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.
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