General
Terms and Conditions
for
Surface Transportation
1. These
General Terms and Conditions for Surface Transportation (“General Terms”) apply
to all property broker services (“Services”) provided by Marubeni Transport
Service Corp. (“MTS” or “Company”) and may be amended from time to time by MTS
in its sole discretion. Services, for
purposes hereof, shall mean the arrangement of motor carrier transportation to
be performed by third party Servicing Motor Carriers (as defined below)
provided by MTS (“Services), including services provided pursuant to a load
confirmation. Any terms and conditions
on a document exchanged between the parties or any other document, including
bills of lading, other than these General Terms shall not apply to any Services
and shall not be binding on or applicable to MTS. Customer understands and agrees that BROKER
functions as an independent entity, and not as a carrier, in selling,
negotiating, and arranging for transportation for compensation, and that the
actual transportation of shipments tendered to MTS shall be performed by
third-party motor carriers (“Servicing Motor Carriers”). MTS 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 General Terms shall be
deemed to require MTS to provide Services upon request of Customer and MTS
reserves the right to accept or decline, in its sole discretion, any particular request for Services.
2. Customer
affirms that information furnished in its application with Company is current
and accurate. These General Terms supersede any prior terms or agreements
between Company and Customer related to the subject matter of these General
Terms and are effective for one (1) year, automatically renewing for successive
one (1) year periods, unless terminated by either party by providing 30 days
written notice to the other party. If, however, the parties continue to conduct
business after termination, these General Terms will apply.
3. Customer
warrants and represents that it is authorized to tender the cargo in question
to MTS and that all descriptions of the cargo are complete, accurate, and
include all information required by applicable law, rules
or regulation. 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 MTS.
When requesting service with respect to any shipment containing food
that is subject to regulations of the Food and Drug Administration (“FDA”)
(hereinafter, “Food”), Customer shall be solely responsible for identifying
handling obligations necessary for the safe and sanitary handling of food and,
at the time of the initial request for services with respect to the individual
shipment, will provide written notice (each a “Food Handling Notice”) to MTS
that the consignment contains Food which Food Handling Notice must also include
any special instructions or handling requirements to be imposed on the
Servicing Motor Carrier. Any such Food
Handling Notice shall specifically identify the consignment to which it relates
and in no event shall any Food Handling Notice apply to more than one shipment
regardless of whether MTS confirms receipt of a Food Handling Notice purporting
to apply to multiple conveyances. In no
event will MTS have any obligation to provide any instructions to the Servicing
Motor Carrier with respect to cargo other than those expressly noted by the Customer
on a load confirmation provided by MTS to Customer and MTS has no obligation to
comply with or pass on to the Servicing Motor Carrier any handling instructions
received after the initial request for service. If Customer does not provide a Food
Handling Notice, Customer warrants and represents that the cargo is
appropriately packaged to ensure safe and sanitary transportation without the
need for any specialized handling by the Servicing Motor Carrier. Customer acknowledge
and agrees that MTS’s sole obligation with respect to food handling and food
safety is to pass through to the Servicing Motor Carrier instructions contained
in a Food Handling Notice.
4.
Customer will pay the rates and charges set forth in a load confirmation or as
otherwise agreed for services provided by MTS without offset or deduction. Customer agrees that payment receiving terms are
NET 30 days from invoice date, and a finance charge of 1.5% per month is added
to accounts 30 days or more past due. Customer will pay all collection costs,
including but not limited to, attorney fees, court costs, and any other
collection costs associated with collecting amounts due. Customer shall also be responsible for any
additional accessorial charges imposed by the Servicing Motor Carrier which
were not anticipated by MTS at the time MTS arranged for services with
Servicing Motor Carrier or which were not otherwise included in the rate set
forth in the load confirmation.
5.
Customer affirms that it is solvent, is not currently a party to any bankruptcy
proceeding, is not being dissolved or otherwise liquidating its assets, can
satisfy all financial obligations to Company, and has authority to tender all
freight for which it requests Company to arrange transport. Customer affirms
that there are no open judgments, suits, or liens against Customer.
6.
Customer will promptly notify Company of any material change in ownership.
7. Shipments
tendered hereunder may be evidenced by a bill of lading or similar
transportation document. In no event
will MTS being shown as the “carrier” on any such document change MTS’s status
as a property broker. If MTS is listed on bills of lading, it is for
convenience only and does not change MTS’s status as a broker only. Customer waives access to MTS’s records
pursuant to 49 C.F.R. Part 371.
