposed charges, may apply as set forth in Company’s various surcharge rate sheets as may be published by Company on its website at www.insticogl.com and modified by Company in its sole discretion from time to time. If Shipper’s account is past due, Company is not obligated to refund any overcharges or pay any other obligation to Shipper and Company in its sole discretion, may apply any overcharge amounts or other payments Company agrees it owes Shipper, against the oldest outstanding invoices. In any referral for collection or action against Shipper for monies due to Company, upon recovery by Company, Shipper shall pay all expenses of collection and/or litigation, including reasonable attorneys’ fees, collection agency fees, and court costs. Any invoiced amounts not paid within thirty (30) days of the date of invoice shall accrue interest at the highest rate allowable by applicable law. All billing or invoice inquiries or disputes must be presented to Company within ninety (90) days of receipt of the invoice. All payment inquiries or disputes must be presented to the other party within ninety (90) days of receipt of payment. Any inquiries or disputes not presented within the time frames set forth herein shall be deemed waived. Notwithstanding the foregoing, Company may at any time offset any amounts owed or paid by the Shipper to Company against any amounts owed by Company to the Shipper, including, without limitation, unidentified payments and credits in the Shipper’s favor, duplicate payments by the Shipper, and accounts payable to the Shipper.
18. Picking Up Shipments or Samples
Company shall not itself be obligated to pick up a shipment from a carrier or a sample from U.S. Customs. Should Company render such a service for and on behalf of Shipper, Company shall not be responsible for loss or damage to the shipment unless it is in the actual custody and control of Company and the loss or damage is caused by the gross negligence or other fault of Company, in which event the limitation of liability set forth in Paragraph 8 shall apply.
19. No Responsibility For Governmental Requirements
It is Shipper’s responsibility to know and comply with all licensing, classification, valuation, marking and other Customs’ requirements, laws, regulations, and rulings enforced by the U.S. and any country having jurisdiction over a shipment, the laws and regulations of any applicable governmental agency, including but not limited to the U.S. Food and Drug Administration, and all other requirements, laws and regulations of any applicable country or governmental agency. Company shall not be responsible for action taken, liquidated damages, or fines or penalties assessed by any governmental agency against the shipment because of the failure of Shipper to comply with the laws, requirements or regulations of any country or governmental agency or with a notification issued to Shipper by any such agency.
20. Loss, Damage or Expense Due To Delay
Unless the services to be performed by Company hereunder are delayed by reason of the gross negligence or willful misconduct of Company, Company shall not be responsible for any loss, damage or expense incurred by Shipper because of such delay. In the event Company is at fault as above described, its liability is limited in accordance with the provisions of Paragraph 8.
21. Construction of Terms and Venue
The terms and conditions hereof shall be construed according to the laws of the State of Texas. SHIPPER AND COMPANY AGREE THAT ANY CLAIM OR DISPUTE ARISING BETWEEN THEM, WHETHER UNDER FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SERVING COLLIN COUNTY, TEXAS. SHIPPER AND COMPANY HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS.22. Proof of Delivery
Shipper agrees that a digitized signature or computer record of delivery receipt is acceptable as proof of delivery of any shipment hereunder.23. Level of Service
Unless Shipper properly elects Guaranteed Delivery services when tendering any shipment to Company, the shipment will automatically be shipped as a 5th-day p.m. shipment if shipped within the United States or its territories.
24. International Carriage of Goods Convention
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention or the Montreal Convention as defined herein, may be applicable. These Conventions govern, and in most cases limit, the liability of Company in respect of loss, damage, or delay to cargo. Under either applicable Convention, liability of Company per kilogram may be limited to 17 Special Drawing Rights, converted into national currency under applicable law, unless a higher value is declared in advance by the Shipper and a supplementary charge is paid if required pursuant to Paragraphs 6 and 7 above. “Warsaw Convention” means, (a) the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, 12 October 1929, or (b) that Convention as amended at The Hague, 28 September 1955, or (c) that Convention as amended at TheHague 28 September 1955 and by Montreal Protocol No. 1, 2, or 4 (1975), whichever may be applicable. “Montreal Convention” means the Convention for Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999.
25. Hazardous Materials and Dangerous Goods
All packages containing hazardous materials/dangerous goods shall be limited to the materials and quantities authorized for air transportation under the U.S. Department of Transportation hazardous materials transportation regulations(49 C.F.R. Parts 171, 172, and 173) and the current edition of the International Air Transport Association (IATA) Dangerous Goods Regulations (together “Regulations”). Shipper and its agents shall comply with the Regulations regardless of the routing or the mode by which the shipment is transported. Each shipment requiring a Shipper’s Declaration for Dangerous Goods under the Regulations shall be accompanied by properly executed documents in conformance with the requirements of the Regulations. If a shipment contains hazardous materials/dangerous goods, the contents shall be – and Shipper hereby certifies they are – fully and accurately described on the air waybill or other shipping document by proper shipping name and are classified, packaged, marked and labeled, and in proper condition for carriage byair (or, if tendered for other mode of transportation, then for carriage by such other mode) according to the Regulations and any other applicable national governmental regulations. Shipper hereby declares that all of the applicable air transport requirements have been met.
26. Transportation Security Administration.
Shipper acknowledges that Company, to the extent it serves as an indirect air carrier, is required by the United States Transportation Security Administration (“TSA”) to maintain an air cargo security program. Shipper herby authorizes and consents to all cargo tendered for transportation by air to be screened as required by TSA regulations (49 C.F.R. § 1548.9(b)) and in accordance with c (parts 1 and 2) and Company’s cargo security program, including any necessary breakdown of a shipment. Shipper shall disclose to Company if it is acting as agent, representative, broker, carrier, or other freight intermediaries for any other person or entity, and shall assist Company to comply with TSA requirements by enabling Company to obtain all necessary documents from such other person or entity, or otherwise qualify, such person or entity. If Shipper advises Company that Shipper or the originator of the shipment is an individual, Company will provide any required Privacy Act Notice.
27. Obligation to Pay Customs Charges
The following notice required is to be given pursuant to 19 CFR part 111.29(b)(1): If you are the importer of record, payment to the broker will not relieve you of liability for customs charges (duties, taxes, or other debts owed CBP) in the event the charges are not paid by the broker. Therefore, if you pay by check, customs charges may be paid with a separate check payable to the “U.S. Customs and Border Protection” which shall be delivered to CBP by the broker.
28. Quotations not Binding
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon the Company unless the Company in writing specifically undertakes the handling or transportation of the shipment at a specific rate.
29. Independent Contractor
Except for Customs entries and duties services performed pursuant to a power of attorney, Company shall operate as an independent contractor in performing services for Shipper.
30. Indemnity Against Liability Arising From the Importation of Merchandise
The customer agrees to indemnify and hold the Company harmless from any claims and/or liability arising from the importation of merchandise which violates any federal, state and/or other laws or regulations and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of claims by any government agency or private party. In the event that any actions, suit or proceeding is brought against the Company by any government agency or any private party, the Company shall give notice in writing to the Customer by mail at its address on file with theCompany. Upon receipt of such notice, the Customer at its own expense shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the Company.
31. Guaranteed Delivery
In the event Shipper has elected guaranteed delivery for a particular shipment, this Section 31 shall apply. If the Company has failed to deliver the particular shipment in the amount of time guaranteed, Shipper has up to fifteen (15) days from the date of the delivery of the shipment to seek refund or credit of the applicable transportation charges paid by Shipper for the particular shipment; provided however, Company will not be obligated to refund or credit Shipper’s transportation charges if the failure to deliver timely resulted from any of the following circumstances:
(a)The shipper’s failure to tender freight to Company within fifteen (15) minutes of the pick-up cutoff posted in the quote process.
(b)The unavailability or refusal of an appropriate or eligible person to accept delivery or sign for the shipment.
(c) The shipper’s failure to provide complete and accurate delivery address information.
(d) The shipper’s failure to provide complete and accurate information relating to the weight and dimensions of the shipment.
(e) Security or other regulatory delays.
(f) Perils of the air, public enemies, criminal acts of any person(s) or entities, including, but not limited to, acts of terrorism, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotion, hazards incident to a state of war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by Company), strikes or anticipated strikes (of any entity, including, but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), conditions that present a danger to Company personnel, and disruption or failure of communication and information systems (including, but not limited to,Company’s systems).
(g) The shipment was undeliverable or returned.
All disputes of whatsoever nature under or in connection with this Bill of Lading shall be determined by the Collin County, Texas to the exclusion of any other court PROVIDED ALWAYS that the Carrier may in its absolute and sole discretion invoke or voluntarily submit to the jurisdiction of any other court which, but for the terms of this Bill of Lading, could properly assume jurisdiction to hear and determine such disputes, but such shall not constitute a waiver of the terms of this provision in any other instance.
Ocean Freight T&C
1) DEFINITIONS AND RULES OF CONSTRUCTION
- a) As used in this Bill of Lading:
- i) “Carriage” means the whole of the carriage, handling and storage of Goods, and other operations and services undertaken or performed by or on behalf of the Carrier in respect of the Goods.
- ii) “Carrier” means the company stated on the front of this Bill of Lading as being the Carrier and on whose behalf this Bill of Lading has been signed together with InstiCo Freight Management Inc. dba InstiCo Logistics and its subsidiaries.
iii) “Charges” includes freight, dead freight, demurrage, detention, and all expenses and other money obligations incurred and payable by the Merchant with respect to the Carriage or otherwise under the applicable tariffs or this Bill of Lading.
- iv) “COGSA” means the Carriage of Goods by Sea Act of the United States of America approved on 16th April 1936, as amended and re-codified from time to time.
- v) “Container” includes any container, trailer, transportation tank, lift van, flat, pallet, or any similar article of transport used to hold or consolidate goods.
