Transportation Terms of Service
1. DEFINITIONS.
“Cargo” means the Customer’s merchandise, goods, cargo, property, and/or freight to be transported by Company between points either on Company’s equipment or Equipment provided by the Customer.
“Company” means XLR8 Truck Lines, providing Services to Customer hereunder, including its officers, directors, employees, agents, and assigns while acting within the scope and course of their engagement.
“Contract” means a written agreement entered into by and between Company and Customer for the provision of and/or the Rate Schedule relating to the Services, only when such written agreement has been signed by the Company’s authorized signatories
“Customer” means the shipper, consignee, broker, freight forwarder, owner of the Cargo or Equipment, or its agents, including, without limitation any entity that tenders to or places with Company Cargo or Equipment for Services.
“Equipment” means Customer’s containers, chassis, trailers, tractors, or other motor vehicle equipment stored, parked, or dropped at a Facility.
“Rate Schedule” means the Company’s then current rates and charges applicable to the Services. Such Rate Schedule may be provided to Customer via email, written notice, or as contained in a Contract.
“Services” means those certain transportation, logistics, and related services (other than warehousing, parking, cross-docking, and/or distribution services at a Facility [as defined in the SWTOS] governed under Company’s Storage and Warehousing Terms of Service [“SWTOS”] as found here: https://railcart.activetrac.net/Storage-Warehousing-TOS) directly performed or caused to be performed by Company on behalf of the Customer relating to the transportation of the Cargo and/or Equipment.
“Transportation Terms of Service” or “TOS” means the terms and conditions published by Company as contained herein and which are electronically published on the Website.
“Website” means https://railcart.activetrac.net/.
2. CUSTOMER ACCEPTANCE AND AGREEMENT TO TERMS OF SERVICE.
It is agreed that Company’s TOS shall govern the dealings between Company and Customer for all Services, and such TOS may be amended by Company from time to time, without notice to Customer. Customer acknowledges and agrees that by tendering Cargo and/or Equipment to Company for the provision of Services hereunder, Customer hereby accepts and agrees abide and be bound by the TOS, together with any applicable Rate Schedule. In the event of any conflict between the TOS as printed herein and those electronically published on the Website, the Website version shall govern. Unless a Contract specifically waives or identifies the Contract as superseding these TOS, in the event of any conflict between these TOS as published on the Website and the terms and conditions set forth in a Contract, the terms and conditions of these TOS as published on the Website shall govern. It is expressly understood that these TOS do not cover or apply to any rights, obligations, terms or conditions of the storage and warehousing, chassis management, or other services that Company has provided or may provide to the Customer; and that those separate services shall be governed by their respective terms and conditions which are provided separately and are posted on the above referenced Website. Neither party has any volume commitment obligations pursuant to these TOS. Further, nothing in these TOS prohibits Company from entering into similar contracts or performing Services for any other person or entity.
3. RATE SCHEDULE.
Upon tender of Cargo and/or Equipment to Company for Services hereunder and acceptance by Company of such Cargo and/or Equipment, Company agrees to the provide Services at the rates and charges set forth in the applicable Rate Schedule, which is incorporated herein by reference and made a part hereof. Any objection to the pricing or other terms presented within any Rate Schedule shall thereby be waived by Customer upon tender of the shipment to Company. Following completion of Services for each shipment of Cargo and/or Equipment tendered to Company hereunder, Company will invoice Customer for all fees and charges due for Services relating to such shipment (“Shipment Invoice”). The Shipment Invoice may include an itemization of all accessorial charges incurred in connection with the shipment and all pertinent documentation, including receipts and prior approvals by Customer for such charges. Notwithstanding the foregoing, any and all (i) customary accessorial fees, including but not limited to, unloading fees, detention, layover, stop off charges, and pallet costs, (ii) less-than-truckload and intermodal charges for re-weighs, re-classifications, and other re-bills, and (iii) taxes, charges, and fees relating to or arising out of the import or export of shipments including customs duties, demurrage, detention, tariffs, and taxes, are the responsibility of the customer regardless of whether such costs detailed in (i) – (iii) of this Section are included in or detailed within any Rate Schedule provided by Company prior to transport of the shipment. Further, Customer acknowledges and agrees that in the event any such quoted rates or pricing includes such items, such amounts are provided as estimates only, and the actual charges due by Customer may vary. Customer shall pay Company the amount of all rates and charges for the Services contained within each Shipment Invoice within thirty (30) days of Customer’s receipt of such Shipment Invoice without offset, deduction, or withholding. Any such Rate Schedule, and the applicable rates for Services detailed therein, may be revised by Company, in its sole and absolute discretion upon ten (10) days’ written notice. Notwithstanding the foregoing, rates may be adjusted by Company automatically without written notice to follow any monthly percentage increase of TEUs at Long Beach as reported by the Port of Long Beach at https://polb.com/business/port-statistics. Any rate changes based on TEUs will take effect, at the earliest, by the first day of the month following the reported percentage change (for example, March 1 for a percentage increase reported on the last day of February).
In addition to Company’s lien rights contained in Section 6, Customer recognizes that failure to pay Shipment Invoices may result in an imposition of a lien on Cargo and/or Equipment, by third parties and/or by Company, for which Company will not be responsible. Shipment Invoices not timely paid are subject to monthly interest of 1.5% of the balance each month until paid in full, and that Customer will pay any and all collection and attorneys’ fees incurred by Company for the collection by Company, if necessary, of amounts due under late or unpaid invoices.
