Unless expressly superseded by a written contract signed by an officer of Advance Shipment Inc., (“Broker”) and the shipper, consignor, consignee, or any other entity claiming an interest in goods for which the Broker arranges transportation hereunder (collectively, “Shippers”), these Freight Brokerage Terms and Conditions (“Terms”) shall govern all property brokerage services provided by Broker for Shippers and shall supersede, and control over, any prior discussions, understandings, negotiations, and agreements between Broker and Shipper concerning transportation (motor carrier or otherwise), brokerage, and related services. The shipper represents and warrants that the Shipper has read these Terms in their entirety and, by using Broker’s brokerage services, Shipper fully understands, agrees to, and accepts these Terms in full. Should Shipper choose not to accept any of these Terms, Shipper shall decline, and not request or utilize the broker’s brokerage services. All shipments hereunder shall be governed solely by these Terms, and in no event shall any term, condition, or provision of any other pre-printed publication or agreement, including but not limited to a rate confirmation, load confirmation, bill of lading, or delivery receipt, or transportation document associated with the transportation of freight tendered hereunder not expressly set forth within this Agreement apply to, affect, or otherwise govern the relationship between Broker and Shipper.
Broker is duly licensed and authorized by the Federal Motor Carrier Safety Administration (“FMCSA”) as a broker in interstate commerce as defined in 49 U.S.C. § 13102 and, despite being authorized by the FMCSA as a motor carrier, the Broker is not operating as a motor carrier or employee or agent of a motor carrier. Broker contracts with a variety of third-party motor carriers (“carriers”) on behalf of Shippers, as an independent contractor, to sell, negotiate, providing and arranging for transportation of Shipper’s freight or cargo for compensation. Broker agrees to comply with all federal, state, and local laws in arranging for the transportation services contemplated under these Terms. Broker reserves the right, in its sole discretion, to refuse or cancel 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 The shipper and broker will arrange to have freight transported for Shipper by a duly licensed Carrier, between origin and destination points designated by the Shipper to pay the Carrier for transportation. Each shipment will be evidenced by a Bill of Lading (“BOL”), whether prepared by the Broker, Shipper, or Carrier. Where the BOL is prepared by the Shipper, The Shipper shall list the Carrier’s name on the BOL. Any insertion of Broker’s name on the BOL shall be for convenience only and shall not change the Broker’s status as a property broker or Shipper’s understanding that a Carrier shall be performing the actual transportation of shipments tendered hereunder. The shipper will cause it to be completed all the appropriate documents required for carriage, in regard to the services being requested, and the pickup or destination desired. Except as otherwise agreed in writing, all pickup, transit, and delivery times provided by Broker are estimates only and shall not serve to bind Broker or Carriers or to guarantee service by a date certain. In no event shall any Shipper require a Broker or Carriers to violate any laws or regulations to provide requested services.
The shipper will be liable to the 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. The shipper agrees to (i) pay the rate amount invoiced by Broker within thirty (30) days from the date of invoice without offset or deduction; (ii) assume responsibility for any future claim made against the Broker by a Carrier hired on the Shipper’s behalf for additional freight charges based on a difference between a rate asserted by such Carrier and the rate quoted by the Broker due to, including but not limited to, inaccurate weight, class, and accessorial information provided by Shipper; and (iii) indemnify Broker from any such claim. Broker may assess interest equal to one and a half percent (1.5%) per month (or the highest legal rate) on all invoices not paid within thirty (30) days. Broker shall be entitled to an award of all of its costs, expenses, and attorney’s fees incurred in connection with a collection. Broker reserves the right to amend or adjust charges, re-invoice Shipper, and/or make a post shipment adjustments in the following events: (a) if the original quoted amount was based upon incorrect information provided by the Shipper, or (b) if additional services by the Carrier were required, or (c) if the Shipper authorized the Carrier to perform pickup, transportation and delivery functions other than directed by the BOL. Unless otherwise stated by Broker in writing, all rate quotes shall expire after fifteen (15) minutes. All quotes are contingent upon Carrier availability. Any disputes by the Shipper of any invoice issued by the Broker will be made in writing, specifically indicating the nature of the dispute and must be received by the Broker at its principal place of business within thirty (30) days from the date of the invoice. In the event, the broker does not receive a timely written notice of the dispute, the invoiced charges will be definitively and conclusively presumed to be valid.