- vi) “Goods” means the cargo described on the face of this Bill of Lading and, if the cargo is on, in or otherwise Stuffed into Containers supplied or furnished by or on behalf of the Merchant, includes the Containers.
vii) “Governmental Authority” includes: all U.S. and foreign national, federal, state, local, and other governments; government corporations, authorities, boards, commissions, ports, bodies, and entities; and all departments, ministries, agencies, bureaus, offices, and subdivisions of any of the foregoing.
viii) “Hague Rules” means the provisions of the International Convention for Unification of Certain Rules Relating to Bills of Lading signed at Brussels on 25th August 1924.
- ix) “Hague-Visby Rules” means the Hague Rules as amended by the protocol signed at Brussels on 23rd February 1968.
- x) “Harter Act” means 46 U.S.C. § 30702, et seq., as amended and re-codified from time to time.
- xi) “Herein,” “hereof,” and “hereto” are references to this Bill of Lading.
xii) The terms “include,” “including,” and similar terms shall be construed as if followed by the words “but not limited to.”
xiii) “Law” means all present and future laws, statutes, codes, rules, regulations, ordinances, rules of law, principles of law, orders, decrees, judgments, directives or the equivalent, and all international conventions and treaties to the extent applicable by the terms of this Bill of Lading, including without limitation the SOLAS Rules.
xiv) “Merchant” includes the shipper, the consignor, the consignee, the receiver of the Goods, the holder of this Bill of Lading, any Person owning or entitled to the possession of the Goods or this Bill of Lading, any Person having a present or future interest in the Goods, or any Person acting on behalf of any of the above mentioned Persons. If more than one Person is a “Merchant” under this Bill of Lading, then all of Merchant’s representations, warranties, covenants, indemnities, agreements, consents, and waivers under this Bill of Lading shall be joint and several, but Carrier may exercise its rights and remedies upon the breach or default by any one Person constituting the Merchant (with or without exercising rights or remedies against the Goods, any other property, or any other Person).
- xv) “Participating Carrier” means any other carrier by water, land, or air, performing any stage of the Carriage, including inland carriers, whether acting as sub-carrier, connecting carrier, substitute carrier, and/or bailee.
xvi) “Particulars” includes all manner of details with respect to the Goods, including the exact description, weight, kind, nature, content, measure, gauge, quantity, quality, condition, marks, numbers, and value.
xvii) “Person” includes an individual, corporation, limited liability company, general or limited partnership, joint venture, association, trust, Participating Carrier, Governmental Authority, and any other type of organization or entity.
xviii) “Shipping Unit” means each physical unit or piece of cargo not shipped in a package including articles or things of any description whatsoever, except Goods shipped in bulk and irrespective of the weight or measurement unit employed in calculating freight charges, and includes the term “customary freight unit” as used in COGSA (where applicable by its own force or by agreement), and, otherwise, “unit” as used in the Hague Rules, the Hague-Visby Rules, or any national legislation adopting the Hague Rules or the Hague-Visby Rules.
xix) “SOLAS Rules” means the requirements established under the International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 3 as codified and amended from time to time, including any national legislation adopting SOLAS Rules and the amendment to regulation VI/2 (requiring the mandatory provision of the verification of the gross mass of packed containers and the Guidelines regarding the verified gross mass of a container carrying cargo (MSC.1/Circ.1475).
- xx) “Stuffed” includes filled, consolidated, packed, loaded, or secured, and references to “Stuffed” include placing in or on the relevant Container.
xxi) “United States” means the United States of America.
xxii) “Vessel” means the vessel named on this Bill of Lading and any other vessel, ship, barge, lighter, watercraft, or other means of transport, which is or shall be substituted, in whole or in part, for such vessel.
- b) Words denoting the singular shall include the plural, and vice versa, and words denoting any gender shall include all genders; and captions of sections of this Bill of Lading are inserted for convenience only and shall not be deemed a part hereof or affect the construction or interpretation of any provisions of this Bill of Lading. Whenever reference is made to Carrier’s agreement, approval, or consent or to any arrangement involving Carrier, even if not specifically so stated, such agreement, approval, arrangement, or consent shall not be binding upon Carrier unless in writing and signed by a duly-authorized representative of Carrier, and Carrier may withhold such agreement, approval, arrangement, or consent in its sole discretion. All warranties by Merchant shall be construed to include representations of fact.
- a) All applicable provisions of Carrier’s tariffs that are published in accordance with the requirements of the Federal Maritime Commission or any other Governmental Authority are incorporated herein by reference.
- b) Copies of such provisions are obtainable from the Carrier upon request or from the relevant Governmental Authority with whom the tariffs have been filed.
3) OTHER AGREEMENTS
- a) This Bill of Lading, together with terms set forth in Carrier’s invoices and in Carrier’s Application of Credit executed by Merchant supersede all agreements or engagements for the shipment of the Goods. All provisions of this Bill of Lading, whether written, typed, stamped, or printed, are accepted and agreed by the Merchant and shall be binding as fully as if signed by the Merchant, any local customs or privileges to the contrary notwithstanding.
- b) Nothing in this Bill of Lading shall operate to limit or deprive the Carrier of any statutory or other protection or exemption from or limitation of liability. If required by the Carrier, a signed original Bill of Lading duly endorsed must be surrendered to the Carrier or its agent at the Port of Discharge prior to the release of any Goods.
- a) Merchant warrants that in agreeing to the terms hereof he is, or is the agent of and has the authority of, the Person owning or entitled to the possession of the Goods or any Person who has a present or future interest in the Goods.
5) CARRIER RESPONSIBILITY – GENERAL PROVISIONS
- a) If any portion of the Carriage is to or from the United States, or if Law other than United States Law is not compulsorily applicable, COGSA shall govern before loading and after discharge and during the entire time between the time the Goods are received from and redelivered to the Merchant, unless otherwise required by the Harter Act or by other applicable United States Law. In any trade that does not involve any carriage to or from the United States, the Hague Rules (or compulsorily applicable national Law implementing the Hague Rules) shall govern Carrier’s liability, limits on liability, and exemptions for loss, damage, or delay related to or in connection with the Goods, except where the Hague-Visby Rules are compulsorily applicable Law, in which case the Hague-Visby Rules shall govern such liability, limits on liability, and exemptions, provided:
- b) Merchant acknowledges and agrees that the Carrier is a non-vessel owning common carrier, that it does not own, lease, charter, or operate Vessels or other modes of transportation, or engage in cargo handling or storage, as a result of which Carrier will be required to (and may, in its sole discretion) subcontract with Persons (at any tier), to transport, handle or store cargo to accomplish all or part of the Carriage. Merchant is bound by the limitations on, and exemptions from, liability that are contained in the tariffs, bills of lading, and other contracts by which such other Persons are engaged to perform all or part of the Carriage. Such other Persons shall enjoy the benefit of all of Carrier’s rights and liberties with respect to the Goods and the Carriage. The Merchant agrees that the Carrier shall be deemed to be a beneficiary of the tariffs, bills of lading, and contracts of such other Persons and of all limitations of, and exemptions from, liability therein contained even though the Carrier acts as agent of the Merchant in contracting with the actual Person for the Carriage of the Goods. Under no circumstances shall the Carrier be responsible for any damages to an extent greater than it can recover from the actual Person engaged to perform all or part of the Carriage or any beneficiaries of its bill of lading.
- c) Carrier shall be entitled to (and nothing in this Bill of Lading shall operate to deprive or limit such entitlement) full benefit of, and rights to, all limitations of and exclusions from liability and all rights conferred or authorized by any applicable Law of any country (including, where applicable, Chapter 305 of Title 46 of the United States Code, and other relevant provisions of the United States Code) and without prejudice to the generality of the foregoing also all Laws available to the owner of the Vessels on which the Goods are carried.
- d) The Carrier undertakes to procure such services as necessary and shall have the right at its sole discretion to select any modes of land, sea, or air transport and to arrange participation by other Persons who handle or store cargo, or provide other services, to accomplish the total or any part of the Carriage between the Place of Receipt and the Place of Delivery as shown on this Bill of Lading.
- e) In the event that it is proven that loss or damage occurred during Carriage, but the stage of Carriage during which loss of or damage to the Goods occurred cannot be proved, it will be irrefutably presumed that the loss or damage occurred while the Goods were on the Vessel, and all obligations, rights, and immunities of Carrier and Merchant with respect to such loss or damage shall be determined accordingly.
- f) The rights, defenses, exemptions, limitations of and exonerations from liability, and immunities of whatsoever nature provided for in this Bill of Lading shall apply in every action or proceeding against the Carrier, its agents or servants, Participating Carriers, independent contractors, or other Persons engaged to perform all or part of the Carriage, whether in tort, contract, or otherwise.
- g) Services performed by Carrier as to Goods before their receipt by or for Carrier at the Place of Receipt shown on this Bill of Lading or after their delivery by or for Carrier at the Place of Delivery shown on this Bill of Lading were or shall be performed solely as agent for the Merchant, and Carrier shall have no responsibility or liability as a Carrier for any acts or omissions of any Persons or loss of or damage or delay to the Goods during such periods.
6) CARRIER RESPONSIBILITY – LIMITATIONS
- a) Package, Customary Freight Unit, or Shipping Unit Limitation.
- b) Where COGSA applies to this Bill of Lading (whether by its own force or by agreement), Carrier shall not be liable for loss or damage in an amount exceeding US $500 lawful money of the United States per package, or in case of Goods not shipped in packages, per Shipping Unit, unless a higher declared value has been made and noted, and extra Charges paid, in accordance with Clause 6(b) hereof.
- c) Where COGSA does not apply, but where the Hague Rules, Hague-Visby Rules, or any legislation making such rules compulsorily applicable to this Bill of Lading apply, Carrier shall not be liable for loss or damage to or in connection with the Goods in an amount exceeding the package or Shipping Unit limitation as laid down by such Rules or legislation, unless a higher declared value has been made and noted, and extra Charges paid, in accordance with Clause 6(b) hereof. If no limitation amount is applicable under such Rules or legislation, the limitation shall be US $500 lawful money of the United States per Shipping Unit.