The time limit for filing overcharge or undercharge claims on any shipment shall be one hundred and eighty (180) days after the date of the original Shipment Invoice, except that clerical errors, mathematical errors, extension errors and duplicate payments may be corrected at any time. Expect as otherwise set forth in these TOS, all overcharge and duplicate claims shall be processed by Company in accordance with 49 C.F.R. §378. Any action at law by Company to recover undercharges alleged to be due by Customer, and any action at law by Customer to recover overcharges alleged to be due from Company, shall be commenced no more than one (1) year after the receipt by Company of the relevant shipment; provided, however, that if within such one (1) year period a party presents a written claim to the other party, such one (1) year period for commencement of an action shall be extended for six (6) months from the time written notice is given of disallowance of such claim or portion thereof. To the extent permitted by applicable law, the expiration of such one (1) year period shall be a complete and absolute defense to any such action, without regard to any mitigating or extenuating circumstances or excuse whatsoever, unless the party named as defendant is any such action has expressly waived in writing such defense in whole or in part. Shipment Invoices must be paid in full before any claims for cargo loss or damage are presented to and/or paid by Company under Section 5, and any such claims filed prior to payment in full of all rates and charges may be subject to automatic declination by Company.
4. CARGO & SHIPMENT DISCLOSURES.
Customer represents and warrants that all Cargo and Equipment tendered for Services hereunder is properly marked, packaged, labeled and classified for transport and are fit for transportation as may be required. If Customer tenders Cargo and/or Equipment to be transported by Company, Customer shall not tender Cargo or Equipment if such Cargo and/or Equipment is not properly packaged or which, in the reasonable opinion of Company, is not suitable for movement. Further, for any such Property not contained within or on Customer’s Equipment, Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes of the Property to be accounted for separately and the class of transport desired, if applicable.
Unless otherwise agreed by and between Company and Customer in writing, and subject to the applicable Rate Schedule, Company shall not be required to sort, restack, rework, repackage, or perform any other Services with respect to presentation or condition of the Cargo.
In the event Company is engaged by Customer for purposes of transporting a shipment containing hazardous materials, Customer must provide written notice to Company at least forty-eight (48) hours prior to the shipment’s scheduled pickup appointment that such a shipment contains hazardous materials. Customer shall indemnify and hold Company harmless for any and all costs, expenses, liabilities, or damages arising out of or related to Customer’s failure to provide such written notice. To the extent that any shipments subject to these TOS are transported within the State of California, Customer shall ensure all Equipment tendered to Company and Company shall ensure that all other equipment, including but not limited to: semi-trailers, containers, truck vans, shipping containers, and railcars, and semi-tractors used in connection with the performance of the Services pursuant to these TOS are in compliance with (i) the California Air Resources Board (“ARB”) Heavy-Duty Vehicle Greenhouse Gas (Tractor-Trailer GHG) Emission Reduction Regulations, and (ii) all refrigerated equipment utilized within the State of California are in full compliance with the ARB Transport Refrigerated Unit (“TRU”) Airborne Toxic Control Measure (ATCM), and in-use regulations, and (iii) the ARB Truck and Bus Regulation or On-Road Heavy-Duty Diesel Vehicles (In-Use) Regulation. Each party shall defend, indemnify, hold harmless, and be liable to the other and any and all shippers, consignors, consignees, receivers, and any other parties with any interest to the transportation of the property for any penalties, or any other liability, imposed on the same, or assumed by the parties due to penalties imposed because of Company’s use of non-compliant Equipment or other equipment, as applicable.
5. LIABILITY FOR CARGO AND EQUIPMENT LOSS OR DAMAGE CLAIMS.
Company shall be responsible for the care, custody and control of the Cargo tendered by Customer from the time the applicable shipment is picked up from the consignor until delivery is made to the consignee. Company shall notify Customer, as soon as reasonably practicable, by telephone or electronic communication of any accidents, spills, theft, hijacking, delays, or shortage which impair the safe and prompt delivery of the Cargo.
For full truckload shipments, Company acknowledges and agrees that Company shall be liable to Customer for cargo loss or damage, in accordance with liability under the Carmack Amendment (49 U.S.C. § 14706), subject to a maximum liability of $100,000 per shipment for which Company transports. Customer further acknowledges and agrees that Company shall have no liability for cargo loss or damage claims resulting from or arising out of less-than-truckload (“LTL”) shipments, unless the parties otherwise agree writing signed by both parties no less than forty-eight (48) hours prior to the shipment’s scheduled pickup appointment, but in no event shall Company’s liability exceed $2.50 per lb. All claims for cargo loss or damage against Company shall be filed and processed in accordance with 49 C.F.R. Part 370. Customer is required to file any claim arising from such cargo loss or damage within nine (9) months of delivery or loss of the shipment and bring suit within two (2) years from the date of any claim’s declination. In the event Customer fails to comply with these time limits, Customer’s claim shall be barred, and Company shall have no liability for the alleged loss. In no event shall Company be liable or responsible for delay, loss or use, loss of market value, loss of income, or any other consequential, indirect, incidental, statutory, or punitive damages even if it has been put on notice of the possibility of such damages. Customer acknowledges the applicability of the foregoing terms and hereby waives any rights to recovery against Company, its affiliates or agents, in excess of the above limitations, and, in the event Customer procures excess insurance coverage, such policies shall include a waiver of subrogation against Company. Customer has a duty to seek any and all reasonable salvage opportunities for any damaged Cargo. In the event Customer fails to seek or allow reasonably salvage of the damaged Cargo, Company shall be entitled to offset any applicable claim by a reasonable salvage value of such Cargo.
