TERMS AND CONDITIONS OF SERVICE
This confirms that Customer is applying for credit to be extended to Customer for the purposes of obtaining goods and/or services from the Company, and this serves to authorize the Company to contact all parties listed in this Application, including, without limitation, all banks, lenders, landlords, and other creditors and lenders, and provide Company with the necessary information pertinent to this Application.
For the purpose of obtaining the services described in the Agreement to Terms and Conditions of Service below, and any future credit granted to Customer by the Company, Customer hereby (1) represents and warrants that all of the information contained in this Application is true, correct and complete, (2) authorizes the Company to rely upon the information provided herein, and (3) further authorizes the Company, or its agents, to verify them and obtain additional information concerning Customer’s credit or financial history or any other information, including credit reports, to obtain and evaluate the credit experience of Customer with others, and to answer any questions about Customer’s credit experience and other financial relationships with others. This Application is the property of the Company.
In consideration for the extension of open account credit requested herein, Customer acknowledges and agrees that each invoice for services provided by Company to Customer is payable upon receipt and within 30 days from invoice date, without offset. Customer agrees that invoices not paid per these terms will incur a service charge of 1.5% per month. Customer warrants that it has reviewed and agrees to be bound by these terms and the Terms and Conditions of Service incorporated herein and found on the following page.
Certification of credit information and Agreement to Terms and Conditions of Service:
TERMS AND CONDITIONS OF SERVICE
These terms and conditions of service constitute a legally binding contract between the Company and the Customer and shall apply, as may be amended from time to time, to all transactions by Customer with or through Company.
1. Definitions.
(a) "Company" shall mean VIEWDIA, LLC as well as its respective subsidiaries, related companies, agents and/or representatives;
(b) "Customer" shall mean the person or entity for which the Company is rendering service, as well as its agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper's agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
(c) "Documentation" shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) "Third Parties" shall include, but not be limited to, the following: motor carriers, air carriers, vessel operators, freight forwarders, indirect air carriers, ocean transportation intermediaries, customs brokers, agents, warehousemen and other vendors to which the goods are entrusted for transportation, cartage, consolidation handling and/or delivery and/or storage or otherwise.
2. Applicability and Scope of Services.
Unless expressly superseded by a written contract signed by an officer of Company and the party requesting services by Company including, but not limited to, any Customer, these Terms and Conditions shall govern property brokerage service (which, for purposes hereof, shall mean the arrangement of motor carrier transportation to be performed by Third Parties) provided by Company (“Services”), including Services provided pursuant to a load confirmation. Customer understands that the Company acts as a property broker to arrange transportation and ancillary services; the Company is not a carrier or indirect carrier of any type and does not perform services as a “freight forwarder” as that term is defined at 49 USC § 13102(8) or any successor statute. These terms and conditions of service do not comprise a contract for carriage and Company does not issue waybills or bills of lading. Any terms and conditions on document exchanged between the parties other than these Terms and Conditions, as revised from time to time, shall not apply to any Services and shall not be binding on or applicable to Company. Company and Customer represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in these Terms and Conditions shall be deemed to require Company to provide Services upon request of Customer and Company reserves the right to accept or decline, in its sole discretion, any particular request for Services.
3. Engaged Third Parties and Liability of Third Parties for Cargo Loss or Damage
(a) Customer authorizes Company to select and engage Third Parties on Customer’s behalf pursuant to the contractual terms of such Third Parties and/or pursuant to the contractual terms entered by Company with such Third Parties on Customer’s behalf, to which Customer will be bound in all instances. Customer may request from Company the relevant contractual terms pursuant to which Third Parties are or may be engaged on their behalf.
(b) Company’s sole responsibility with respect to selection and retention of Third Parties that are motor carrier is to make reasonable efforts to place Customer’s loads with responsible Third Parties: (i) authorized to perform the services required by Customer; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. Company makes no express or implied warranties or guarantees concerning delivery time or the locating of a Third Party to provide the transportation services requested by Customer.