- d) Where neither COGSA, nor the Hague Rules, nor the Hague-Visby Rules, nor any legislation applying such Rules is compulsorily applicable, Carrier’s liability shall not exceed US$500 per Shipping Unit or US$2 per kilo of the gross weight of the Goods lost, damaged, or in respect of which the claim arises, or the value of such Goods, whichever is less.
- e) Where a lesser monetary limitation is applicable, such as during handling by a Participating Carrier or independent contractor and damage occurs during its or their period of care, custody, control, and/or responsibility, the Carrier shall be entitled to avail itself of such lesser limitation.
- f) Ad Valorem – Declared Value of Package or Shipping Unit.
- g) To secure a due proportion between the charges it earns and the amount for which it may be responsible in the event of loss or damage to the Goods, Carrier has established its regular, lower rates and charges based on the limited value of the Goods as agreed herein. Carrier’s liability may be increased to a higher value by a declaration in writing of the value of the Goods by the shipper before delivery to Carrier of the Goods for shipment, such higher value being inserted on the front of this Bill of Lading in the space provided and, if required by Carrier, extra freight, premiums, and other Charges paid. Unless the Merchant so declares the value of the Goods and pays ad valorem charges, the Merchant is deemed to have elected the regular, lower charges of Carrier, and to have agreed that, for purposes of computing any liability of Carrier, the limitations of liability set forth in Clause 6(a) hereof shall apply. In such case if the actual value of the Goods shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
- h) The value of the Goods shall be determined according to the commodity exchange price at the place and time of delivery to Merchant or at the place and time when they should have been so delivered or if there is no such price according to the current market price by reference to the normal value of Goods of the same kind and quality, at such place and time.
- i) Definition of Package or Shipping Unit. Where a Container is used to consolidate Goods and such Container is Stuffed by Carrier, the number of packages or Shipping Units stated on the face of this Bill of Lading in the box provided shall be deemed the number of packages or Shipping Units for the purpose of any limit of liability per package or Shipping Unit provided in any applicable international convention or national Law relating to the carriage of goods by sea. Except as aforesaid the Container shall be considered the package or Shipping Unit. As to Goods shipped in bulk the limitation applicable thereto shall be the limitation provided in such Law which may be applicable and in no event shall anything herein be construed to be a waiver of limitation as to Goods shipped in bulk.
- j) Valuables. The Carrier shall not be liable to any extent for any loss or damage to or in connection with platinum, gold, silver, jewelry, precious stones, precious metals, radioisotopes, precious chemicals, bullion, specie, currency, negotiable instruments, securities, writings, documents, pictures, embroideries, works of art, curios, heirlooms, collections of every nature, or any other valuable Goods whatsoever, including Goods having particular value only for the Merchant, unless the true nature and value of the Goods have been declared in writing by the Merchant before receipt of the Goods by the Carrier, and the same inserted in this Bill of Lading and ad valorem freight has been prepaid thereon.
- k) Fire Exemption. Neither Carrier nor any Person controlled by or under common control with Carrier shall be liable to answer for or make good any loss or damage to Goods occurring at any time (including before loading on or after discharge from the Vessel) by reason or by means of any fire, wherever and howsoever occurring, unless such fire shall have been caused by the actual fault or privity of the Carrier or such Person, respectively. In any situation where such exemption from liability may not be permitted by Law, neither Carrier nor such Person shall be liable for any loss or damage by the fire unless caused by negligence, including that imputed by the Law, of Carrier or Person, respectively.
- l) Third Party Custody of Goods. Any other provision hereof to the contrary notwithstanding, Merchant agrees and acknowledges that
- m) Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery, mis-delivery, loss, or damage to the Goods occurring while the Goods are not in the actual possession of Carrier or of Carrier’s agents and
- n) if Merchant directs that any Goods be moved from a container yard to a facility or the premises of any other third-party, and Goods are thereafter lost, stolen, or damaged, in whole or in part, while under the care, custody, or control of such third party or by a carrier that transports the Goods, Carrier shall have no liability for any such loss or damage whatsoever. If Merchant asserts a claim for such delay, non-delivery, mis-delivery, loss, damage, or any fault or negligence, and Carrier is required to defend against a claim or pay any claim related thereto, Merchant shall defend, indemnify and hold harmless the Carrier with respect thereto.
7) ROUTES AND DEVIATION; LIBERTIES
- a) Without notice to the Merchant, the Carrier has the liberty to carry the Goods on or under deck and to choose or substitute the means, route, and procedure to be followed in the handling, stowage, storage, and transportation of the Goods, including deviations for purposes not directly necessary for a prompt and direct accomplishment of the Carriage. Carrier does not warrant any specific route, Vessel, method of transport, or delivery date.
- b) In any situation whatsoever, whether or not existing or anticipated before commencement of or during the transport of the Goods, which in the judgment of the Carrier (or any other Person who carries, handles, or stores or is to carry, handle, or store the Goods):
- i) has given or is likely to give rise to danger, injury, loss, hindrance, risk, difficulty, delay, or disadvantage of whatsoever nature to the Vessel, any vehicle or other means of transport, the Carrier, any other Person, the Goods, or any other property;
- ii) a Participating Carrier intended to be used for the Carriage suspends service for all or part of the intended Carriage;
iii) the Carrier or the Carriage is adversely affected by a circumstance described in Clause 7(d) hereof, or there is a reasonable apprehension thereof;
- iv) a vendor of Goods not supplied by the Carrier asserts a legal right to recover, reclaim, or replevy such Goods;
- v) any Person constituting the Merchant files or becomes subject to proceedings in bankruptcy, receivership, or insolvency, to an assignment for the benefit of creditors, or any other similar proceeding or transaction;
- vi) Goods are seized by judicial or nonjudicial means, arrested, executed against, detained, requisitioned, or acquired by a Governmental Authority; or
- vii) has rendered or is likely to render it in any way unsafe, impracticable, unlawful, or against the interest of the Carrier or the Merchant to commence or continue the Carriage or to discharge the Goods at the intended port or place of discharge, or to transport the Goods by the route or in the manner originally intended by the Carrier, the Carrier at any time shall be entitled to do any or all of the following, without prior notice to Merchant: terminate the Carriage; store the Goods; transship or forward the Goods; divert the Goods; unpack Goods from their Containers; and, in the exercise of its reasonable discretion, dispose of the Goods in such way as the Carrier may deem advisable, and, without limiting the foregoing:
(1) Carrier shall be entitled, before the Goods are loaded on the Vessel or other mode of transport, to cancel this Bill of Lading without incurring liability to the Merchant or any other Person for compensation or damages, and to require the Merchant to take delivery of the Goods, and upon Merchant’s failure to do so, to store the Goods anywhere;
(2) if the Goods are at a place awaiting transshipment, Carrier shall be entitled to terminate the Carriage there and to store the Goods at any place selected by the Carrier, transship or forward the Goods to an alternative destination, and, in the case of the circumstances set forth in Clause 7(b)(iv) hereof, transship or forward the relevant Goods to an alternative recipient designated by the relevant vendor;
(3) if the Goods are loaded on the Vessel or other mode of transport, Carrier shall be entitled to discharge the Goods or any part thereof at any port or place selected by the Carrier or to carry them back to the Port of Loading or Place of Receipt and there discharge them; and
(4) in the case of the circumstances set forth in Clause 7(d) hereof impose surcharges to cover all extra expenses (including extra insurance premiums and cost of diversion).
All actions under Clauses (1), (2), (3), or (4) above shall constitute complete and final delivery and full performance of this Bill of Lading, and the Carrier thereafter shall be freed from any responsibility hereunder.
- c) If the Carrier makes arrangements to store, transship, or forward the Goods, it shall do so solely as agent of and for and at the sole risk and expense of the Merchant without any liability whatsoever in respect of Carrier’s acts or omissions as agent, and the Merchant shall reimburse the Carrier forthwith all extra freight charges and other extra expenses thereby incurred.
- d) The situations referred to in Clause 7(b)(iii) hereof shall include those caused by: the existence or apprehension of war (declared or undeclared), hostilities, warlike or belligerent acts or operations, riots, civil commotions, or other disturbances; closure of, obstacles in, or danger to any canal; blockade of port or place or prohibition of or restriction to commerce or trading; embargo; piracy; quarantine, sanitary, or other similar regulations or restrictions; strikes, lockouts, or other labor troubles whether partial or general and whether or not involving employees of the Carrier or its subcontractors; congestion of port, dock, wharf, or any other place; shortage, absence, or obstacles of labor or facilities for loading, discharge, delivery, or other handling of the Goods; epidemics or diseases; Carrier making a determination that the Goods cannot be safely or properly carried further; or bad weather, shallow water, ice, landslip, or other obstacles in navigation or haulage.
- e) The Carrier shall have liberty to comply with orders, directions, regulations, recommendations, or suggestions as to departure, arrival, route, ports of call, stoppage, loading, discharge, handling, destination, reshipment, transshipment, deposit, or storage in any place or places, delivery, surrender, quarantine, disposal, or otherwise, howsoever given by any Governmental Authority or by any other Person having, under the terms of any insurance on the Vessel or the Goods, the right to give such order, directions, regulations, recommendations, or suggestions.
- f) The liberties set out in this Clause 7 may be invoked for any purpose whatsoever even if not connected with the Carriage covered by this Bill of Lading, and any action taken or omitted to be taken, and any delay arising therefrom, shall be deemed to be within the contractual and contemplated Carriage and not be an unreasonable deviation.
- g) Promptly after invoking or becoming aware of any Person who fulfills any part of the Carriage invoking, any liberties set out in this Clause 7, Carrier shall give notice thereof to Merchant. All additional freight and other Charges (including a reasonable recovery for Carrier’s personnel and internal expenses) that are incurred as a result of any invocation of this Clause 7 shall be for the account of Merchant, who shall promptly pay the same. Such Charges and amounts that are incurred or recoverable hereunder in connection with a situation with regard to the Goods and other property may be reasonably allocated by Carrier between the Goods and such other property
- h) Without limiting Merchant’s other obligations under this Bill of Lading, Merchant shall defend, indemnify, and hold harmless the Carrier against all losses and liabilities suffered or incurred by the Carrier as a result of the circumstances referred to in this Clause 7.
