TERMS AND CONDITIONS OF SURFACE TRANSPORTATION SERVICE
“Rules Circular”
These Terms and Conditions of Surface Transportation Service (these “Terms and Conditions”) apply to surface transportation Services provided for Customer by Genesis Worldwide, LLC, unless expressly disclaimed by a written agreement signed by the Company and the Customer.
Definitions
a) “Company” shall mean Genesis Worldwide, LLC. Company is authorized and qualified to operate as a motor carrier pursuant to 49 C.F.R. 371 under MC number MC-1084146.
b) “Customer” shall mean any entity responsible for requesting that Company provide services governed by these Terms and Conditions, any entity responsible for payment to Company for such services, or any entity receiving the benefit of such services.
c) “Services” shall mean all transportation services provided by Company to or on behalf of Customer pursuant to Company’s motor carrier authority provided by Company in interstate, intrastate and/or foreign commerce between points in North America. Services initiated on a per shipment basis are predicated on an individual rate agreement (the “Spot Quote”). The Spot Quote rate will apply per vehicle/container/trailer/car used regardless of actual weight of a shipment and notwithstanding any other published rate or rule in effect. If Customer desires to change the terms of the shipment or cancel the shipment, Customer must notify Company of the changes or cancellation prior to dispatch, or Customer may incur additional charges.
e) “Transloading” is defined as activities performed in the loading, unloading or transfer of a product using non‐motor carrier equipment types. Examples of equipment used in transloading include cranes, forklifts, boom trucks, etc. Transloading can include short term storage of less than 30 days outside or inside of a facility.
Customer's Warranties
Customer shall be responsible for and warrants compliance by it and all consignors that it is authorized to tender the cargo in question to Company and that all descriptions of the cargo are complete, accurate, and include all information required by applicable laws, rules, and regulations, including, but not limited to, those related to hazardous materials or dangerous goods, customs laws, import and export laws, anti‐corruption laws and governmental regulations of any jurisdiction to, from, through or over which the shipment may be carried. Company assumes no liability to Customer or to any other person for any loss or expense due to the failure of Customer to comply with this provision. Any individual or entity acting on behalf of Customer in scheduling shipments hereunder warrants that it has the right to act on behalf of Customer and the right to legally bind Customer. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM AND AGAINST ALL LOSS, COST, PENALTY AND EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH COMPANY PAYS OR INCURS AS A RESULT OF CUSTOMER FAILING TO FULLY DISCHARGE THIS OBLIGATION.
Customer Responsibilities
Customer warrants that the consignor shall be responsible for: (i) loading, blocking and bracing the shipment in the Carrier vehicle in such proper and timely manner to prevent shifting of the shipment during normal transportation and to comply with highway weight limits and (ii) that consignee will unload shipments from Carrier vehicle in a timely manner and within free time allowed by Carrier. Detention beyond allowed free time may cause assessment of additional charges. All shipments shall be treated as “Shipper load and count, consignee unload” where shipments are delivered with seal intact. Customer agrees, and also warrants that consignor will agree, to any Hazardous Materials Transportation Policy maintained by Company, which will be provided upon request, when shipping hazardous materials and that consignor is knowledgeable about shipping hazardous materials. Company will have no liability for any shortage from any sealed container, nor with respect to damage caused by improper loading. Company may break any seal if, in Company’s sole discretion, Company or the driver believes that the load is unsafe or improperly loaded. Likewise, upon demand by law enforcement personnel, Company may break any seal and access any trailer or container. A missing or broken seal shall not affect Company’s liability with respect to cargo loss or damage, nor shall it affect the cargo claimant’s burden of proof with respect to cargo loss or damage. A broken or missing seal, in and of itself, is not evidence of damage, nor evidence that a shipment may have been subjected to contamination.
Payment
Company agrees to submit to Customer an invoice for all Services provided together with proof of delivery. Customer agrees to pay all such invoices within 15 days of receipt without offset. Invoices not paid within this time limit will be subject to interest at the rate of 1.5% (or, if less, the maximum rate permitted by applicable law) per month or any part thereof plus reasonable attorney’s fees incurred by Company related to any collection efforts to secure payment including but not limited to litigation.
Bills of Lading
Any bill of lading used by Customer to tender a shipment to Company shall contain the consignor’s name and address, consignee’s name and address, description of the goods, number of packages, and weight. Any terms, conditions, and provisions of a bill of lading or other transit documentation shall be subject and subordinate to these Terms and Conditions. Any bill of lading shall constitute a delivery receipt only.
Independent Contractor
Company and Customer are and will remain separate independent contractors with respect to the Services being performed hereunder. Nothing herein shall be construed as creating a legal partnership or joint venture between any parties.
Insurance
Company shall procure and maintain all insurance coverages required by applicable law. Unless otherwise agreed in writing, all shipments are subject to a maximum cargo liability as set forth herein. Customer is responsible for inquiring with Company prior to transport of each load as to insurable limits, insurance, and conditions. Customer is responsible for acquiring insurance to cover all risks beyond Company’s maximum liability.
Indemnification and Limitation of Liability
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 COMPANY 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 COMPANY WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY FROM AND AGAINST, AND SHALL PAY AND REIMBURSE COMPANY FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THESE TERMS AND CONDITIONS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAW, RULE OR REGULATION; OR (iv) CUSTOMER’S FAILURE TO PROVIDE, OR COMPANY’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUESTS OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF COMPANY.