(c) Third Parties to whom goods are entrusted may limit their liability for cargo loss, damage, or delay pursuant to contractual terms and/or applicable law. In the absence of Customer declaring a value for increased liability, or if Third Parties refuse declared value for liability, Third Parties will perform services subject to liability limitations inuring to their benefit under applicable law and/or contractual terms, which will apply to the transportation of Customer’s goods and to which Customer will be bound.
(d) Customer is hereby given notice that the time-for-claim and time-for-suit against Third Parties is limited pursuant to contractual terms and/or applicable law; Customer should make written exception at time of delivery and/or make written claim against responsible Third Parties immediately upon discovery of any facts which could give rise to a claim in order to preserve rights against responsible Third Parties.
(e) Customer acknowledges and agrees that failure or alleged failure by the Third Party to comply with shipment handling instructions, or a broken, missing or unreadable trailer seal, shall not result in any presumption that a shipment has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. In no event shall Company or the Third Party be liable for any loss, damage or destruction of cargo occurring while the cargo is not in the possession of the Third Party. If the Third Party receives a trailer or container that is loaded and sealed at the time possession is transferred to the Third Party, and the trailer or container is delivered with the seal in-tact, there will be a presumption that any loss, damage or destruction occurred while the trailer or container was in the possession of a party other than the Third Party unless overcome by clear and convincing evidence to the contrary. In no event will Company have any liability arising from or related to the Third Party’s refusal to accept full value liability or the Third Party otherwise limiting its liability for cargo loss. Damage and/or delay. Company shall be under no obligation to arrange, and Third Parties shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; Company’s sole obligation is to ensure Third Parties provide services with reasonable dispatch. Customer acknowledges and agrees that the sole liability of Company with respect to loss, damage or delay to cargo shall be as set forth in this provision and Customer warrants and represents that if it is not the owner of such cargo, Customer holds authority from such owner to bind the owner to the provisions of these Terms and Conditions.
4. Insurance for Goods.
Company shall comply with all insurance and bonding requirements imposed upon it by applicable law, including its obligation to maintain a surety bond or trust fund agreement. It is Customer’s responsibility to insure its goods. Company is under no obligation to procure insurance through Third Parties on Customer's behalf unless selected by Customer and confirmed by Company; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance. Any and all insurance coverage shall be subject to the insurance policy’s insuring terms and conditions. Company makes no warranty or representations of insuring terms and conditions. Customer may request that Company obtain from Third Parties, and provide to Customer, a copy of the insuring terms and conditions which are or may be applicable to Customer’s goods.
5. Company’s Liability for Cargo Loss or Damage; Dispute Resolution
(a) As a property broker providing Services, Company has no carriage liability and is only liable for cargo loss or damage to the extent caused by its independent negligence, errors and/or omissions, for which it limits its liability to the lesser of US$50 per shipment or transaction in accordance with industry standards. Company assumes no responsibility or liability for any action(s), inaction(s), error(s) and/or omission(s) of Third Parties or their agents, and shall not be liable for any delay or loss of any kind, which occurs while Customer’s goods are in the custody or control of a Third Party or the agent of a Third Party; all such claims shall be brought solely against the Third Party or its agents. In connection with any Customer claim against a Third Party or its agent, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company in cooperating.
(b) In no event shall Company be liable or responsible for any special, incidental or consequential damages regardless of whether the party to be charged had notice of the possibility of such damages.
(c) In no event shall Company be liable or responsible for damages attributable to circumstances of Force Majeure. For purposes of these Terms and Conditions, Force Majeure includes, but is not limited to, Acts of God, acts of public enemies, cyber criminals, laws and regulations, restraints of government, network outages, and any other causes of any type that are not reasonably within the control of Company and that could not have been overcome by the exercise of ordinary diligence. Company shall notify Customer with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof, and shall provide Customer from time to time with correct information concerning same.
(e) These Terms and Conditions shall be deemed to have been drawn in accordance with the statutes and laws of the state of Michigan and in the event of any disagreement or dispute regarding services subject to these Terms and Conditions, to the extent not otherwise governed by federal law, the laws of Michigan shall apply and suit must be brought in Oakland County, Michigan, as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes between them or otherwise involving Company’s Services
6. Quotations Not Binding
Quotations as to fees, rates and/or charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding until the transaction is confirmed.