8) MERCHANT’S RESPONSIBILITY
- a) The Particulars of the Goods set out on the face hereof and any Particulars or other representation appearing on the Goods, Containers, or other packages or documents relating thereto are furnished by the Merchant, and the Merchant warrants to the Carrier the accuracy and completeness of all such information including without limitation all verified gross mass requirements under the SOLAS Rules.
- b) Merchant warrants that it has complied with all applicable Laws and requirements of port and other authorities and shall bear and pay all duties, taxes, fines, imposts, expenses, and losses incurred or suffered by reason thereof or by reason of any illegal, incorrect, or insufficient marking, numbering, addressing, or any other Particulars of the Goods.
- c) Merchant warrants that the Goods are packed in a manner adequate to withstand the ordinary risks of carriage having regards to their nature and in compliance with all applicable Laws.
- d) Merchant shall be liable for the loss, damage, contamination, soiling, detention, or demurrage before, during, and after the Carriage of property (including Containers) of Carrier or any Person or Vessel that is caused by Merchant or any Person acting on Merchant’s behalf or for which Merchant is otherwise responsible.
- e) Payment of any amounts due hereunder to a forwarder, broker, or any Person other than Carrier or its duly-authorized agent shall not be deemed payment to Carrier and shall be made at the payer’s risk. Unless otherwise specifically agreed by Carrier, all amounts for which Merchant is liable under this Bill of Lading are due upon demand. Merchant shall pay interest on any amounts owed under this Bill of Lading that are not paid when due at one and one half percent (1.5%) per month (19.72% annum).
9) DANGEROUS GOODS, CONTRABAND
- a) Merchant warrants that the Goods are not, and shall not become, of an explosive, inflammable, radioactive, corrosive, damaging, noxious, hazardous, poisonous, injurious, or dangerous nature, and agrees that such Goods shall be transported only upon the Carrier’s acceptance (granted or withheld in its sole discretion) of a prior written application by shipper for the carriage of such Goods. Such application must accurately state the nature, name, label, and classification of the Goods, the method of rendering them innocuous, the full names and addresses of the shipper and consignee, and all certificates and other documents required by Law. Merchant shall not tender contraband for shipment.
- b) The Merchant shall ensure that the nature of the Goods referred to in the preceding paragraph is distinctly and permanently marked on the outside of their packages and Containers and shall submit the documents or certificates required by any applicable Laws or by the Carrier before tendering the Goods for shipment.
- c) Whenever Goods are discovered to have been received by the Carrier and the Merchant has not complied with Clauses 9(a) or (b) hereof, or the Goods are found to be contraband or prohibited by any applicable Laws, the Carrier shall be entitled to have such Goods rendered innocuous, thrown overboard, discharged, or otherwise disposed of at the Carrier’s discretion without liability, and the Merchant shall be liable for and shall indemnify the Carrier against all loss, damage, and liability, including general average and loss of freight and other Charges, and any other expenses directly or indirectly arising out of or resulting from such Goods or any action by Carrier authorized herein with respect to any Goods.
- a) Carrier shall not be liable for loss or damage to the Goods Stuffed in Containers: (i) caused by the manner in which the Container has been Stuffed; (ii) caused by the unsuitability of the Goods for carriage in Containers; (iii) caused by the unsuitability or defective condition of the Container; or (iv) if the Container is not sealed at the commencement of the Carriage, except where Carrier has agreed to seal the Container.
- b) As to Containers Stuffed by Carrier, this Bill of Lading is prima facie evidence of the receipt only of the number of packages, Shipping Units, or Containers as shown on the face hereof. As to other Containers, this Bill of Lading is conclusive evidence of such matters. In all cases, the nature, order, and condition of the contents and any Particulars are unknown to the Carrier, who has no responsibility in respect thereof.
- c) If the Containers are delivered by the Carrier with seals intact, such delivery shall be deemed as full and complete performance of the Carrier’s obligation hereunder and the Carrier shall not be liable for any loss of or damage to the contents of the Containers except to the extent that the Containers have been penetrated while in the custody of Carrier under circumstances for which it is liable.
- d) Carrier shall be at liberty to open all Containers and inspect the contents of the Containers without notice to the Merchant at such times and places as the Carrier may deem appropriate, and all expenses incurred therefrom shall be reimbursed to the Carrier or borne directly by the Merchant. In case the seals of Containers are broken by Governmental Authorities or other authorities for inspection of the contents of the Containers, the Carrier shall not be liable for any loss, damage, expenses, or any other consequences arising or resulting there from.
- e) Merchant shall return all Containers in the same order and conditions as handed over to Merchant (normal wear and tear excepted), with interiors clean, and prior to the accrual of any demurrage, detention, or other delay charges.
11) SPECIAL CONTAINERS
- a) Merchant warrants that it has not tendered for transportation any Goods which require temperature, humidity, ventilation, or other control without previously having made special arrangements with the Carrier in writing, including for the payment of additional freight (and filling in the appropriate box on the front of this Bill of Lading with respect to their nature and particular temperature or other range to be maintained). In the absence of such special arrangements, Carrier may treat the Goods or Containers only as ordinary Goods or Containers, respectively. In the case of temperature-, or humidity-, or ventilation-controlled Containers Stuffed by or on behalf of Merchant, Merchant further warrants that the Containers are and shall remain throughout the Carriage in proper functioning order and have been delivered to the Carrier at the proper internal temperature, humidity, ventilation, or other control conditions, that the Goods have been properly Stuffed in the Container, and that its controls have been properly set by Merchant before receipt of the Goods by Carrier.
- b) Carrier shall not be liable for any loss of or damage to the Goods arising from defects, derangement, breakdown, stoppage, or other failure of the temperature, humidity, or ventilation controlling machinery, plant, insulation, or any other apparatus of the Containers, provided that Carrier shall maintain the settings of temperature-, humidity-, ventilation-, or other controlled Containers as required in Clause 11(c) hereof.
- c) If the Goods have been packed into temperature-, humidity-, ventilation-, or other controlled Containers by the Carrier and the particular temperature and humidity range requested by the Merchant is inserted in the Bill of Lading, then Carrier will use due diligence to set the controls within the requested ranges but does not guarantee the maintenance of such temperature and humidity conditions inside the Containers. The Carrier shall not be liable for any loss or damage occasioned by temperature, humidity, defects or insufficiency in or accidents to or explosion, breakdown, failure, or inoperability of any refrigeration, heating, cooling, humidity control, ventilation, or other control unit, including lack of fuel or power or interruption in fuel or power supply for any reason, unless shown to have been caused by the failure of the Carrier to exercise due diligence to properly operate temperature-, humidity-, ventilation-, or other controlled Containers.
12) STORAGE OF GENERAL CARGO
- a) Goods may be stowed in poop, forecastle, deck house, shelter deck, passenger space, or any other covered space commonly used in the trade and suitable for the carriage of Goods, or on deck as provided in Clause 13 hereof, and when so stowed shall be deemed for all purposes to be stowed under deck.
13) DECK CARGO, LIVE ANIMALS AND PLANTS, PERISHABLES
- a) The Carrier has the right to carry the Goods in Containers under the deck or on deck, whether or not so stated herein.
- b) When the Goods are carried on deck, the Carrier shall not be required to specially note, mark, or stamp any statement of on deck stowage on the face hereof, any custom or usage to the contrary notwithstanding. Carrier shall not be liable in any capacity whatsoever for any nondelivery, misdelivery, delay, or loss of or damage to Goods which are carried on deck and specially stated herein to be so carried, whether or not caused by Carrier’s negligence, the Vessel’s unseaworthiness, or other reasons.
- c) The Carrier shall not be responsible for any accident, disease, mortality, loss, injury, or damage to live animals, birds, reptiles, fish, plants (including fruits and vegetables), or other perishable Goods arising from any cause whatsoever.
- a) Without giving notice of either arrival or discharge, Carrier may discharge the Goods direct as they come to hand, at or onto any dock, wharf, craft, or place that the Carrier may select, and continuously, Saturdays, Sundays, and holidays included, at all such hours by day or night as the Carrier may determine no matter what the state of the weather or custom or rule of the port may be. Delivery of the Goods shall be received by the consignee directly from the ship’s tackle as the Goods come to hand in unloading or as soon as available if discharged on Carrier’s dock or wharf. The Carrier shall not be liable in any respect whatsoever if temperature-, humidity-, ventilation-, or other control facilities or equipment shall not be furnished during loading or discharge or before loading or after discharge, including any part of the time that the Goods are upon or at the dock, wharf, craft, or other place of loading, discharge, or storage. All lighterage and use of craft in loading or discharging shall be at the risk and expense of the Merchant, and all Charges incurred thereby shall be paid by Merchant in addition to freight. Landing and delivery charges and pier dues shall be at the expense of the Merchant and shall be paid by Merchant in addition to freight. If the Goods are not taken away by the proper recipient by the expiration of the next working day after the Goods are at Merchant’s disposal, the Goods may, at Carrier’s option and subject to Carrier’s lien, be placed in storage or be permitted to lie where landed, but always at the expense and risk of the Merchant and Goods. The responsibility of the Carrier in any capacity shall altogether cease and the Goods shall be considered to be delivered and at their own risk and expense in every respect when taken into custody of customs or other Governmental Authorities. The Carrier shall not be required to give any notification of delivery or disposition of the Goods.