If at any point a trailer containing food Cargo in the custody or control of Company is missing a trailer seal, or the integrity of the trailer seal is breached (other than by applicable government entities, and with appropriate re-sealing), the food products may only be deemed to be damaged, worthless, and/or unsuitable for its intended use when such missing trailer seal is combined with proof of loss, damage, or contamination following an inspection by a qualified individual. In such cases, Company shall be liable to the extent set forth in this Section.
Except as stated herein, no release value rates or other limitation of cargo liability shall be valid or enforceable against either party, unless otherwise agreed in writing by the parties in a Contract separate from the bill of lading related to the relevant shipment. The limitations of liability for Cargo loss and damage as well as other liabilities, arising out of the Services for shipments which originate from or are destined to locations outside the United States of America shall be equal to the lesser of the liability limitations contained in these TOS or the liability limitations the laws of such foreign country, even while being transported within the United States of America.
Customer represents and warrants that it maintains full financial responsibility for the Equipment and for its use by Company, and it will solely bear full cost for the maintenance, service, and repair of damage caused in any way by Customer or any other party, except and to the extent any applicable cost or expense was caused by the gross negligence or intentional misconduct of Company. Company is not and shall not be required to maintain or contract any minimum form of security for the Equipment. Any Equipment used by Company shall be at Customer’s sole risk. In the event of theft, vandalism, fire, or other damage or destruction of the Equipment, in the absence of Company’s gross negligence or intentional misconduct, Company will have no liability to Customer whatsoever. Such liability limitation shall also apply to Company’s operation of any such Equipment for purposes of loading, unloading, moving, stacking, or parking the Equipment. If Customer nevertheless attempts to hold Company liable for loss or damage to the Equipment or Property, and/or the contents thereof, relating to or arising from Company’s performance of Services, Customer acknowledges and agrees that Company’s liability shall be limited to a total amount of $10,000 per occurrence, provided such liability limitation will not apply in the event of Company’s willful misconduct. Further, any such liability for Equipment shall begin as of the time the Equipment is delivered to and accepted by Company for use in the Services, as evidenced by a written receipt signed by the Company, and end at the time the Equipment is made available to Customer for pickup. If Company maintains any security systems, security patrols, access control devices or other security measures, Company will have no liability to Customer whatsoever in the event the operation, use, or conduct or failure of the same resulting in loss or damage to Customer.
6. GENERAL LIEN RIGHTS
Company has a general lien on any and all Cargo and Equipment (and documents relating thereto) transported by Company and now or hereafter in Company’s possession, custody, or control as security for all existing and future indebtedness and obligations of Customer to Company. If Customer is in breach of any indebtedness or obligation to Company, Company shall have the right to do one or more of the following (a) withhold delivery or release of any Cargo and/or Equipment, even if the debt is not related to such Cargo or Equipment, (b) cease performance of Services, and/or (c) require payment of any and all sums due to Company from Customer. If any such indebtedness or obligation is unsatisfied, Company may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition of Cargo and/or Equipment made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from such sale or other disposition, after deduction for all sums owed to Company, shall be transmitted to Customer, and Customer shall be liable for any and all deficiency following sale or other disposition.
7. INDEMNIFICATION.
Subject to the liability limitation set forth in Section 5 above, each party shall indemnify, defend and hold the other party and its respective parent entity, subsidiaries, affiliates, employees, officers directors and agents (together, the “Indemnified Parties”) harmless from and against any losses, harm, injury, claims, actions, costs, expenses, damages and liabilities (including reasonable legal fees), arising out of, or in connection with, the Services provided by Company or obligations of Customer, its employees, agent and contractors pursuant to this Agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death, unless and to the extent arising out of, or in connection with the gross negligence or willful act or omission of an Indemnified Party.IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO CARGO OR EQUIPMENT , LOSS OF USE OF CARGO OR EQUIPMENT, COST OF SUBSTITUTED CARGO OR EQUIPMENT, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR. In the event there is a reasonable dispute as to whether Company is providing storage and warehousing services under the applicable SWTOS or these TOS at a particular point in time, it shall be presumed that Company was providing storage and warehousing services under such SWTOS.
8. INDEPENDENT CONTRACTOR
The relationship of Company and Customer to each other will at all times be that of independent contractors. None of the terms of these TOS, or any act or omission of either party will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the parties. Each party will provide sole supervision and will have exclusive control over the actions and operations of its employees and agents used to perform under these TOS. Neither party has any right to control, discipline or direct the performance of any employees or agents of the other party. Neither party will represent to any third party that it is anything other than an independent contractor in its relationship to the other party.
9. INSURANCE
Unless greater insurance limits are required on a Rate Schedule to these TOS or otherwise required via Contract, Company shall procure and maintain, at its sole cost and expense, and require any contractor hereunder to procure and maintain, at their sole cost and expense, the following insurance coverages: (i) Commercial general liability coverage for bodily injury liability and property damage liability, having a combined single limit of $1,000,000 ($1,000,000 of which may be satisfied by an umbrella policy and may be obtained from a combination of primary and excess insurance coverages); (ii) Automobile liability, having a combined single limit of $1,000,000 ($1,000,000 of which may be satisfied by an umbrella policy); (iii) Cargo liability insurance having a single limit of $100,000 with respect to Cargo on any one vehicle; (iv) Worker’s compensation as required by the laws of the state(s) where the Services provided pursuant to this agreement are performed; and (v) Employer’s liability in the amount of $100,000 per occurrence.