The shipper represents and warrants that: (i) it will be in compliance with all applicable laws, statutes, rules, regulations, customs, and ordinances (collectively, “Laws”), including but not limited to applicable Laws relating to classifying, tendering, packaging, labeling, and identifying the cargo to be transported and any handling obligations and instructions, 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; (iii) any individual or entity acting on behalf of the Shipper in scheduling shipments or undertaking any other performance hereunder has the right to act on behalf of and legally bind Shipper; and (iv) Shipper is authorized to tender any freight or cargo hereunder. The shipper agrees to provide accurate descriptions of all commodities, piece counts, and weights to the Broker before shipping and, at the time of tender further agrees to notify the Broker of all commodities shipped. Shipper acknowledges that certain commodities may be excluded by the Broker or Carriers and agrees that it shall not ship any item or commodity excluded by either the Broker or the transporting Carrier. All hazardous materials must be disclosed to both the Broker and the transporting Carrier before shipping. Broker assumes no liability for any claim, loss, or expense due to the failure of the Shipper to comply with the provisions of Article 4.
Broker shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement. All load tenders to the Broker shall be deemed to have been released to a value of $100,000 or less for purposes of shipment, Carrier insurance, and the limit of the Shipper’s recovery from the Carrier or its insurer for any loss, damage, delay, injury, mis- delivery, non-delivery, or destruction (collectively, “damage”) to Shipper’s freight, unless the broker and Shipper before such shipment, the Broker and Shipper mutually agree to a higher value in writing signed by an authorized representative of the Broker, in which case additional charges may apply. Shipper understands and agrees that: (i) Broker, as a third-party provider or intermediary assumes no liability for, and shall not be held liable for, any damage to the Shipper’s goods or claims of third parties relating to the acts or omissions of the Carrier engaged or any consequential damages arising out of the transportation of Shipper’s property; (ii) The shipper will look solely to the Carrier for any damage to goods in transit so that such Carrier may determine the standard liability cargo insurance coverage offered on any shipment; and (iii) a claim for cargo damage does not relieve the Shipper of payment to Broker under these Terms. It is further understood and agreed that Carriers may further limit their liability for loss, damage, and delay, and that Shipper shall be bound by the limitations of liability of any Carrier selected to transport the Shipper’s freight. Broker may assist the Shipper in investigating any claim for cargo damage and may further assist in the processing of The shipper’s claim with the Carrier, provided, however, Broker assumes no responsibility for the payment or denial of claims. The shipper must notify the Broker of, and file, claims for cargo damage with Carrier within nine (9) months from the date of such damage, which for purposes of these Terms shall be the delivery date or, in the event of non-delivery, the scheduled delivery date. The shipper hereby waives any damage claims that are noted on the BOL or for which the Shipper has not submitted a timely claim. Shipper must file any civil action in a court of law, by Article 9 herein, within two (2) years from the date the Carrier has disallowed any part of the claim in the notice. For all other claims, the Broker and Shipper shall notify each other within 60 days of learning of any claims and/or potential claims other than cargo damage claims, and shall file any such claims with the other party within 180 days from the date of notice. Civil action, if any, shall be commenced in a court of competent jurisdiction within 2 years from the date either Shipper or Broker provides written notice to the other party of such a claim.
Shipper shall be liable for, indemnify, defend, and hold harmless Broker, Broker’s affiliates, and their respective owners, officers, directors, employees, agents, and representatives from and against all alleged or actual claims, demands, liabilities, tow truck charges, losses, damages, penalties, actions, suits, costs, and expenses including, without limitation, reasonable attorney’s fees, and expert witnesses (collectively, “Claims”) arising out of or in connection with (i) Shipper’s breach of these Terms by Shipper or any third parties, Shipper employees, contractors or agents acting directly or indirectly on Shipper’s behalf (collectively, “Shipper Affiliates”); or (ii) any negligent or intentionally wrongful act or omission by the Shipper or Shipper’s Affiliates.