Cargo Liability and Claims
(a) Company’s liability for loss, damage, or destruction to cargo transported shall be that of a motor carrier as set forth in the Carmack Amendment currently codified at 49 U.S.C. § 14706 (Carmack), as amended from time to time, regardless of whether transport is interstate or intrastate, or involves foreign commerce. The period of Company’s liability shall terminate once Company has made the trailer available for unloading at the consignee’s location. Company’s sole liability with respect to delay in pick-up or transportation shall be if Company fails to deliver with reasonable dispatch and such failure results in loss, damage or destruction to cargo being transported. Unless a higher value is declared by Customer in accordance with the provisions herein and the additional freight charges applicable to such a declaration have been paid, all truckload shipments will be released to a maximum value not to exceed five US dollars ($5.00) per pound per package subject to a maximum liability of US$100,000 per trailer or conveyance, whichever is less. Used machinery will have a released value of US$0.10 per pound.
(b) Declaring values in excess of $100,000. Company must be notified at the time it agrees to transport cargo that a value in excess of $100,000 (but in any event, not exceeding $250,000 in total value) will be declared, and the amount that will be declared. The released value shall be valid (meaning Company’s $100,000 limitation of liability shall apply) unless Company has agreed in writing signed by an authorized representative to accept the cargo at the declared value. If Company agrees to accept the additional liability, Company will provide a signed rate confirmation sheet acknowledging Company’s acceptance of increased liability and reflecting the additional applicable freight charges. Company’s driver is not an authorized representative of Company for purposes of this provision, meaning that declaration of value on the bill of lading at the time of tender, without complying with the remaining provisions of this section, is an insufficient method of declaring value. Declared values in excess of $250,000 shall not be accepted, and if Customer attempts to declare a value in excess of $250,000 per trailer or conveyance, Company’s liability shall continue to be limited to $100,000 per trailer or conveyance.
(c) Minimum filing requirements. All claims for loss, damage, injury, or delay to cargo must be filed with Company within nine (9) months after the delivery of the property. However, claims for failure to make delivery (or any portion thereof) must be filed within nine (9) months from the date delivery should have been made and shall contain the following: (1) facts sufficient to identify the shipment (or shipments) or property involved, (2) assert liability for alleged loss, damage, injury, or delay, and (3) make a claim for the payment of a specified or determinable amount of money. Each claim will be supported by the original bill of lading, evidence of the freight charges, if any, and either the original invoice, a copy of the original invoice, or an extract made therefrom, certified by the claimant to be true and correct. Meeting these requirements will be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage. For the removal of doubt, notations of shortage or damage, or both, on freight bill, delivery receipts, or other documents will not be considered by Company as sufficient to comply with the minimum claim filing requirements specified above. Expiration of the nine (9)‐month period shall be a complete and absolute defense against any such cargo claim, regardless of any extenuating or mitigating circumstances or excuses of any nature whatsoever. Where a claim is timely submitted, Customer shall file a lawsuit within two years of the date of Company’s denial of the claim and failure to file within the two (2)-year period shall be a complete and absolute bar against any such cargo claim, regardless of any extenuating or mitigating circumstances or excuses of any nature whatsoever.
(d) Where transloading and/or warehousing services are provided, Company shall bear no liability for the acts and omissions of the transloading and/or warehousing service and liability for cargo loss or damage in that instance shall be limited to the coverage of each applicable transloader or warehouse provider used by Company unless Customer 1) declares value and requests specific cargo coverage from Company in writing and 2) receives approval to provide cargo coverage for these services from Company in writing.
(e) If service is arranged to or from points in Mexico, all claims for loss or damage occurring there will be filed by Customer with the authorized Mexican carrier retained by Company subject to applicable Mexican statutes, laws and limitations of liability.
Undercharge and Overcharge Claims
Except as otherwise expressly provided for herein, Company shall process all overcharges as provided in 49 C.F.R. Part 378. The time limit for filing of initial claims for alleged undercharges or overcharges under the terms of this Agreement shall be one hundred and eighty (180) days from the date of delivery of the shipment. Failure to file a claim challenging charges within said one hundred and eighty (180)‐day period shall forever bar any action at law for recovery of same. Any action at law by either party to collect alleged undercharges or overcharges under the terms of this Agreement shall be commenced not later than eighteen (18) months after delivery of the shipment. Expiration of said eighteen (18)‐month term shall be a complete and absolute defense against any such claim, regardless of any extenuating or mitigating circumstances or excuses of any nature whatsoever.
Waiver
Company and Customer expressly waive all rights and remedies allowed under 49 U.S.C. § 14101(b)(1) to the extent that such rights and remedies conflict with these Terms and Conditions. Failure of Customer or Company to insist upon the other party’s performance under these Terms and Conditions or to exercise any right or privilege herein will not be a waiver of any rights or privileges.
Force Majeure
Neither Customer nor Company will be liable for any delay in the performance of their respective obligations for Services resulting directly or indirectly from or contributed to by any acts of God, acts of government or other civil or military authorities, acts of terrorists, fires, accidents, floods, war, riot or other circumstances beyond its reasonable control.
Severability
In the event any paragraph(s) and/or portion(s) hereof are found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
Choice of Law, Jurisdiction, and Venue
These Terms and Conditions and the relationship of Customer and Company shall be construed according to general principles of federal transportation law and the laws of the State of Nevada without giving consideration to principles of conflict of laws. Any lawsuit regarding, relating to, or arising out of either the services provided by Company or the Terms and Conditions of Service shall be filed in a court of competent jurisdiction in Clark County, Nevada. Company and Customer hereby consent to the sole and exclusive jurisdiction of such courts in the resolution of disputes arising from or related to Company’s service or these Terms and Conditions of Service, and hereby waive any defenses to personal jurisdiction of, or venue in, such courts.