Company may furnish to Customer written certificates showing that such insurance has been procured and is being properly maintained, and specifying the name of the insurance carrier, the policy number or numbers, and the expiration date or dates. It is expressly understood and agreed that Company does not represent that the types of minimum limits of insurance set forth herein are adequate to protect Customer’s interests. Deductible amounts under the foregoing policies shall be paid by Company. Company’s liability for cargo loss or damage described in Section 5 above or its indemnification obligations pursuant to these TOS shall not be increased or expanded by the insurance policy limits that Company chooses to purchase.
10. COMPANY REMEDIES
Upon any breach by Customer of these TOS, Company may, at is option, in addition to any other remedy or right it has hereunder or by law: (a) Declare all invoices, including Shipment Invoices, due hereunder, or under any other agreement with Customer, immediately due and payable without notice or demand to Customer; (b) Place a lien on the Cargo and/or Equipment as detailed herein; (c) Terminate these TOS immediately without period for cure; and/or (d) Pursue any other remedy available at law or equity.
11. CONFIDENTIALITY AND NON-SOLICITATION
Customer hereby agrees that during any period for which Company provides Services under these TOS (the “Service Period”) and for one (1) year after all of Customer Cargo and Equipment delivered to Customer’s designated delivery location, Customer will not either directly or indirectly, solicit or attempt to solicit, entice, or encourage any employee, independent contractor, consultant, or customer of Company with which Customer interacted at any point during the Service Period to terminate his, her, or its relationship with Company in order to become an employee, consultant, independent contractor or customer, to or for Customer. The parties acknowledge and agree that this ancillary restriction is reasonably necessary and collateral to the parties’ legitimate business collaboration and is narrowly tailored to match the scope of such collaboration. The agreement in this Section not to solicit employees is directly connected to the confidentiality covenants under these TOS and such restriction is for the purpose of protecting Company’s reasonable and legitimate business interests.
In the event of violation of this Section 11, the parties agree that the remedy at law, including monetary damages, may be inadequate and that the parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating party from further violation of these TOS in which case the non-prevailing party shall be liable for all costs and expenses incurred, including to reasonable attorneys’ fees.
12. MISCELLANEOUS
Contents of Agreement; Amendments. These TOS and any attachments referenced herein constitute the entire understanding of the parties regarding the transaction contemplated by them and supersedes any prior agreements or understandings between the parties. Except for and subject to the terms and conditions contained within a formal written Contract or as applicable under Company’s SWTOS (https://railcart.activetrac.net/Storage-Warehousing-TOS), these TOS may not be modified, and its terms may not be waived except in writing, agreed by both parties. Company’s failure to insist upon strict compliance with any provision of these TOS shall not constitute a waiver or estoppel to later demand strict compliance thereof and shall not constitute a waiver of or estoppel to insist upon strict compliance with all other provisions of these TOS.
In the event that the terms of the bill of lading, shipment receipt, or other document evidencing Company’s receipt of the Cargo (each a “Receipt”) (including but not limited to payment and credit terms, released rates or released value) are inconsistent with the terms of these TOS, the terms and conditions of these TOS shall control and take precedence. In no event shall any legend, decal or other reference to any outside or internal rule or tariff on a Receipt apply. The failure to issue or sign a Receipt by Company shall not affect the liability of Company or the responsibility of Customer to issue payment hereunder. The parties acknowledge and agree that the parties are subject to these TOS under 49 U.S.C. §14101(b) and expressly waive any and all rights and remedies under Subtitle IV, Part B of 49 U.S.C. (as allowed by § 14101) to the extent such rights and remedies conflict with these TOS.
Assignment and Binding Effect. These TOS may not be assigned by any party without other’s prior written consent. Notwithstanding the foregoing, the following assignments or transfers by Company shall be allowed without the Customer’s consent: assignments or transfers to an entity; (a) that is merged or consolidated with Company, (b) that acquired all or substantially all of the Company’s assets, or (c) that controls, is controlled by, or is under common control with the Company. Subject to the foregoing, all of the terms and provisions of these TOS shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the assigning party.
Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the sender and shall be directed to Company and Customer at the address set forth on the front side of the Rate Schedule, unless otherwise instructed by either party in writing.
Governing Law; Jurisdiction and Venue. These TOS are governed, interpreted, and enforced in accordance with the laws of the State of California without regard to any conflicts of law. Any action brought by either party under or in relation to these TOS will be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the State of California and County of Los Angeles. In any action arising out of or in connection with these TOS, the prevailing party will be entitled to recover from the other party the reasonable fees and expenses, including attorneys’ fees and related costs, incurred by the prevailing party in connection with the action.
Force Majeure. In the event that either party is prevented from performing its obligations under these TOS because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, pandemic, epidemic, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes or unionized refusal to work, such failures to perform (except for any payments due hereunder) will be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, do not constitute force majeure events.
Severability; Survival. In the event any of the terms of these TOS are determined to be invalid or unenforceable, no other terms will be affected, and the unaffected terms shall remain valid and enforceable as written. Provisions of these TOS, which by their terms or nature extend beyond the termination of these TOS, will remain effective after termination in accordance with their terms.
Interpretation. In any dispute or action relating to these TOS, these TOS will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of these TOS will be construed against Company on the basis that Company drafted them. These TOS will be viewed as if prepared jointly by Company and Customer.
Independent Legal Advice. Each party acknowledges that it was solely responsible and had the opportunity to obtain independent legal advice regarding these TOS.
Headings. The paragraph headings of these TOS are for convenience only; they form no part of these TOS and will not affect their interpretation.