Broker is not liable for any loss, damage, miss-delivery or non-delivery of shipments transported under These terms are 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 the 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 are not acceptable for transportation or shipments acceptable only under certain conditions; (e) a Force Majeure event as defined herein; (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 to provide competitively rates for the services requested, that Broker and Shippers 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 for any (whether based in statute, contract, tort, or otherwise) is limited to the payments that the Broker has earned for its broker services concerning the subject shipment. Shipper specifically acknowledges that the Broker will have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constitute gross negligence. BROKER MAKES NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD ANY OF THE BROKER’S SERVICES OFFERED TO OR UTILIZED BY THE SHIPPER, ANY CARGO IN TRANSIT OR DELIVERIES, THE INFORMATION PROVIDED ON BROKER’S WEBSITE, SERVICES RELATED TO TRANSACTIONS CONDUCTED ON BROKER’S WEBSITE, ANY SOFTWARE, APPLICATIONS, OR DIGITAL PRODUCTS (INCLUDING, WITHOUT LIMITATION, TRANSPORTATION MANAGEMENT SOFTWARE) AND SERVICES OFFERED OR UTILIZED BY BROKER AND USED OR ACCESSED BY SHIPPER. IN NO EVENT WILL BROKER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS, BUSINESS, OR INCOME, ARISING OUT OF OR IN ANY WAY RELATING TO A SHIPMENT, THESE TERMS, OR BROKER’S WEBSITE, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE AND EVEN IF THE SHIPPER ADVISED THE BROKER OF THE POSSIBILITY OF SUCH DAMAGES.
In the event, that 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, pandemic, the bankruptcy of any Carrier or any other cause beyond its reasonable control (each, a “Force Majeure event”), and such party gives written notice to the other party identifying the nature of such Force Majeure event and when it began, and if the Force Majeure event continues for at least two (2) consecutive days, excluding weekends and holidays, then the obligations of the Broker and Shipper shall be suspended for the duration of the Force Majeure event.
Broker and Shipper expressly waive any rights and remedies allowed under 49 U.S.C. § 14101 to the the extent that such rights and remedies conflict with this Agreement and to the extent necessary to limit Broker’s liability as provided in Article 5 herein. Failure of the Broker to insist upon the Shipper’s performance under this Agreement or to exercise any right or privilege arising hereunder shall not be deemed a waiver of any other right or privilege hereunder or of Broker’s subsequent right to insist upon Shipper’s the performance or exercise of any rights or privileges herein. If a court of competent jurisdiction finds any provision of these Terms is invalid, illegal, or unenforceable, such provision shall be deemed modified to the minimum extent necessary to render it valid and enforceable, and the remaining provisions of These terms shall continue in full force and effect to the greatest extent permitted by law. These Terms shall be governed, construed, and enforced in accordance with, and interpreted under, the laws of the State of Florida without regard to the principles of conflict of law, except where federal law is cited herein as governing or otherwise preempts state law. Broker and Shipper further agree that the exclusive jurisdiction and venue for any lawsuit necessary to resolve a dispute arising out of or in connection with these Terms, or the breach thereof, shall be resolved solely, at the sole discretion of the Broker, in state or federal court having jurisdiction (i) in Florida or (ii) Wherever broker may be joined in a suit, action, or proceeding. Broker and Shipper expressly consent to and subject themselves to the exclusive jurisdiction of such courts, and hereby waive any objection, including but not limited to any objection based upon the grounds of forum non conveniens, to the bringing of any action or proceeding in such jurisdiction. Broker and Shipper waive any right to a jury trial. The shipper agrees to pay all reasonable expenses, attorney fees and costs including court costs that Broker incurs in any action in which Broker prevails, including but not limited to an action to enforce the terms of this Agreement. It is understood and agreed that the relationship between Broker and Shipper is that of an independent contractor. Nothing herein, or any act or omission of either Broker or Shipper shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between Broker and Shipper. The shipper agrees to hereby release and waive any claims or defenses based, in whole or in part, on Shipper’s not having read, known, or understood these Terms.
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