These Terms & Conditions of Service (USA) constitute a legally binding contract between Company and Customer for provision and receipt of the Services. Company and Customer enter into this contract in accordance with 49 USC § 14101(b)(1) and expressly waive any and all rights and remedies that either may have under 49 U.S.C. § 13101 through § 14914 that are contrary to the specific provisions of these Terms.
(a) “Company” shall mean Evolution Time Critical Logistics, LLC, its subsidiaries, related companies, agents, and representatives;
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its principals, agents, and representatives, including, but not limited to, its consignors, consignees, shippers, importers, exporters, secured parties, warehousemen, buyers, sellers, agents, subcontractors, insurers, and underwriters, etc. It is the responsibility of the Customer to provide notice and copy(ies) of these terms and conditions of service to all such agents or representatives;
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) “Terms” shall mean these Terms & Conditions of Service (USA), which shall govern for all shipments tendered on Customer’s account;
(e) “Third Parties” shall include, but not be limited to, the following: motor carriers, air carriers, lightermen, forwarders, customs brokers, agents, warehousemen, and others to which the goods are entrusted for transportation, cartage, handling, delivery, storage, or otherwise; and
(f) “Services” shall mean those domestic and international transportation broker, indirect air carrier, import/export agent (excluding customs brokerage), or related services provided by Company to Customer
2. COMPANY AS LIMITED AGENT
Customer hereby makes, constitutes, and appoints Company as its lawful agent and attorney in fact for the limited purpose of assisting Company in connection with its import and export of goods to and from the United States. Customer further ratifies all actions that Company performs in furtherance of such limited purpose as if those actions were performed by Company itself. Except as provided in this Paragraph, Company shall in all other regards perform the Services solely as Customer’s independent contractor.
3. COMPANY’S OPERATING AUTHORITIES
Company’s transportation broker service is provided pursuant to Federal Motor Carrier Safety Administration permit number MC 999425 and U.S. DOT No. 2951493. Company’s indirect air carrier Service is provided pursuant to an Indirect Air Carrier Standard Security Program approved by the Transportation Security Administration. Customer acknowledges that Company is not a motor carrier and in no event will bear carrier liability for cargo loss or damage pursuant to 49 USC § 14706. Customer further acknowledges that Company is not a customs broker and in no event will offer or perform “Customs Business” as that term is used in 19 CFR § 111.11.
4. LIMITATION OF ACTIONS
(a) Unless subject to a specific statute or international convention, all claims against the Company must be made in writing and received by the Company:
(i) Where the claim arises from activities relating to transportation brokerage by motor carrier, within nine (9) months after delivery, or in the case of non-delivery, after a reasonable time for delivery;
(ii) Where the claim arises from activities relating to domestic or international indirect air carrier service, within fourteen (14) days after delivery, or in the case of non-delivery or delay, within twenty-one (21) days after delivery or a reasonable time for delivery; or
(iii) For any and all other claims of any other type including claims arises from activities relating to import/export agent services, within ninety (90) days after discovery of the event giving rise to the claim.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) Where the claim arises from activities relating to transportation brokerage by motor carrier, within two (2) years following denial of Customer’s claim;
(ii) Where the claim arises from activities relating to domestic or international indirect air carrier service, within two (2) years following the date of arrival at destination, the date the aircraft was scheduled to arrive, or the date carriage terminated; or
(iii) For any and all other claims of any other type including claims arising from activities relating to import/export agent services, within one hundred eighty (180) days from the date of discovery of the event giving rise to the claim.
5. NO LIABILITY FOR THE SELECTION OR SERVICES OF THIRD PARTIES
Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of Third Parties to perform the handling, transportation, clearance, and delivery of Customer’s shipments. Company’s advice that a particular person or firm has been selected to render services with respect to the goods shall not be construed to mean that the Company warrants or represents that such person or firm will render such services. Company does not assume responsibility or liability for any actions(s) or inaction(s) of such Third Parties or their agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a Third Party or the agent of a Third Party. Customer acknowledges and agrees that all claims in connection with the performance, act, or omission of a Third Party shall be brought solely against such Third Party or its agents. Company shall reasonably cooperate with the Customer in connection with any such claim, provided that Customer shall be liable for any charges or costs incurred by Company.
6. QUOTATIONS NOT BINDING
Quotations as to fees, freight charges, insurance premiums, or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice. No quotation shall be binding upon the Company. Customer shall be responsible to Company and any Third Party for all rates, charges, fees, costs, or expenses incurred to complete Customer’s transportation or ancillary services.
7. RELIANCE ON INFORMATION FURNISHED
(a) Customer acknowledges that it is required to review all Documentation, shipping documents, forms, declarations, or other information prepared or filed with any government agency or Third Party. Customer will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on Customer’s behalf.
(b) In preparing and submitting requested or required information to any government agency or Third Party, Company relies on the correctness of all Documentation, whether in written or electronic format, and all information furnished by Customer. Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect, incomplete, or false statement by the Customer or its agent, representative, or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export, or enter the goods.
8. DECLARING HIGHER VALUE TO THIRD PARTIES
Customer acknowledges that Third Parties to whom the goods are entrusted may limit liability for loss or damage. Company will request excess valuation coverage only upon specific written instructions from the Customer, and Customer must agree to pay any charges required by such Third Parties therefore. In the absence of written instructions or upon the refusal of the Third Party to agree to a higher declared value, at Company’s discretion, the goods may nonetheless be tendered to the Third Party, subject to the terms of the Third Party’s limitations of liability and terms and conditions of service.