1. DEFINITIONS.
“Cargo” means the Customer’s merchandise, goods, cargo, property, and/or freight to be transported by Company between points either on Company’s equipment or Equipment provided by the Customer.
“Company” means XLR8 Truck Lines, providing Services to Customer hereunder, including its officers, directors, employees, agents, and assigns while acting within the scope and course of their engagement.
“Contract” means a written agreement entered into by and between Company and Customer for the provision of and/or the Rate Schedule relating to the Services, only when such written agreement has been signed by the Company’s authorized signatories
“Customer” means the shipper, consignee, broker, freight forwarder, owner of the Cargo or Equipment, or its agents, including, without limitation any entity that tenders to or places with Company Cargo or Equipment for Services.
“Equipment” means Customer’s containers, chassis, trailers, tractors, or other motor vehicle equipment stored, parked, or dropped at a Facility.
“Rate Schedule” means the Company’s then current rates and charges applicable to the Services. Such Rate Schedule may be provided to Customer via email, written notice, or as contained in a Contract.
“Services” means those certain transportation, logistics, and related services (other than warehousing, parking, cross-docking, and/or distribution services at a Facility [as defined in the SWTOS] governed under Company’s Storage and Warehousing Terms of Service [“SWTOS”] as found here: https://railcart.activetrac.net/Storage-Warehousing-TOS) directly performed or caused to be performed by Company on behalf of the Customer relating to the transportation of the Cargo and/or Equipment.
“Transportation Terms of Service” or “TOS” means the terms and conditions published by Company as contained herein and which are electronically published on the Website.
“Website” means https://railcart.activetrac.net/.
2. CUSTOMER ACCEPTANCE AND AGREEMENT TO TERMS OF SERVICE.
It is agreed that Company’s TOS shall govern the dealings between Company and Customer for all Services, and such TOS may be amended by Company from time to time, without notice to Customer. Customer acknowledges and agrees that by tendering Cargo and/or Equipment to Company for the provision of Services hereunder, Customer hereby accepts and agrees abide and be bound by the TOS, together with any applicable Rate Schedule. In the event of any conflict between the TOS as printed herein and those electronically published on the Website, the Website version shall govern. Unless a Contract specifically waives or identifies the Contract as superseding these TOS, in the event of any conflict between these TOS as published on the Website and the terms and conditions set forth in a Contract, the terms and conditions of these TOS as published on the Website shall govern. It is expressly understood that these TOS do not cover or apply to any rights, obligations, terms or conditions of the storage and warehousing, chassis management, or other services that Company has provided or may provide to the Customer; and that those separate services shall be governed by their respective terms and conditions which are provided separately and are posted on the above referenced Website. Neither party has any volume commitment obligations pursuant to these TOS. Further, nothing in these TOS prohibits Company from entering into similar contracts or performing Services for any other person or entity.
3. RATE SCHEDULE.
Upon tender of Cargo and/or Equipment to Company for Services hereunder and acceptance by Company of such Cargo and/or Equipment, Company agrees to the provide Services at the rates and charges set forth in the applicable Rate Schedule, which is incorporated herein by reference and made a part hereof. Any objection to the pricing or other terms presented within any Rate Schedule shall thereby be waived by Customer upon tender of the shipment to Company. Following completion of Services for each shipment of Cargo and/or Equipment tendered to Company hereunder, Company will invoice Customer for all fees and charges due for Services relating to such shipment (“Shipment Invoice”). The Shipment Invoice may include an itemization of all accessorial charges incurred in connection with the shipment and all pertinent documentation, including receipts and prior approvals by Customer for such charges. Notwithstanding the foregoing, any and all (i) customary accessorial fees, including but not limited to, unloading fees, detention, layover, stop off charges, and pallet costs, (ii) less-than-truckload and intermodal charges for re-weighs, re-classifications, and other re-bills, and (iii) taxes, charges, and fees relating to or arising out of the import or export of shipments including customs duties, demurrage, detention, tariffs, and taxes, are the responsibility of the customer regardless of whether such costs detailed in (i) – (iii) of this Section are included in or detailed within any Rate Schedule provided by Company prior to transport of the shipment. Further, Customer acknowledges and agrees that in the event any such quoted rates or pricing includes such items, such amounts are provided as estimates only, and the actual charges due by Customer may vary. Customer shall pay Company the amount of all rates and charges for the Services contained within each Shipment Invoice within thirty (30) days of Customer’s receipt of such Shipment Invoice without offset, deduction, or withholding. Any such Rate Schedule, and the applicable rates for Services detailed therein, may be revised by Company, in its sole and absolute discretion upon ten (10) days’ written notice. Notwithstanding the foregoing, rates may be adjusted by Company automatically without written notice to follow any monthly percentage increase of TEUs at Long Beach as reported by the Port of Long Beach at https://polb.com/business/port-statistics. Any rate changes based on TEUs will take effect, at the earliest, by the first day of the month following the reported percentage change (for example, March 1 for a percentage increase reported on the last day of February).
In addition to Company’s lien rights contained in Section 6, Customer recognizes that failure to pay Shipment Invoices may result in an imposition of a lien on Cargo and/or Equipment, by third parties and/or by Company, for which Company will not be responsible. Shipment Invoices not timely paid are subject to monthly interest of 1.5% of the balance each month until paid in full, and that Customer will pay any and all collection and attorneys’ fees incurred by Company for the collection by Company, if necessary, of amounts due under late or unpaid invoices.