7. Shipping Documents; Reliance on Information Furnished
(a) Shipments tendered hereunder may be evidenced by a bill of lading or similar transportation document. In no event will Company being shown as the “carrier” on any such document change Company’s status as a property broker. Upon request of Customer, Company shall request that Third Parties obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery.
(b) In accepting data from Customer and submitting that data to Third Parties, the Company relies on the correctness of all Documentation, whether in written or electronic format, and all information furnished by Customer; Customer warrants the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer's failure to disclose information or any incorrect or false statement by the Customer upon which the Company reasonably relied. The Customer has an affirmative non-delegable duty to disclose any and all information required to transport, import, export and/or enter the goods. Inaccurate or incomplete dimensions and/or weight information provided by Customer may result in additional charges to Customer. Customer shall be liable for all consequences of inaccurate or incomplete dimensions and/or weight information, which may include damages and/or penalties.
(c) Without in any way limiting the foregoing, if Customer tenders for transportation cargo designated as hazardous materials or dangerous goods, Customer shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Services is first initiated by Customer to Company. Customer warrants and represents that no specialized handling, including segregation or temperature control, is required unless Customer provides written notice of specialized handling requirements at the time of request for Services to the specific shipment to which the specialized handling requirements apply (such notice a “Handling Notice”). In no event will Company have any obligation to provide any instructions to Third Parties with respect to cargo other than those contained in a Handling Notice, receipt of which has been confirmed in writing by Company, and Company has no obligation to comply with or pass on to Third Parties any handling instructions received after the initial request for service. Customer acknowledge and agrees that Company’s sole obligation with respect to specialized handling is to pass through the instructions in a Handling Notice.
8. Indemnification/Hold Harmless; Warranties.
The Customer agrees to indemnify, defend, and hold the Company harmless from and against, and shall pay and reimburse Company for, any claims, damages, fines, judgments, penalties, amounts (including reasonable attorney fees) and/or liability arising from: (i) breach by Customer of these Terms and Conditions; (ii) the negligence or other wrongful conduct of Customer, its agents, employees, or contractors; (iii) violation by Customer, its agents, employees, or contractors of any Federal, State and/or other laws or regulation; (iv) Customer’s failure to provide, or Company’s or the Third Party’s compliance with or reliance on, instructions, directions, or requests of Customer; or (v) a third party seeking to impose liability on Company with respect to cargo loss, damage, or delay in excess of the liability expressly assumed herein. In the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company. The Services are provided “as is” and “as available”, without warranties of any kind, either express or implied, including, but not limited to, warranties of fitness for a particular purpose. Any other provisions of these Terms and Conditions notwithstanding, Company is not liable for the consequences of identity theft or fraudulent or criminal conduct of third parties, including utilizing the services of entities representing themselves to by Third Parties or representatives thereof. If Company has provided Customer with any information regarding the identity of the Third Party, including, but not limited to any motor carrier or its driver’s name, Customer will, or if Customer is not the consignor, Customer will require the consignor to, confirm the information prior to tendering a shipment and will not tender the shipment if the information of the motor carrier or driver that arrives to retrieve a shipment is not the same as the information provided by Company. Company will not be liable for any loss or damage incurred by Customer arising from or related to the tendering party’s failure to verify Third Party or a motor carrier’s driver information.
9. Inspection Consent.
Goods tendered for transportation may be subject to security controls by Third Parties and government officials. The Customer expressly consents to searches / inspections / screenings of all goods in accordance with applicable Third Parties protocols, government security controls, security initiatives, and administrative regulations, including, but not limited to, the regulations of the U.S. Transportation and Security Administration.
10. General Lien and Right to Sell Customer's Property.
Company shall have a general and continuing lien on any and all claim payments by third parties to Customer and on any and all property of Customer coming into Company's actual or constructive possession or control for monies owed to Company with regard to the goods on which the lien is claimed, a prior shipment(s) of goods and/or both. Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its goods of Company's rights and/or the exercise of such lien. Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such good(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
11. Records
Customer waives access to Company’s records pursuant to 49 C.F.R. Part 371. Customer acknowledges that Company only keeps such records that it is required to maintain by applicable law, and does not act as a "recordkeeper" or "recordkeeping agent" for Customer.
