SOLISTICS, INC. (“BROKER”) TERMS AND CONDITIONS AS BROKER
THESE TERMS AND CONDITIONS (“TERMS”) GOVERN ALL SERVICES BY BROKER TO SHIPPER. BROKER AGREES TO PROVIDE THE SERVICES ONLY UPON THE TERMS CONTAINED HEREIN. BROKER’S ACCEPTANCE OF SHIPPER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON SHIPPER’S ACCEPTANCE OF BROKER’S TERMS SET FORTH BELOW.
1. SERVICES:
Broker is duly licensed and authorized by the Federal Motor Carrier Safety Administration as a transportation property broker in interstate commerce and is not a Carrier within the meaning of USC Title 49. Broker contracts with a variety of with safe and qualified surface freight carriers (“Carriers”) on behalf of shipper (“Shipper”) for the purpose of obtaining discounted rates for transportation. Broker reserves the right, in its sole discretion, to refuse any shipment at any time. Broker agrees that, upon the request of Shipper and subject to the availability of the Carrier(s), on behalf of Shipper, Broker will arrange to have freight transported for Shipper by a duly licensed Carrier, between origin and destination points designated by Shipper and to pay the Carrier for the transportation. Shipper will use Broker’s Bill of Lading (“BOL”). Shipper will cause to be completed all the appropriate documents required for carriage, in regard to the services being requested, and the pick up or destination desired.
2. RATES AND PAYMENT:
Shipper will be liable to Broker for all charges paid by Broker on account of transportation arranged for Shipper by Broker. Such charges may include transportation, fuel surcharges, and other applicable accessorial charges, all adjustments issued by the Carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. Shipper agrees to: (i) pay the rate amount invoiced by Broker within ( ) days from date of invoice; (ii) assume responsibility for any future claim made against Broker by a Carrier hired on Shipper’s behalf for additional freight charges based on a difference between a rate asserted by a Carrier and a rate quoted by Broker due to, including but not limited to, inaccurate or incorrect weight, class and accessorial information provided by Shipper; and (iii) indemnify Broker from any such claim. Broker may impose a late payment charge equal to the lesser of one percent (1%) per month on the outstanding balance or the maximum rate allowed by law and all collection costs including reasonable attorneys’ fees. Broker reserves the right to amend or adjust charges, re-invoice Shipper and/or make post shipment adjustments in the following events: (a) if the original quoted amount was based upon incorrect information provided by Shipper, or (b) if additional services by the Carrier were required, or (c) if Shipper authorized the Carrier to perform the pick up, transportation and delivery functions other than directed by the BOL. Any disputes by Shipper of any invoice issued by Broker will be made in writing, specifically indicating the nature of the dispute and must be received by Broker at its principal place of business within thirty (30) days from the date of the invoice. In the event Broker does not receive timely written notice of the dispute, the invoiced charges will be definitively and conclusively presumed to be valid.
3. OBLIGATIONS OF SHIPPER:
Shipper represents and warrants that: (i) it will be in compliance with all applicable laws, rules, regulations, customs (“Laws”), including but not limited to applicable Laws relating to customs, import and export requirements imposed by each country to, from, through or over which the shipment may be carried; (ii) it agrees to furnish such information and complete and attach to each BOL such documents as are necessary to comply with such Laws; and (iii) any individual or entity acting on behalf of Shipper in scheduling shipments or undertaking any other performance hereunder has the right to act on behalf of and legally bind Shipper. Broker assumes no liability for any claim, loss or expense due to the failure of Shipper to comply with the provisions of this section and Shipper will indemnify and hold Broker harmless for any claims or damages resulting from violation of this section, including attorneys’ fees and costs.
4. CLAIMS AND INSURANCE:
Shipper agrees that: (i) it will look solely to insurance provided by the Carrier for damage to goods in transit and each Carrier will determine the standard liability cargo insurance coverage offered on any shipment; (ii) a claim for damages does not relieve Shipper for payment to Broker under these Terms; and (iii) all freight cargo claims will be submitted immediately to Broker to help ensure timely resolution, in accordance with Broker’s claim process which is subject to change from time to time. Broker will assist Shipper in the resolution of freight claims, provided, however, Broker assumes no responsibility or liability with respect to the payment or denial of claims.