The time limit for filing overcharge or undercharge claims on any shipment shall be one hundred and eighty (180) days after the date of the original Shipment Invoice, except that clerical errors, mathematical errors, extension errors and duplicate payments may be corrected at any time. Expect as otherwise set forth in these TOS, all overcharge and duplicate claims shall be processed by Company in accordance with 49 C.F.R. §378. Any action at law by Company to recover undercharges alleged to be due by Customer, and any action at law by Customer to recover overcharges alleged to be due from Company, shall be commenced no more than one (1) year after the receipt by Company of the relevant shipment; provided, however, that if within such one (1) year period a party presents a written claim to the other party, such one (1) year period for commencement of an action shall be extended for six (6) months from the time written notice is given of disallowance of such claim or portion thereof. To the extent permitted by applicable law, the expiration of such one (1) year period shall be a complete and absolute defense to any such action, without regard to any mitigating or extenuating circumstances or excuse whatsoever, unless the party named as defendant is any such action has expressly waived in writing such defense in whole or in part. Shipment Invoices must be paid in full before any claims for cargo loss or damage are presented to and/or paid by Company under Section 5, and any such claims filed prior to payment in full of all rates and charges may be subject to automatic declination by Company.
4. CARGO & SHIPMENT DISCLOSURES.
Customer represents and warrants that all Cargo and Equipment tendered for Services hereunder is properly marked, packaged, labeled and classified for transport and are fit for transportation as may be required. If Customer tenders Cargo and/or Equipment to be transported by Company, Customer shall not tender Cargo or Equipment if such Cargo and/or Equipment is not properly packaged or which, in the reasonable opinion of Company, is not suitable for movement. Further, for any such Property not contained within or on Customer’s Equipment, Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes of the Property to be accounted for separately and the class of transport desired, if applicable.
Unless otherwise agreed by and between Company and Customer in writing, and subject to the applicable Rate Schedule, Company shall not be required to sort, restack, rework, repackage, or perform any other Services with respect to presentation or condition of the Cargo.
In the event Company is engaged by Customer for purposes of transporting a shipment containing hazardous materials, Customer must provide written notice to Company at least forty-eight (48) hours prior to the shipment’s scheduled pickup appointment that such a shipment contains hazardous materials. Customer shall indemnify and hold Company harmless for any and all costs, expenses, liabilities, or damages arising out of or related to Customer’s failure to provide such written notice. To the extent that any shipments subject to these TOS are transported within the State of California, Customer shall ensure all Equipment tendered to Company and Company shall ensure that all other equipment, including but not limited to: semi-trailers, containers, truck vans, shipping containers, and railcars, and semi-tractors used in connection with the performance of the Services pursuant to these TOS are in compliance with (i) the California Air Resources Board (“ARB”) Heavy-Duty Vehicle Greenhouse Gas (Tractor-Trailer GHG) Emission Reduction Regulations, and (ii) all refrigerated equipment utilized within the State of California are in full compliance with the ARB Transport Refrigerated Unit (“TRU”) Airborne Toxic Control Measure (ATCM), and in-use regulations, and (iii) the ARB Truck and Bus Regulation or On-Road Heavy-Duty Diesel Vehicles (In-Use) Regulation. Each party shall defend, indemnify, hold harmless, and be liable to the other and any and all shippers, consignors, consignees, receivers, and any other parties with any interest to the transportation of the property for any penalties, or any other liability, imposed on the same, or assumed by the parties due to penalties imposed because of Company’s use of non-compliant Equipment or other equipment, as applicable.
5. LIABILITY FOR CARGO AND EQUIPMENT LOSS OR DAMAGE CLAIMS.
Company shall be responsible for the care, custody and control of the Cargo tendered by Customer from the time the applicable shipment is picked up from the consignor until delivery is made to the consignee. Company shall notify Customer, as soon as reasonably practicable, by telephone or electronic communication of any accidents, spills, theft, hijacking, delays, or shortage which impair the safe and prompt delivery of the Cargo.
For full truckload shipments, Company acknowledges and agrees that Company shall be liable to Customer for cargo loss or damage, in accordance with liability under the Carmack Amendment (49 U.S.C. § 14706), subject to a maximum liability of $100,000 per shipment for which Company transports. Customer further acknowledges and agrees that Company shall have no liability for cargo loss or damage claims resulting from or arising out of less-than-truckload (“LTL”) shipments, unless the parties otherwise agree writing signed by both parties no less than forty-eight (48) hours prior to the shipment’s scheduled pickup appointment, but in no event shall Company’s liability exceed $2.50 per lb. All claims for cargo loss or damage against Company shall be filed and processed in accordance with 49 C.F.R. Part 370. Customer is required to file any claim arising from such cargo loss or damage within nine (9) months of delivery or loss of the shipment and bring suit within two (2) years from the date of any claim’s declination. In the event Customer fails to comply with these time limits, Customer’s claim shall be barred, and Company shall have no liability for the alleged loss. In no event shall Company be liable or responsible for delay, loss or use, loss of market value, loss of income, or any other consequential, indirect, incidental, statutory, or punitive damages even if it has been put on notice of the possibility of such damages. Customer acknowledges the applicability of the foregoing terms and hereby waives any rights to recovery against Company, its affiliates or agents, in excess of the above limitations, and, in the event Customer procures excess insurance coverage, such policies shall include a waiver of subrogation against Company. Customer has a duty to seek any and all reasonable salvage opportunities for any damaged Cargo. In the event Customer fails to seek or allow reasonably salvage of the damaged Cargo, Company shall be entitled to offset any applicable claim by a reasonable salvage value of such Cargo.