- b) In case the Goods received by Carrier are in Containers into which the contents have been Stuffed by or on behalf of the Merchant, the Carrier shall only be responsible for delivery of the total number of Containers shown on the face hereof, and shall not be required to unpack the Containers and deliver the contents thereof, in any manner; provided, however, that upon the Merchant’s demand in writing reaching the Carrier at least three days prior to the scheduled date of arrival of the Vessel at the Port of Discharge, and if the Carrier agrees in the exercise of its sole discretion, Containers may be unpacked and the contents thereof may be delivered by the Carrier to one or more receivers in accordance with the written instructions, in which case if the seal of the Containers is intact at the time of unpacking, all the Carrier’s obligations hereunder shall deemed to have been discharged and the Carrier shall not be responsible for any loss or damage to the contents arising or resulting from such delivery and the Merchant shall be liable for an appropriate adjustment of the freight and additional charges incurred. In case the Goods have been Stuffed into Containers by the Carrier, the Carrier may unpack the Containers and deliver the contents thereof and shall not be required to deliver the Goods in Containers. Goods may be delivered to the Merchant in Containers, in which case if the Containers are delivered by the Carrier with seals intact, such delivery shall be deemed as full and complete performance of the Carrier’s obligations hereunder and the Carrier shall not be responsible for any loss of or damage to the contents of the Containers. Delivery as provided for in this paragraph shall be granted only when arranged prior to Carrier’s receipt of the Goods and if expressly provided for herein. The Merchant desiring to avail itself of the delivery as provided in this paragraph must give notice in writing to the Carrier at the first port of call of the Vessel named in the option at least 48 hours prior to the Vessel’s arrival there, otherwise the Goods shall be landed at any of the optional ports at the Carrier’s option and the Carrier’s responsibility shall then cease.
- c) The Merchant warrants to the Carrier that the marks on the Goods, packing, and Containers correspond to the marks shown on the Bill of Lading and also in all respects comply with all the Laws in force at the Port of Discharge and Place of Delivery and shall defend, indemnify, and hold harmless the Carrier against all loss, damage, expenses, penalties, and fines arising or resulting from incorrectness or incompleteness thereof.
- d) Goods which cannot be identified as to marks and numbers, cargo sweepings, liquid residue, and unclaimed Goods not otherwise accounted for shall be allocated for the purpose of completing delivery to the various Merchants and consignees of Goods of like character, in proportion to any apparent shortage, loss of weight, or damage, and such Goods or parts thereof shall be accepted as full and complete delivery.
- e) The term “apparent good order and condition” when used in this Bill of Lading with respect to iron, steel, metal, or wood products does not mean that such Goods, when received, were free of visible rust, mold or moisture staining, chafing, and/or breakage, or when used with reference to baled wood products or baled cotton does not mean that the covers thereon were not torn or that the bands thereon were free of visible rust or moisture. In any event Merchant acknowledges and agrees that rust, oxidation, or condensation inside any Container is not Carrier’s responsibility, unless such condition arises out of Carrier’s failure to provide a seaworthy Container prior to loading. Prior to Carrier’s receipt of any Goods, Merchant may request in writing special arrangements for Goods subject to any of the foregoing conditions, such arrangements
- a) Charges shall be deemed fully earned on receipt of the Goods by Carrier and shall be paid and non-returnable in any event. At Carrier’s option, Charges may be calculated on the basis of the Particulars of the Goods furnished by the Merchant who shall be deemed to have guaranteed to the Carrier the accuracy of all Particulars of the Goods as furnished by Merchant at the time of receipt of the Goods by the Carrier. In case of any incorrect or incomplete including failure to furnish) declaration of any of the Particulars of the Goods including without limitation all verified gross mass requirements for the Goods as required under the SOLAS Rules which shall remain the Merchant’s sole responsibility, the Merchant shall be liable for and bound to pay to the Carrier (i) the balance of freight between the freight charged and that which would have been due had the correct Particulars been given, plus (ii) (because of the difficulty in ascertaining Carrier’s additional damages) as and by way of liquidated and ascertained damages, a sum equal to the correct freight and (iii) for any additional costs or delays incurred by Carrier including detention, demurrage, additional re-weighing or verification fees, and quayside rent charges. Carrier shall be entitled to production of the commercial invoice for the Goods or true copy thereof and to inspect, re-weigh, re-count, re-measure, and re-value the Goods, and if any Particulars are found by Carrier to be incorrect, Merchant shall pay Carrier the correct Charges (credit being given for the Charges already charged) and the expenses incurred by Carrier in establishing the correct Particulars.
- b) Full freight to the Port of Discharge or Place of Delivery named herein shall be prepaid or shall be collected at destination. The Carrier shall be entitled to all freight and other Charges due hereunder, and to receive and retain it irrevocably under any circumstances whatsoever, whether or not the Vessel or the Goods are damaged or lost, or the Carriage is interrupted or abandoned. Full freight shall be paid for damaged, destroyed, or unsound Goods.
- c) The payment of freight or other Charges shall be made in full, in cash without any offset, recoupment, abatement, counterclaim, or deduction. Where freight is payable at the Port of Discharge or Place of Delivery, such freight and all other Charges shall be paid in the currency named in this Bill of Lading or, at Carrier’s option, in other currency.
- d) Goods once received by the Carrier cannot be taken away or disposed of by the Merchant or vendor of the Goods except upon the Carrier’s consent and against payment of full freight and compensation for any loss sustained by the Carrier through such taking away or disposal. If the Goods are not available when the Vessel is ready to load, the Carrier is relieved of any obligation to load such Goods and the Vessel may leave port without further notice, and dead freight shall be paid by the Merchant.
- e) The Merchant shall be liable for, and indemnify the Carrier against:
(i) all dues, duties, imposts, taxes, and charges including consular fees levied on the Goods;
(ii) all fines and losses sustained or incurred by the Carrier in connection with the Goods howsoever caused, including the Merchant’s failure to comply with Laws, including without limitation the SOLAS Rules, or directions or recommendations of Governmental Authorities or others in connection with the Goods, or Merchant’s failure to procure consular, health, or other certificates or other documentation to accompany the Goods; and
(iii) Carrier’s expenses incurred due to the seizure of Goods by judicial or nonjudicial means, or if the Goods are arrested, executed against, detained, requisitioned, or acquired by a Governmental Authority. The Merchant shall be liable for return freight and Charges on the Goods refused exportation or importation by any Governmental Authorities. If the Carrier is of the opinion that the Goods stand in need of sorting, inspecting, cooperage, bailing, repackaging, mending, repairing, or reconditioning or require other protection or care, the Carrier may carry out such work at the expense of the Merchant and the Goods. The Merchant authorizes the Carrier to incur and pay all such Charges and expenses and to do any matters mentioned above at the expense of and as agents for the Merchant and to engage other Persons to regain or seek to regain possession of the Goods and do all things deemed advisable for the benefit of the Goods.
6. f) All Persons constituting the Merchant shall be jointly and severally liable to the Carrier for the payment of all Charges and for the payment and performance of the obligations and indebtedness of each of them hereunder.
- a) Carrier shall have a continuing general lien – which shall survive delivery – upon all Goods and documents related to the Goods that are in its possession, custody, or control, or en route, for all amounts now or hereafter owed to Carrier by Merchant, including:
- i) all Charges and other amounts owed pursuant to this Bill of Lading or any agreement preliminary hereto (including General Average and Merchant’s indemnity obligations);
- ii) amounts due to Carrier by Merchant under any other bill of lading, contract of carriage, or any other agreement of any type;
iii) all damages, duties, fines, penalties, or advances in connection with the Carriage of the Goods or any other property;
- iv) Merchant’s obligations to defend, indemnify and hold harmless in connection with the Goods or Carriage; and
- v) all other sums whatsoever payable by or chargeable to or for the account of the Merchant under this Bill of Lading or any contract preliminary hereto, including the attorneys’ fees, and other costs and expenses incurred in recovering any of the foregoing. Without limiting the foregoing, Carrier may withhold delivery and store the Goods at Merchant’s expense if Merchant is in default of any obligation to Carrier whether or not it is related to the Carriage, the Goods, or this Bill of Lading. Carrier’s lien as provided for in this Clause 16 supplements Carrier’s other rights under all other agreements, under U.S. maritime law, or other applicable Law and can be extinguished only by full and indefeasible payment of all secured amounts. If for any reason delivery is made prior to payment of all amounts secured by Carrier’s lien, then notwithstanding the absence of any notice, Merchant acknowledges and agrees that Carrier retains constructive possession of the Goods until Carrier’s lien is satisfied as aforesaid. If Merchant defaults in the payment or performance of any such obligations or indebtedness, then Carrier may sell the Goods by public auction or private sale. Any notice required by Law to be given by Carrier of a sale or other intended action with respect to any Goods or documents, made by sending same to Merchant at least ten days prior to any proposed action shall constitute fair, reasonable, and adequate notice to Merchant. Without limiting Carrier’s rights under any Law, no advance notice is required if the Goods to be sold are perishable or subject to rapid deterioration or are of a type sold on a recognized market. If, on sale of the Goods, the proceeds fail to cover the amount due and the cost and expenses incurred, the Carrier shall be entitled to recover the deficit from the Merchant.
- b) Without limiting the foregoing, if the Goods are unclaimed for 14 days, or whenever in the Carrier’s opinion, the Goods are perishable or subject to deterioration, or are worthless, the Carrier may, at its discretion and subject to its lien and without any responsibility attaching to it, sell, abandon, or otherwise dispose of such Goods solely at the risk and expense of the Merchant.
17) BOTH TO BLAME COLLISION
- a) If the Vessel comes into collision with another ship as a result of negligence of the other ship and any act, neglect, or default of the master, mariners, pilot, or the servants of the Vessel in the navigation or in the management of the Vessel, the Merchant shall defend, indemnify, and hold harmless the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as much loss or liability represents loss of, or damage to, or any claim whatsoever to the other or non-carrying ship or her owners as part of their claim against the carrying Vessel or Carrier. The foregoing provisions shall also apply where the owners, operators, or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
18) GENERAL AVERAGE
- a) Merchant shall defend, indemnify, and hold harmless the Carrier in respect of all claims of a general average nature which may be asserted against Carrier with respect to the Goods and prior to delivery of any Goods shall provide such security (including cash deposits) as may be required by the Carrier in this connection.