8. Customer
acknowledges that the Servicing Motor Carriers may limit their liability for
cargo loss, damage or delay. It will be Customer’s
responsibility to insure product in-transit and
Customer acknowledges that if Customer wishes to declare excess value higher than
the Servicing Motor Carrier’s limitation, MTS will have no responsibility to do
so and it will be Customer’s responsibility to do so directly with the
Servicing Motor Carrier. MTS may
facilitate claims filing and processing with the Servicing Motor Carrier if (a)
in the case of full-truckload service, Customer files a claim for the loss with
Company within 6 (6) months, and (b) in the case of less-than-truckload,
Customer files such a claim within fourteen (14) days, both as calculated from
the delivery date or, in the event of non-delivery, the scheduled delivery
date. Customer may assist MTS in the pursuit of such a claim, including
confirming the validity of the claim and claim amount provided Customer
provides all relevant documentation, including but not limited to the signed
delivery receipt, listing the nature and cause of the claim for cargo damage.
If MTS pays a claim, Customer automatically assigns any and
all of its rights and interest in the claim to Company. MTS may, in its sole discretion and without
liability to Customer, discontinue pursuit of claims with the Servicing Motor
Carrier if such claim is not resolved within sixty (60) days of MTS tendering
the claim to the Servicing Motor Carrier.
Customer acknowledges and agrees that failure or alleged failure by the
Servicing Motor Carrier to comply with shipment handling instructions, or a
broken trailer seal, shall not result in any presumption that the cargo has
been damaged, 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. MTS shall have no liability for
cargo loss, damage, or shortage except to the extent such claims are caused by MTS’s
negligent acts or omissions, in which case, MTS’s liability shall be limited to
the charges assessed by MTS and paid by Customer with respect to the goods at
issue. Customer acknowledges and agrees
that the sole liability of MTS 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 General Terms.
9. MTS’s
sole responsibility with respect to selection and retention of Servicing Motor Carriers
is to make reasonable efforts to place Customer’s loads with responsible
Servicing Motor Carriers: (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. BROKER makes no express
or implied warranties or guarantees concerning delivery time or the locating of
a Servicing Motor Carrier to provide the transportation services requested by
Customer. MTS will request the Servicing
Motor Carriers maintain cargo insurance in the amount of $100,000 per container
or conveyance. Customer agrees it will not tender loads valued in excess of $100,000 without first giving MTS sufficient
written notice of the same.
10. WHEN CARGO IS IN TRANSIT
IN MEXICO, unless otherwise purchased prior to the movement of the shipment,
neither Company nor the Servicing Motor Carrier(s) retained by it shall be
liable for loss, damage, destruction, or delay to or of any shipment moving to,
from, or within Mexico. The Customer
understands and agrees that the rates do not include insurance in Mexico or
other compensation for loss, other than as expressly provided herein and
limited hereby. Accordingly, the
Customer agrees that in the event it desires coverage for loss, it will obtain
insurance, and that said insurance will contain a waiver of subrogation clause
waiving any subrogation rights of such insurance carrier. In
the event that the Customer fails to obtain a waiver of subrogation, the
Customer will defend, indemnify and hold harmless Company and any Servicing
Motor Carrier(s) retained by it with respect to claims made by the Customer or any
third parties acting as subrogees of the Customer.
11. These General Terms will
be governed by the laws of the State of TX, except to the extent that federal
transportation
laws and regulations preempt those laws. The state courts located in Collin
County, TX will have exclusive and irrevocable jurisdiction over and will be
the exclusive and mandatory venue for any claim, counterclaim, dispute, or
lawsuit arising in connection with any transactions, loads, or other business
between Company and Customer, and Customer consents to and waives any objection
to such jurisdiction.
12.
Customer agrees to indemnify, defend, reimburse, and hold Company harmless for
Customer’s negligence, willful misconduct, and/or breach of these General Terms
to the fullest extent of the law. IN NO
EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL OR CONSEQUENTIAL
DAMAGES REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES. THE TOTAL
LIABILITY OF MTS WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED
TO SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE FOR THE
AMOUNT CHARGED BY MTS WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO
SUCH CLAIMS OR DAMAGES. MTS MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING ANY
SERVICES. MTS IS NOT LIABLE FOR THE
CONSEQUENCES OF IDENTIFY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING
UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING
MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
4868-6026-1677,
v. 9