9. NO INSURANCE
Customer acknowledges that Company is not an insurance carrier or broker and is not in the business of selling insurance. Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf. In all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
10. DISCLAIMERS; LIMITATION OF LIABILITY
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with the Services or those services performed by Third Parties;
(b) Customer may obtain additional liability protection from Third Parties, up to the actual or declared value of the shipment or transaction, by requesting such protection and agreeing to make payment therefor, which request must be confirmed in writing by the Company prior to rendering Services for the covered transaction(s).
(c) Customer agrees that Company’s liability shall be limited to the following:
(i) Where the claim arises from activities relating to transportation brokerage by motor carrier, Company’s liability shall be limited to fifty cents ($0.50) per pound per article lost or damaged;
(ii) Where the claim arises from activities relating to domestic indirect air carrier service, Company’s liability shall be limited to fifty cents ($0.50) per pound per article lost or damaged;
(iii) Where the claim arises from activities relating to international indirect air carrier service, Company’s liability shall be subject to the provisions of the Montreal Convention and limited to 19 Special Drawing Rights per kilogram;
(iv) Where the claim arises from activities relating to import/export agent services, Company’s liability shall be limited to fifty dollars ($50) per transaction; or
(v) In all other instances, Company’s aggregate liability to Customer shall be limited to the amounts received by Company from Customer in consideration for Company’s performance of the Services (excluding charges paid to Third Parties) during the three (3) months prior to the date on which the claim arose.
(d) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory, or punitive damages, including delivery delay, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
11. ADVANCING MONEY
All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to Customer. The granting of credit to Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
12. INDEMNIFICATION/HOLD HARMLESS
The Customer agrees to indemnify, defend, and hold the Company harmless from any claims, liabilities, losses, damages, costs, claims, fines, penalties, expenses, and attorneys’ fees arising from or related to Customer’s:
(a) Act, omission, negligence, or misconduct, including but not limited to the inaccuracy of Documentation or other information supplied by Customer or its agent or representative;
(b) Actual or alleged violation of any applicable domestic or foreign federal, state, or local law or regulation; or
(c) Breach of these Terms.
In the event that any claim, suit or proceeding is brought against the Company with respect to the foregoing, it shall give notice in writing to the Customer by mail at its address on file with the Company. This Paragraph shall not be construed in any way prohibited by law, including any interpretation that results in indemnification for the negligence or misconduct of an indemnitee.
13. C.O.D. OR CASH COLLECT SHIPMENTS
Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Deliver (C.O.D.)” shipments, bank drafts, cashier’s or certified checks, letter(s) of credit and other similar payment documents or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
14. COSTS OF COLLECTION
In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorneys’ fees and interest at eighteen percent (18%) per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
15. GENERAL LIEN AND RIGHT TO SELL CUSTOMER’S PROPERTY
(a) Company and Third Parties shall have a continuing lien on any and all property and documents relating thereto of Customer coming into Company’s actual or constructive possession, custody, or control or enroute, which lien shall survive delivery, for all charges, expenses or advances owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) or both.
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and the exercise of such lien.
(c) Unless, within thirty (30) days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to one hundred ten percent (110%) of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
16. NO DUTY TO MAINTAIN RECORDS FOR CUSTOMER
Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §§ 1508 and 1509) it has the duty and is solely liable for maintaining all records required under applicable law or regulation. Customer additionally waives any rights it may have regarding Company’s recordkeeping pursuant to 49 CFR § 371.1 et seq. Company shall only keep such records that it is required to maintain by applicable law, but not act as a “recordkeeper” or “recordkeeping agent” for Customer.
17. NO DUTY TO PROVIDE LICENSING AUTHORITY
Unless requested by Customer in writing and agreed to by the Company in writing, Company shall not be responsible for determining licensing authority or obtaining any license or other authority pertaining to the export from or import into the United States.
18. THIRD PARTY BILLS OF LADING AND AIR WAYBILLS
Customer agrees that Third Parties may issue bills of lading and air waybills, as appropriate, during the performance of their services. Customer accepts the terms and conditions contained on such Third Party bills of lading, air waybills, or any additional transactional terms issued by Company. As between Company and Customer, these Terms shall prevail in the event of conflict with any such additional terms and conditions.
19. NO MODIFICATION OR AMENDMENT UNLESS WRITTEN
These Terms may only be modified, altered, or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter, or amend same shall be null and void.
20. COMPENSATION OF COMPANY
The compensation of the Company for the Services shall be included with and is in addition to the rates and charges of all carriers, agencies, and other Third Parties selected by Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers, and others in connection with the shipment. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and litigation, including reasonable attorneys’ fees.
21. FORCE MAJEURE
Customer agrees that Company and Third Parties shall not be liable for losses, damages, delays, wrongful or missed deliveries, or nonperformance, in whole or in part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or such Third Parties, including but not limited to: (a) acts of God, including flood, earthquake, storm, hurricane, power failure, or other natural disaster; (b) war, hijacking, robbery, theft, or terrorist activities; (c) incidents or deteriorations to means of transportation, (d) embargoes, (e) civil commotions or riots, (f) defects, nature, or inherent vice of the goods; (g) acts, breaches of contract, or omissions by Customer, shipper, consignee, or anyone else who may have an interest in the shipment, (h) acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or (i) strikes, lockouts, or other labor conflicts.
In the event any Paragraph(s) or portion(s) hereof is found to be invalid or unenforceable, then in such event the remainder hereof shall remain in full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
23. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE
These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Georgia without giving consideration to principles of conflict of law. Customer and Company hereby:
(a) Irrevocably consent to the jurisdiction of the United States District Court for the Northern District of Georgia and the State Court of Fulton County, Georgia, whichever is applicable;
(b) Agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) Consent to the exercise of in personam jurisdiction by said courts over it; and
(d) Further agree that any action to enforce a judgment may be instituted in any jurisdiction.