5. INDEMNIFICATION:
Shipper will indemnify, hold harmless and defend Broker, its officers and employees from all loss, damage, cost and expense, or claims of liability therefore, including reasonable attorneys’ fees, resulting from: (i) any negligent or intentionally wrongful act or omission by Shipper; or (ii) breach of these Terms by Shipper, its agents or employees.
6. LIMITATION OF LIABILITY:
Broker is not liable for any loss, damage, miss-delivery or non-delivery of shipments transported pursuant to these Terms caused by: (a) the act, default or omission of a Carrier, Shipper or any other party who claims interest in the shipment; (b) the nature of the shipment or any defect therein; (c) a violation by Shipper of any provision of these Terms, the BOL, Carrier’s policies including improper or insufficient packaging, securing, marking or addressing; (d) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions; (e) a Force Majeure event as defined herein, or (f) the acts or omissions of any person other than employees of Broker, or (g) the selection of Carrier for a particular shipment. Shipper acknowledges that in order to provide competitive rates for the services requested, that the parties have agreed as a material term of these Terms that the burden of any loss or damage incurred as a result of Broker’s alleged liability has been shifted to the Shipper, and that in any event the maximum amount of Broker’s liability is limited to the payments that Broker has earned with respect to the subject shipment. Shipper specifically acknowledges that Broker will have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constituted gross negligence. BROKER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT, OR DELIVERIES, OR WITH REGARD TO THE INFORMATION PROVIDED ON BROKER’S WEBSITE, OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON BROKER’S WEBSITE. IN NO EVENT WILL BROKER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.
7. CONFIDENTIALITY:
Neither party will disclose these Terms to a third party without the written consent of the other party, except (a) to extent that such disclosure may be required to effectuate these Terms; (b) as required by law or regulation; (c) when disclosure is made to its parent, subsidiary or affiliated companies; or (d) to facilitate rating or auditing of transportation charges by an authorized agent who has signed a Confidentiality Statement with Shipper or Broker.
8. FORCE MAJEURE:
In the event either party is unable to perform its obligations under these Terms as a result of acts of God, labor disorders, fire or other casualty, closing of the public highways, governmental interference, the bankruptcy of any Carrier or any other cause beyond its reasonable control, and such party gives written notice to the other party identifying the nature of such force majeure and when it began and if the force majeure continues for at least two (2) consecutive days, excluding weekends and holidays, then the obligations of the parties hereunder shall be suspended for the duration of the force majeure. The suspension of obligations under this section shall not cause the term of these Terms to be extended.
9. MISCELLANEOUS PROVISIONS:
The confirmation and these Terms constitute the entire agreement between Shipper and Broker relating to the ordered services. No modification of the confirmation or these Terms will be effected by the BOL applicable to any shipment brokered under these Terms, acknowledgment or acceptance of other shipping instruction forms or any other document containing terms and conditions at variance with or in addition to these Terms, all such varying or additional terms being deemed invalid. No waiver by Broker or default by Shipper shall be deemed a waiver of any subsequent default. The invalidity, illegality, or unenforceability of any one or more provisions hereof shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions hereof, which shall remain in full force and effect. These Terms shall be governed by the laws of the state of California, without giving effect to its principles of conflicts of law. Any notices required by these Terms will be sent by certified mail or registered mail or with a national overnight courier service to the addressed listed in the quote. All notices to Broker must include a copy to: Solistics, Inc., PO Box 2440, Costa Mesa, CA 92628, and Attention: Solistics General Counsel. The failure of a party to these Terms to object to or to take action with respect to the conduct of the other party which is in violation of the terms hereof will not be construed as a waiver of any rights the non-objecting party may have, nor of any future claims of breach or wrongful conduct. Broker is an independent contractor and not an employee of Shipper. These Terms will be governed by Delaware law. In the event of any legal action to enforce the provisions of these Terms, the prevailing party will have the right to an award of its reasonable attorneys’ fees and costs related to the action.