19) NEW JASON CLAUSE
- a) In the event of accident, danger, damage, or disaster before or after commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequences of which, the Carrier is not responsible by Law, contract, or otherwise, the Merchant shall jointly and severally contribute with the Participating Carrier in general average to the payment of any sacrifices, loss, or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods. Merchant shall pay its contribution to general average even when such average is the result of fault, neglect, or error of the master, pilot, or crew. Merchant expressly renounces all Laws which might otherwise apply.
20) HIMALAYA CLAUSE
- a) Merchant undertakes that no claim or allegation shall be made against any Person or Vessel whatsoever other than Carrier, including the Carrier’s servants or agents, any independent contractors (at any time) and their servants or agents, Participating Carriers, and all others by whom the whole or any part of the Carriage, whether directly or indirectly, is procured, performed, or undertaken, which imposes or attempts to impose upon any such Person or Vessel any liability whatsoever in connection with the Goods or the Carriage, and if any claim or allegation should nevertheless be made, to defend, indemnify, and hold harmless Carrier against all consequences thereof.
- b) Without limiting the foregoing, every such Person and Vessel shall have the benefit of all provisions herein benefiting the Carrier as if such provisions were expressly for its benefit. It is understood and agreed that if it should be adjudged that any Person other than or in addition to the Carrier is under any responsibility with respect to the Goods or any other goods, regardless of the port or place where any loss or damage shall occur and without regard to whether the Goods covered hereby or any other goods are being handled or are damaged directly or indirectly during any handling, all exemptions, limitations of, and exonerations from liability provided by Law or by the terms and conditions hereof shall be available to all agents, servants, employees, representatives, Participating Carriers (including road, rail, water and air carriers), stevedores, terminal operators, warehousemen, crane operators, watchmen, carpenters, ship cleaners, surveyors, and independent contractors (at each tier) inclusive of all Persons providing any service whatsoever, regardless for whom acting or by whom retained and paid, it being always understood that such Persons and Vessels are not entitled to any greater or further exemptions, limitations of, or exonerations from liability than those that the Carrier has under this Bill of Lading in any given situation.
- c) The Merchant shall defend, indemnify, and hold harmless the Carrier against all claims which may be made upon the Carrier by any Participating Carrier, servant, agent, or subcontractor of the Carrier (at any tier) in relation to the claim against any such Person made by the Merchant.
21) LEGAL COMPLIANCE
- a) The Merchant represents and warrants that it and the Goods are in compliance with all applicable Laws and regulations, including anti-corruption, export control, and anti-terrorism Laws, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the International Traffic in Arms Regulations administered by the U.S. State Department’s Directorate of Defense Trade Controls, U.S. Export Administration Regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security, the U.S. Anti-Boycott regulations, and the various U.S. economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control, and that the information that Merchant provided to Carrier in connection with Merchant’s compliance with all such applicable Laws is true and complete.
- b) The Merchant shall also comply with all applicable Laws of any other country to, from, though, or over which the Goods may be carried, including all applicable Laws relating to the packing, SOLAS Rules relating to the verified gross mass of containers, carriage, or delivery of the Goods.
- c) Merchant represents and warrants that the export jurisdiction and classification of the Goods is correct and that it shall immediately notify Carrier in writing of any changes to such information. Pursuant to the foregoing, Merchant shall furnish such information and attach documents to this Bill of Lading as may be necessary to comply with all applicable Laws.
- d) Merchant shall indemnify and hold Carrier harmless against any and all claims, losses, or damages arising from the conduct of Merchant or any of its officers, directors, employees, agents, owners, shareholders, or other Persons acting for or with Merchant that constitutes a violation of Merchant’s obligations, representations, and warranties contained herein.
22) U.S. SECURITY
- a) If the Vessel calls in the United States, including any United States territory, the following provisions shall apply with respect to applicable Law or measures:
- b) Each delay suffered, or time lost in obtaining the entry and exit clearances from the relevant Governmental Authorities shall be counted as time of detention.
- c) All expenses or additional fees related to any of the Goods, even if levied against the Vessel, that arise out of security measures imposed at the loading or discharging port shall be for the Merchant’s account.
23) LIMITATION OF LIABILITY
- a) All claims for which the Carrier may be liable shall be adjusted and settled on the basis of Merchant’s net invoice cost, plus freight and cargo insurance premium, if paid.
- b) In no event shall the Carrier be liable for any indirect, incidental, delay, consequential, punitive, statutory or special damages, including lost profits, income or opportunity, whatsoever and howsoever caused, even if Carrier is on notice of the possibility of such damages or for the acts or omissions of any other person.
- c) These limitations and exclusions are effective even if they cause any permitted remedy to fail of its essential purpose. Carrier does not undertake that the Goods shall arrive at any particular time or meet any particular market or use. Without prejudice to the foregoing, if Carrier is found liable for delay, liability shall be limited to the freight charges applicable to the relevant stage of the Carriage.
- a) Without limiting Merchant’s other indemnity obligations under this Bill of Lading, Merchant agrees to indemnify and hold harmless the Carrier from and against all charges, claims, damages, liabilities, costs, expenses, or other payments or losses (including purchase price, freight, storage, demurrage, detention, duties, taxes, fines, penalties, consequential or exemplary damages, or other money, and including the Carrier’s litigation expenses and reasonable attorneys’ fees) incurred by the Carrier in connection with or arising from any one or more of:
- i) any breach of any representation, warranty, indemnity, or covenant by Merchant, including any failure of the Merchant to pay or perform its obligations to the Carrier or to any third party (including any carrier, vendor, vendee, holder of this Bill of Lading, Governmental Authority, or other Person);
- ii) any other claim by any such third party;
iii) all claims and liabilities and all expenses arising from the Carriage insofar as such claim or liability exceeds Carrier’s liability under this Bill of Lading;
- iv) breach of the applicable tariff or this Bill of Lading by Merchant; and
- v) the negligence, gross negligence, willful misconduct, or unlawful acts or omissions of Merchant. The confiscation or detention of the Goods or other property by any third party shall not affect or diminish the Merchant’s liability to the Carrier to pay all charges or other money due promptly upon demand. All obligations of the Merchant in this Bill of Lading to indemnify Carrier are deemed to include the obligations to defend and to hold harmless. Throughout this Bill of Lading, where the Merchant is stated to have an obligation to defend, indemnify, and hold harmless the Carrier, the Carrier may tender defense of the matter to the Merchant, or may select counsel of Carrier’s choosing, giving notice of the selection to the shipper and any known holder of this Bill of Lading, and defend the matter, and the Merchant shall timely pay all expenses incurred thereby, including attorneys’ fees and all other reasonable costs and expenses related thereto.
25) NOTICE OF CLAIM AND TIME FOR SUIT
- a) Unless notice of loss or damage and the general nature of such loss or damage is given in writing to the Carrier at the Port of Discharge or Place of Delivery, or at the Carrier’s address shown on the Bill of Lading, before or at the time of delivery of the Goods or, if the loss or damage is not readily apparent, within three days after delivery, the Goods shall be deemed to have been delivered as described in the Bill of Lading.
- b) In any event the Carrier shall be discharged from all liability, including liability in respect of non-delivery, misdelivery, delay, loss, damage, or any fault or negligence, unless suit is filed against the Carrier within one year after the earlier of delivery or release of the Goods or the date when the Goods should have been delivered or released.
26) LAW; DISPUTES; VENUE; SERVABILITY; ETC
- a) This Bill of Lading shall be governed by and construed in accordance with the internal Laws of the State of Texas (excluding its Laws relating to conflicts of law), except as the same may be governed by the federal Law of the United States.
MERCHANT IRREVOCABLY CONSENTS TO NON-EXCLUSIVE JURISDICTION AND VENUE FOR LEGAL PROCEEDINGS RELATED TO ALL CLAIMS AND DISPUTES ARISING FROM OR IN CONNECTION WITH THIS BILL OF LADING OR THE GOODS, WHETHER UNDER FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, IN COLLIN COUNTY, TEXAS. MERCHANT AND CARRIER HEREBY CONSENT TO THE COMMENCEMENT AND TRANSFER OF ALL SUCH LEGAL PROCEEDINGS TO SUCH COURTS.
- b) Merchant irrevocably consents to the commencement and to the transfer of venue in any or all such actions to any other venue in which Carrier is party to a legal action brought by itself or a third party that arises from or is connected with the Goods, their carriage, loading, unloading, handling, or storage, or loss, damage, or delay related to any of the Goods. The Merchant waives all defenses based on inconvenience of forum in all actions commenced in the venues agreed to under this Bill of Lading. Merchant shall pay all costs incurred by Carrier (including attorneys’ fees and expenses) in connection with any dispute between Carrier and Merchant (including for transfers of venue, for appeals, and in bankruptcy and receivership proceedings).
- c) If any provision of this Bill of Lading, or the application to any circumstance, Person, or place, is held to be unenforceable, invalid, or void by a court or other tribunal of competent jurisdiction, such provision shall be severed therefrom or shall be reformed only to the extent necessary to be enforceable to such circumstance, Person, or place; and such provision as applied to other circumstances, Persons, or places, and the remainder of this Bill of Lading, shall remain in full force and effect.
- d) The Carrier’s rights and remedies provided in this Bill of Lading or otherwise existing or arising by agreement, at law, in equity or admiralty, or otherwise, are cumulative. All of Carrier’s rights and remedies may be exercised, wholly or in part, from time to time, as often, and in any order as Carrier chooses, and the exercise or the beginning of the exercise of any right or remedy shall not be construed to be an election of rights or remedies, or a waiver of the right to exercise at the same time or thereafter any other right or remedy.
- e) None of Carrier’s rights under this Bill of Lading shall be construed to impose any obligation on Carrier. No delay or omission by Carrier in the exercise of any right or remedy accruing upon any default shall impair any such right or remedy or be construed to be a waiver of any right to take advantage of any such future event or of any such past default. In case Carrier proceeds to enforce any right or remedy, and such enforcement is discontinued or abandoned for any reason or is determined adversely to Carrier then, and in every such case, Carrier and Merchant shall be restored to their former positions and rights and all rights and remedies shall continue as if no such proceedings had been taken.