If at any point a trailer containing food Cargo in the custody or control of Company is missing a trailer seal, or the integrity of the trailer seal is breached (other than by applicable government entities, and with appropriate re-sealing), the food products may only be deemed to be damaged, worthless, and/or unsuitable for its intended use when such missing trailer seal is combined with proof of loss, damage, or contamination following an inspection by a qualified individual. In such cases, Company shall be liable to the extent set forth in this Section.
Except as stated herein, no release value rates or other limitation of cargo liability shall be valid or enforceable against either party, unless otherwise agreed in writing by the parties in a Contract separate from the bill of lading related to the relevant shipment. The limitations of liability for Cargo loss and damage as well as other liabilities, arising out of the Services for shipments which originate from or are destined to locations outside the United States of America shall be equal to the lesser of the liability limitations contained in these TOS or the liability limitations the laws of such foreign country, even while being transported within the United States of America.
Customer represents and warrants that it maintains full financial responsibility for the Equipment and for its use by Company, and it will solely bear full cost for the maintenance, service, and repair of damage caused in any way by Customer or any other party, except and to the extent any applicable cost or expense was caused by the gross negligence or intentional misconduct of Company. Company is not and shall not be required to maintain or contract any minimum form of security for the Equipment. Any Equipment used by Company shall be at Customer’s sole risk. In the event of theft, vandalism, fire, or other damage or destruction of the Equipment, in the absence of Company’s gross negligence or intentional misconduct, Company will have no liability to Customer whatsoever. Such liability limitation shall also apply to Company’s operation of any such Equipment for purposes of loading, unloading, moving, stacking, or parking the Equipment. If Customer nevertheless attempts to hold Company liable for loss or damage to the Equipment or Property, and/or the contents thereof, relating to or arising from Company’s performance of Services, Customer acknowledges and agrees that Company’s liability shall be limited to a total amount of $10,000 per occurrence, provided such liability limitation will not apply in the event of Company’s willful misconduct. Further, any such liability for Equipment shall begin as of the time the Equipment is delivered to and accepted by Company for use in the Services, as evidenced by a written receipt signed by the Company, and end at the time the Equipment is made available to Customer for pickup. If Company maintains any security systems, security patrols, access control devices or other security measures, Company will have no liability to Customer whatsoever in the event the operation, use, or conduct or failure of the same resulting in loss or damage to Customer.
6. GENERAL LIEN RIGHTS
Company has a general lien on any and all Cargo and Equipment (and documents relating thereto) transported by Company and now or hereafter in Company’s possession, custody, or control as security for all existing and future indebtedness and obligations of Customer to Company. If Customer is in breach of any indebtedness or obligation to Company, Company shall have the right to do one or more of the following (a) withhold delivery or release of any Cargo and/or Equipment, even if the debt is not related to such Cargo or Equipment, (b) cease performance of Services, and/or (c) require payment of any and all sums due to Company from Customer. If any such indebtedness or obligation is unsatisfied, Company may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition of Cargo and/or Equipment made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from such sale or other disposition, after deduction for all sums owed to Company, shall be transmitted to Customer, and Customer shall be liable for any and all deficiency following sale or other disposition.
7. INDEMNIFICATION.
Subject to the liability limitation set forth in Section 5 above, each party shall indemnify, defend and hold the other party and its respective parent entity, subsidiaries, affiliates, employees, officers directors and agents (together, the “Indemnified Parties”) harmless from and against any losses, harm, injury, claims, actions, costs, expenses, damages and liabilities (including reasonable legal fees), arising out of, or in connection with, the Services provided by Company or obligations of Customer, its employees, agent and contractors pursuant to this Agreement, including cargo loss and damage, theft, delay, damage to property, and personal injury or death, unless and to the extent arising out of, or in connection with the gross negligence or willful act or omission of an Indemnified Party.IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO CARGO OR EQUIPMENT , LOSS OF USE OF CARGO OR EQUIPMENT, COST OF SUBSTITUTED CARGO OR EQUIPMENT, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR. In the event there is a reasonable dispute as to whether Company is providing storage and warehousing services under the applicable SWTOS or these TOS at a particular point in time, it shall be presumed that Company was providing storage and warehousing services under such SWTOS.
8. INDEPENDENT CONTRACTOR
The relationship of Company and Customer to each other will at all times be that of independent contractors. None of the terms of these TOS, or any act or omission of either party will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the parties. Each party will provide sole supervision and will have exclusive control over the actions and operations of its employees and agents used to perform under these TOS. Neither party has any right to control, discipline or direct the performance of any employees or agents of the other party. Neither party will represent to any third party that it is anything other than an independent contractor in its relationship to the other party.
9. INSURANCE
Unless greater insurance limits are required on a Rate Schedule to these TOS or otherwise required via Contract, Company shall procure and maintain, at its sole cost and expense, and require any contractor hereunder to procure and maintain, at their sole cost and expense, the following insurance coverages: (i) Commercial general liability coverage for bodily injury liability and property damage liability, having a combined single limit of $1,000,000 ($1,000,000 of which may be satisfied by an umbrella policy and may be obtained from a combination of primary and excess insurance coverages); (ii) Automobile liability, having a combined single limit of $1,000,000 ($1,000,000 of which may be satisfied by an umbrella policy); (iii) Cargo liability insurance having a single limit of $100,000 with respect to Cargo on any one vehicle; (iv) Worker’s compensation as required by the laws of the state(s) where the Services provided pursuant to this agreement are performed; and (v) Employer’s liability in the amount of $100,000 per occurrence.