12. Terms and Conditions Subject to Change.
Company reserves the right to modify these Terms and Conditions from time to time in its sole discretion and without notice to Customer. Transactions will be governed by the Terms and Conditions in effect at the time of the transaction, as may be verified online at [ www.freight-pal.com ]
13. Special Power of Attorney
Customer authorizes Company to act for and on its behalf as true and lawful agent and attorney of the U.S. Principal party in Interest (USPPI) for, and in the name, place, and stead of the USPPI, in the U.S. either in writing, electronically, or by other authorized means to: act as authorized agent for export control, U.S. Census Bureau reporting, and U.S. Customs and Border Protection purposes; also, to prepare and transmit any Electronic Export Information (EEI) or other documents or records required to be filed by the U.S. Census Bureau, U.S. Customs and Border Protection, U.S. Department Commerce-Bureau of Industry and Security, or any other U.S. Government agency, and perform any other act that may be required by law or regulation in connection with the exportation or transportation of any goods shipped or consigned by or to the USPPI, and to receive or ship any goods on behalf of the USPPI.
The USPPI hereby certifies that all statements and information contained in the documentation provided to Company and relating to exportation is and will be true and correct. The USPPI understands that civil and criminal penalties may be imposed for making false or fraudulent statements or for the violation of any U.S. laws or regulations on exportation.
Customer shall hold Company harmless from and shall defend and indemnify Company against any action or assessment by a governmental authority arising from any breach by Customer of Customer’s export compliance obligations. This power of attorney is to remain in full force and effect until revocation in writing is duly given by the USPPI and received by the Company.
14. Customer Credit and Compensation of Company.
(a) Upon approved credit, payment terms to Company are net 30 days from invoice date, without offset. Customer and bill-to parties are jointly and severally liable for the Company’s charges, but Customer acknowledges and agrees that Company can cancel credit at any time, including after commencement of services, in which case, charges are immediately due and payable upon demand. The Company’s charges may be reversed to the responsible parties if a shipment of goods is refused or payment is not made by the original bill-to party.
(b) All charges are earned in full upon Company’s agreement to provide services. Company will charge and Customer will pay the rates and charges set forth in a load confirmation or as otherwise agreed, as well as any other amounts for which Customer is liable pursuant to these Terms and Conditions, for services provided by Company without offset. The charges and compensation of the 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 the Company to transport and deal with the goods. Customer shall also be liable for any expenses, including attorney fees, Company incurs in collecting its rates and charges. Customer may request from Company a detailed breakout from Company of the components of all charges assessed and a true copy of each pertinent document relating to these charges.
(c) It shall be a condition precedent of liability of Company and/or Third Parties to Customer for any claim, however arising, that Customer pay Company any and all charges owing Company relating to the claimed transaction, a prior transaction, subsequent transaction or any combination thereof.
(d) Company shall be entitled to a late fee of 1.5% per month (18% per annum). In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
(e) If any information provided by Customer is inaccurate or incomplete, Customer acknowledges and agrees that agreed upon rates may, in Company’s sole discretion, be revised to reflect the goods actually tendered. Customer shall also be responsible for any additional accessorial charges imposed by the Third Party which were not anticipated by Company at the time Company arranged for services with Third Parties or which were not otherwise included in the rate set forth in the load confirmation. In no event will Company have any responsibility for, and Customer will defend, indemnify, and hold Company harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of Customer is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities. Without limiting the generality of the foregoing, Company shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations. Customer is liable for all charges arising from Services, including, but not limited to, any and all amounts assessed by third parties (including fuel surcharges, peak season surcharges, general rate increases, or amounts intended to cover assessments by third parties (including government regulators)), costs related to requests for cancellation (including charges for Services rendered prior to cancellation), costs related to requests for reconsignment or otherwise due to inaccurate or incomplete information provided by or on behalf of Customer.
15. Severability.
In the event any paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
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