27) AMENDMENTS AND WAIVERS
- a) No amendment or waiver of any provision of any of this Bill of Lading and no consent to any departure therefrom shall be effective against Carrier except by means of a writing signed by a duly-authorized representative of Carrier. Waivers or consents by Carrier shall be effective only in the specific instances and for the specific purposes for which they are given. This Bill of Lading shall not be deemed amended, modified, qualified, or supplemented by any course of dealing or course of performance.
28) CARRIER TARIFF
- a) Copies of Carrier’s tariff are obtainable from Carrier upon request or where applicable from the Federal Maritime Commission or other government agency with whom its tariff has been filed. Carrier may from time to time change the terms of this Bill of Lading. The current and applicable terms of this Bill of Lading can be found on Carrier’s website at www.insticogl.com and may differ from the pre-printed terms for the Bill of Lading.
- b) In the event of a conflict between the terms of this Bill of Lading and the updated version in Carrier’s tariff in effect on the date that cargo is received by Carrier for transport under this Bill of Lading, the updated version shall control.
29) DATA PROTECTION
- a) Merchant represents and warrants that it complies with all applicable privacy and data protection laws with respect to personally identifiable information about individual contacts of Merchant and clients of Merchant (“Merchant Data”) that Merchant provides to Carrier to allow Carrier to perform services.
- b) Merchant acts as a “data controller” or an equivalent term under applicable Law with respect to Merchant Data. Merchant further represents and warrants that it has obtained the proper consent from all data subjects to the disclosure and transfer of Merchant Data to Carrier. In providing services to Merchant, Carrier may process Merchant Data and thus act as a “data processor” or an equivalent term under applicable Law with respect to such data and will process Merchant Data in accordance with lawful instructions from Merchant.
- c) Carrier may use Merchant Data as part of its Merchant account opening and general administration process (e.g., in order to carry out compliance, financial checks, invoicing, or debt recovery), and otherwise in performing services. For purposes herein, the information may be transferred to or accessible from Carrier’s offices around the world.
InstiCo Express T&C
NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual agreements and provisions hereinafter set forth, the Parties hereby mutually agree as follows:
Term. This Agreement shall remain in full force and effect for a year period beginning on the date of customer’s signed credit application and acknowledgement of our terms and conditions and continuing thereafter on a year-to-year basis. Either Party may terminate this Agreement at any time, with cause, upon thirty (30) days’ written notice to the other party. Both parties agree to give the other 30 days written notice to remedy any issues prior to terminating this agreement.
Scope of Agreement. Carrier (InstiCo Express) is a motor carrier under 49 U.S.C. 13102(12), is duly registered with the Department of Transportation pursuant to 49 U.S.C. 13902 and 13905 with a Motor Carrier Safety Rating of “ NA”, and will provide lawful and responsible transportation service to Shipper under contract. Shipper will tender Carrier freight for transportation. The scope of the service contemplated by the Parties is set forth in separate appendixes. Carrier shall be an independent contractor of Shipper. As between the Parties, Carrier shall have the sole and exclusive responsibility for the costs and over the manner in which its employees and/or independent contractors perform the transportation service, including the equipment provided.
Rates, Charges, and Payment Terms.
Shipper shall pay Carrier, within 30 days of the shipment date shown on the invoice, the amounts calculated in accordance with the schedule of rates and charges attached hereto in the Scope of Work in Appendix A, including any written supplements thereto, and as otherwise set forth in this Agreement. No offsets may be taken against invoiced charges. Carrier shall apply Shipper’s payment to the amount due for the specified invoice, regardless whether there are earlier unpaid invoices. Carrier may assess a service charge of 5 % per month (or the highest lawful rate, if less) for any delayed payments.
On billings to third parties, Shipper, as the contracting party with Carrier, will be responsible for all freight and related charges for transportation under this Agreement. As an accommodation to Shipper, Carrier shall bill a third party upon notice on the freight documentation the Parties utilize, but Shipper agrees to guarantee payment and stand as primary debtor. Carrier shall: (i) advise Shipper if third party payment is not made within thirty (15) days of billing; (ii) assign to Shipper any rights Carrier may have to collect freight charges from the third party; and (iii) cooperate with Shipper in any collection proceeding instituted by Shipper, with the understanding that Carrier will be reimbursed reasonable expenses of so doing. Shipper will pay the third party freight bill within thirty
(30) days of the assignment provided above.
If Shipper does not pay the invoiced amounts, Carrier must commence civil action or final and binding arbitration proceedings to recover such invoiced amounts within eighteen (18) months of delivery or tender of delivery of the shipments involved. If Carrier alleges undercharges, or Shipper alleges overcharges, duplicate payment, or over-collection, notice of such claims or unidentified payments must be given within 180 days of receipt of the invoice and a civil action or arbitration proceeding must be filed within eighteen (18) months of delivery or tender of delivery of the shipments involved. The processing, investigation, and disposition of overcharge, unidentified payment, duplicate payment, or over-collection claims shall be governed by present federal regulations codified at 49 C.F.R. Part 378.
The Uniform Freight Documentation form set forth as Appendix D may be utilized by the Parties. The terms and conditions of this Agreement shall prevail over those appearing on that form or any other form(s) used by the Parties for the delivery of freight. Any form(s) used by the Parties shall only be used for the purpose of documenting the pick- up and delivery of freight. Either Party, at its option, may supply any document required by or referenced in this Agreement in either paper or electronic form (including, but not limited to, an electronically imaged, faxed, photocopied, or online posted version), and any such version shall be sufficient for all purposes under this Agreement. Unless specifically agreed to by the Parties, any joint movement involving another transportation entity to or from a point outside the U.S. shall not be considered as moving on a “through” bill of lading. Carrier agrees not to subcontract, broker, interline, or to use “substituted services” by rail or motor carrier without the specific approval of Shipper. If for any reason this is done without permission, Carrier shall be liable to Shipper for any cargo loss, damage, or injury to the same extent as if Carrier performed the service.
Carrier shall maintain during the term of this Agreement (a) workers’ compensation insurance on all employees, as required by applicable state law, (b) automobile and property damage liability insurance with limits of liability of not less than
$1,000,000 per occurrence, (c) cargo insurance to cover damage to or loss of cargo in the amount of $100,000 per occurrence, and (d) general liability insurance with limits of liability of not less than $1,000,000 per occurrence. The required insurance shall cover the entire geographic scope in which the Carrier will operate under this Agreement and, as applicable, be “Broad Form.” Upon request, Carrier will furnish Shipper with a certificate of insurance from a reputable insurance company evidencing such insurance. Carrier will request that its insurance company provide 30 days’ advance notice to Shipper prior to cancellation of such insurance. Neither Party waives any right to subrogation it or its insurers may have arising out of service provided pursuant to this Agreement. Notwithstanding the foregoing, if Carrier meets all applicable federal requirements, Carrier may self- insure. Upon request, Carrier shall furnish Shipper with proof of self- insurance.
Refused Shipment -Warehouseman Liability.
If the consignee refuses the lading tendered by Carrier or if Carrier is unable to deliver the lading because of fault or mistake of Shipper or the consignee, or if Shipper advises and instructs Carrier to stop movement of the lading and to hold it in transit, Carrier’s liability thereafter immediately shall be that of a warehouseman. The procedures which Carrier agrees to and will take as a warehouseman involve the use of ordinary care to keep the lading in a safe or suitable place or to store the lading properly. Carrier shall (a) attempt to give Shipper notice as soon as possible if the foregoing occurs, (b) place the lading in public storage, if available, unless Carrier receives contrary disposition instructions from Shipper within twenty-four (24) hours, and (c) if disposition instructions are not given by Shipper within ten (10) days of Carrier’s initial notification to Shipper, Carrier may offer the lading for public sale. In the case of perishable lading, Carrier may dispose of the lading at a time and in a manner Carrier deems appropriate. Shipper will be responsible for storage costs and reasonable costs Carrier incurs in acting as a warehouseman. To the extent any sale or disposal revenues exceed the storage costs and the costs Carrier incurs as a warehouseman, Carrier shall remit the balance to Shipper. If Shipper gives Carrier timely disposition instructions, Carrier shall use any commercially reasonable steps to abide with such instructions. Shipper will pay Carrier’s costs and any additional transportation costs Carrier incurs in doing so.
Carrier shall be liable to Shipper for loss or damage to lading occurring while it is in Carrier’s possession, except to the extent such loss or damage is caused by an act of God or a public enemy, a public authority, an act of Shipper, or the inherent vice or nature of the lading. Carrier’s possession of lading under this Agreement shall begin when Carrier has executed the freight documentation form for such lading and shall terminate upon the lading being tendered for delivery to Shipper’s consignee.
Carrier’s monetary liability will be limited to the amount of cargo insurance provided in Section 5 above. If Shipper asserts that the value of lading on a particular shipment shall exceed this amount, Carrier shall be advised twenty- four (24) hours before the time of tendering a load. Carrier may refuse the load or secure additional cargo insurance in the amount of liability Shipper claims, the cost of which shall be invoiced to Shipper as part of freight charges. Shipper also shall note any separately agreed value on the freight documentation form referenced in Section 4 above. If the freight Shipper tenders consistently exceeds the amount of cargo insurance provided in Section 5 above, the Parties shall agree in writing to an alternate cargo insurance amount, which will be reflected in freight charges otherwise assessed.
Claims for loss or damage to lading must be filed in writing by Shipper within nine (9) months from date of delivery, or scheduled date of delivery for lost lading, or in the absence of a scheduled delivery date, the filing period shall begin after a reasonable time has elapsed for delivery, and a civil suit or arbitration proceeding shall be commenced by Shipper within two (2) years from the date Carrier gives Shipper written notice Carrier is disallowing the claim or any part of it. Claims will be filed and resolved in accordance with federal regulations codified at 49 C.F.R. Part 370.