Company may furnish to Customer written certificates showing that such insurance has been procured and is being properly maintained, and specifying the name of the insurance carrier, the policy number or numbers, and the expiration date or dates. It is expressly understood and agreed that Company does not represent that the types of minimum limits of insurance set forth herein are adequate to protect Customer’s interests. Deductible amounts under the foregoing policies shall be paid by Company. Company’s liability for cargo loss or damage described in Section 5 above or its indemnification obligations pursuant to these TOS shall not be increased or expanded by the insurance policy limits that Company chooses to purchase.
10. COMPANY REMEDIES
Upon any breach by Customer of these TOS, Company may, at is option, in addition to any other remedy or right it has hereunder or by law: (a) Declare all invoices, including Shipment Invoices, due hereunder, or under any other agreement with Customer, immediately due and payable without notice or demand to Customer; (b) Place a lien on the Cargo and/or Equipment as detailed herein; (c) Terminate these TOS immediately without period for cure; and/or (d) Pursue any other remedy available at law or equity.
11. CONFIDENTIALITY AND NON-SOLICITATION
Customer hereby agrees that during any period for which Company provides Services under these TOS (the “Service Period”) and for one (1) year after all of Customer Cargo and Equipment delivered to Customer’s designated delivery location, Customer will not either directly or indirectly, solicit or attempt to solicit, entice, or encourage any employee, independent contractor, consultant, or customer of Company with which Customer interacted at any point during the Service Period to terminate his, her, or its relationship with Company in order to become an employee, consultant, independent contractor or customer, to or for Customer. The parties acknowledge and agree that this ancillary restriction is reasonably necessary and collateral to the parties’ legitimate business collaboration and is narrowly tailored to match the scope of such collaboration. The agreement in this Section not to solicit employees is directly connected to the confidentiality covenants under these TOS and such restriction is for the purpose of protecting Company’s reasonable and legitimate business interests.
In the event of violation of this Section 11, the parties agree that the remedy at law, including monetary damages, may be inadequate and that the parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating party from further violation of these TOS in which case the non-prevailing party shall be liable for all costs and expenses incurred, including to reasonable attorneys’ fees.
12. MISCELLANEOUS
Contents of Agreement; Amendments. These TOS and any attachments referenced herein constitute the entire understanding of the parties regarding the transaction contemplated by them and supersedes any prior agreements or understandings between the parties. Except for and subject to the terms and conditions contained within a formal written Contract or as applicable under Company’s SWTOS (https://railcart.activetrac.net/Storage-Warehousing-TOS), these TOS may not be modified, and its terms may not be waived except in writing, agreed by both parties. Company’s failure to insist upon strict compliance with any provision of these TOS shall not constitute a waiver or estoppel to later demand strict compliance thereof and shall not constitute a waiver of or estoppel to insist upon strict compliance with all other provisions of these TOS.
In the event that the terms of the bill of lading, shipment receipt, or other document evidencing Company’s receipt of the Cargo (each a “Receipt”) (including but not limited to payment and credit terms, released rates or released value) are inconsistent with the terms of these TOS, the terms and conditions of these TOS shall control and take precedence. In no event shall any legend, decal or other reference to any outside or internal rule or tariff on a Receipt apply. The failure to issue or sign a Receipt by Company shall not affect the liability of Company or the responsibility of Customer to issue payment hereunder. The parties acknowledge and agree that the parties are subject to these TOS under 49 U.S.C. §14101(b) and expressly waive any and all rights and remedies under Subtitle IV, Part B of 49 U.S.C. (as allowed by § 14101) to the extent such rights and remedies conflict with these TOS.
Assignment and Binding Effect. These TOS may not be assigned by any party without other’s prior written consent. Notwithstanding the foregoing, the following assignments or transfers by Company shall be allowed without the Customer’s consent: assignments or transfers to an entity; (a) that is merged or consolidated with Company, (b) that acquired all or substantially all of the Company’s assets, or (c) that controls, is controlled by, or is under common control with the Company. Subject to the foregoing, all of the terms and provisions of these TOS shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the assigning party.
Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the sender and shall be directed to Company and Customer at the address set forth on the front side of the Rate Schedule, unless otherwise instructed by either party in writing.
Governing Law; Jurisdiction and Venue. These TOS are governed, interpreted, and enforced in accordance with the laws of the State of California without regard to any conflicts of law. Any action brought by either party under or in relation to these TOS will be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the State of California and County of Los Angeles. In any action arising out of or in connection with these TOS, the prevailing party will be entitled to recover from the other party the reasonable fees and expenses, including attorneys’ fees and related costs, incurred by the prevailing party in connection with the action.
Force Majeure. In the event that either party is prevented from performing its obligations under these TOS because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, pandemic, epidemic, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes or unionized refusal to work, such failures to perform (except for any payments due hereunder) will be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, do not constitute force majeure events.
Severability; Survival. In the event any of the terms of these TOS are determined to be invalid or unenforceable, no other terms will be affected, and the unaffected terms shall remain valid and enforceable as written. Provisions of these TOS, which by their terms or nature extend beyond the termination of these TOS, will remain effective after termination in accordance with their terms.
Interpretation. In any dispute or action relating to these TOS, these TOS will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of these TOS will be construed against Company on the basis that Company drafted them. These TOS will be viewed as if prepared jointly by Company and Customer.
Independent Legal Advice. Each party acknowledges that it was solely responsible and had the opportunity to obtain independent legal advice regarding these TOS.
Headings. The paragraph headings of these TOS are for convenience only; they form no part of these TOS and will not affect their interpretation.