The measure of damages for loss of or physical damage to the cargo shall be the manufacturer’s cost of the lading.
In no event shall Carrier be liable to Shipper or anyone else for special, incidental, or consequential damages that relate to loss, damage or delay to a shipment. In no event shall Carrier be liable to Shipper or anyone else for punitive or exemplary damages that relate to loss, damage or delay to a shipment.
If Shipper loads and seals the lading in or on the trailer and Carrier does not have the opportunity to count the lading being loaded and the seal is intact upon delivery, Carrier shall be absolved from any liability for shortages or any damage to the lading except when proximately caused by independent action of Carrier. Such absolution of liability will also occur if (i) the seal is broken at the direction and under the supervision of an agent of a body politic, or (ii) trailers are preloaded and the adequacy of loading or count of such trailer is not practical by a representative of Carrier. Carrier agrees that if a seal is broken and an inspection made by an agent of a body politic, its operator or other representative will take all reasonable steps to secure the count, safety, and integrity of the lading. These steps will include requesting that the body politic reseal the trailer and/or make appropriate notation on the freight documentation form. Carrier may break the seal on a trailer if, upon Carrier’s determination or that of its operator or other representative, it becomes reasonably necessary to do so to inspect, reposition, or protect the lading or Carrier’s equipment or to comply with federal, state, municipal, or provincial laws, rules, and regulations. Shipper’s consignee may not refuse delivery of a shipment solely because the seal on a trailer is broken.
Shipper will have the right reasonably to determine to repair, repackage, salvage, or scrap damaged lading. If Shipper elects to salvage lading, Shipper shall notify Carrier to return the lading to Shipper or allow Carrier to dispose of the lading. If salvage is sought, at least two independent bids shall be obtained, and the highest bid accepted. Any monies received in salvage, whether accomplished by Carrier or Shipper, will be credited, if applicable, against any amount Carrier may otherwise be responsible for in terms of the damages. Shipper may condition salvage upon the removal of all identifying marks or labels or the lading being permanently marked as “damaged” or with a similar notation. If Carrier is retained by Shipper to return the damaged lading for repair, salvage, or scrapping, Shipper agrees to pay Carrier freight charges otherwise provided in this Agreement, or at a negotiated rate to be reduced to writing, without prejudice to recovery of such freight charges as damages. Damaged lading will not be scrapped unless repair and/or salvage is not feasible. If Carrier salvages the lading, Carrier may bill a reasonable charge for doing so against salvage receipts.
Carrier shall defend, indemnify, and hold Shipper and its employees and agents harmless from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) caused by and resulting from (i) the negligence or intentional misconduct of Carrier or its employees or agents, or (ii) Carrier’s or its employees’ or agents’ violation of applicable laws or regulations.
Shipper shall defend, indemnify, and hold Carrier and its employees and agents harmless from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) caused by and resulting from (i) the negligence or intentional misconduct of Shipper, its employees, or agents, or (ii) Shipper’s or its employees’ or agents’ violation of applicable laws or regulations.
In the event such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) are caused by the joint and concurrent negligence of the Parties, or the Parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable legal fees) shall be borne by each Party in proportion to its degree of fault.
In no event shall either Party be liable to the other under this Section 10 to the extent damages are incidental, consequential, special, punitive, or exemplary. Any indemnified party under this Section 10 shall promptly tender the defense of any claim to the indemnifying Party. Carrier’s liability for cargo damage shall be governed by Section 7 above.
Shipper shall identify any loads that contain Hazardous Materials, as defined in the Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq., as amended, and the regulations of the U.S. Department of Transportation made thereunder, at least 24 hours in advance of tendering to Carrier. Not less than 12 hours prior to the scheduled pick-up time, Carrier shall either: (i) decline such load, or (ii) accept such load on terms and conditions identified by Carrier in such acceptance, which terms may include market rates and the pass through of any associated costs to Shipper. If Carrier accepts such load, Carrier represents and warrants that it is fully qualified and authorized to transport Hazardous Materials in the United States. Carrier and Shipper certify that they are familiar with U.S. laws and regulations applicable to transportation of Hazardous Materials and that they will comply with all such laws and regulations. Carrier further certifies that its employees, including drivers, have been trained and instructed in the proper method of transporting Hazardous Materials. Upon Carrier request, Shipper will provide a copy of the Material Safety Data Sheet for the Hazardous Materials.
Legal Restraint or Force Majeure.
In the event performance by one Party is affected by any cause beyond the reasonable control of such Party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, or governmental request or requisition for national defense, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time mentioned herein and the performance of all obligations required herein shall be suspended during the continuance of such interruption, and such Party shall promptly notify the other Party of such interruption. Such period of suspension shall not in any way invalidate this Agreement, but on resumption of operations, any affected performance by such Party shall be resumed. Carrier shall be permitted an extension period equal to the period of suspension to complete shipments adversely affected by the suspension. No liability shall be incurred by either Party for damages resulting from such suspensions.
Business and Employment Opportunity.
Shipper agrees to notify Carrier twenty- four (24) hours before tendering any load that would subject Carrier to regulation under any non-discrimination laws, rules, orders, and regulations of governmental authorities, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246, and the rules and regulations promulgated thereunder, the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Act of 1974. If Carrier accepts such a load, the Parties agree to comply with any applicable non- discrimination laws, rules, orders, and regulations.
Any notice required or permitted to be given under this Agreement, unless otherwise indicated, shall be deemed sufficiently given if it is delivered by hand or sent by prepaid mail, registered or certified, return receipt requested, by a nationally recognized overnight courier, or facsimile transmission (with confirming copy sent first class mail) if sent to the address or fax number and to the attention of the individual noted in the signatory provision hereof.
The captions set forth in this Agreement are for convenience only and shall not be considered a part of this Agreement nor affect in any way the meaning of the terms and provisions hereof.
Successors and Assigns; Other Parties.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. This Agreement may not be assigned by either Party without the writ ten consent of the other Party, except to any wholly-owned subsidiary of such Party and, except in the case of Carrier, an assignment in connection with the sale of substantially all of the assets of Carrier or merger by Carrier with or into another entity.
This Agreement and the attached Appendices constitutes the entire agreement between the Parties hereto and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed, or implied, with respect to the subject matter hereof.
No amendment or modification of the terms of this Agreement shall be binding unless in writing and signed by the Parties.
Any term or provision of this Agreement that is held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
No waiver of any right, power, or privilege hereunder shall be binding upon any Party unless in writing and signed by or on behalf of the Party against which the waiver is asserted.
This Agreement may be executed in one or more counterparts, any or all of which shall constitute one and the same instrument.
The Parties desire that the provisions of this Agreement will have precedence over any federal or state provisions governing or dealing with the specific provisions of this Agreement. The Parties agree that pursuant to 49 U.S.C. § 14101(b)(1) they expressly waive any and all rights and remedies under the Interstate Commerce Commission Termination Act and Interstate Commerce Act as amended, and regulations promulgated thereunder, including Part B of Subtitle IV Interstate Transportation, 49 U.S.C. § 13101, et seq, (the “Acts”) that are inconsistent with the provisions of this Agreement. No Party shall challenge any provision of this Agreement on the ground that any such provision or provisions violates the waived rights and remedies under the Acts. To the extent no conflicts exist with this Agreement or federal law, the law of the State indicated in the Shipper’s address in the signatory provision hereof shall apply.
The Parties agree that this Agreement is being entered into in good faith and that if a dispute arises in its application or interpretation that:
They shall attempt to resolve said dispute between themselves or upon mutual agreement by the intervention of an experienced mediator and upon the terms and cost allocation agreed upon.
If a dispute is not resolved voluntarily, good faith considerations shall be given to submitting the dispute to final and binding arbitration under the Commercial Rules of the American Arbitration Association before a single arbitrator at a point mutually agreed upon or if no point is agreed upon at the offices of the Association which is approximately equal distance from the headquarters of the Parties. The award of the arbitrator may be enforced in any court of competent jurisdiction.
If arbitration is not agreed to, or if the dispute involves a remedy not otherwise available in arbitration such as, but not limited to, injunctions, criminal penalties, or certain equitable relief, civil action may be pursued subject to the following: (i) jury trials are waived by the Parties; (ii) service by certified mail to the persons specified as being entitled to notice under this Agreement and to the address shown shall constitute valid and binding service of process; and (iii) the State of Texas will be all governing laws (iv) Carrier may seek legal fees and court costs for any breach by Shipper
Any disputes which arise on movements to, from, or within Mexico and/or Canada which cannot be resolved between Carrier and Shipper shall be resolved by final and binding arbitration as provided in Section 23(b) above.
The Parties shall keep in confidence and not disclose to any third party (a) the terms of this Agreement, and (b) any confidential or proprietary information either learns about the other Party, such as, but not limited to, the rates, value, origin, destination, or consignee of any shipment made hereunder. The Parties may disclose such terms and information to the extent required by law, to obtain financing, to substitute service providers to the extent necessary to provide such substitute service, or to auditors retained for the purpose of assessing the accuracy of freight bills.
No Use of Name.
Neither Party may use the other’s name, trademarks, or trade names, or those of its subsidiaries or affiliates, in any manner, especially advertising, without the other’s expressed written consent, which may be withheld in such Party’s sole discretion.
Compliance with Laws and Regulations.
The Parties shall at all times comply with all applicable federal, state, municipal, and provincial laws, rules, and regulations including, but not limited to, the federal and state safety regulations. To the extent this Agreement or any services provided hereunder shall conflict with such laws, rules, and regulations, this Agreement and the services provided hereunder shall be modified to comply with such laws, rules, and regulations, and the Parties shall not be deemed in breach of this Agreement or suffer any liability or penalty for compliance with such laws, rules, and regulations. In the event Carrier, through no fault of its own, is delayed or removed from service by or because of an inspection by any body politic, Carrier shall not be deemed in breach of this Agreement, nor shall it suffer any liability or penalty under the terms of this Agreement.
Under no circumstances shall any of the commentaries to this Agreement be considered a part hereof.