These CUSTOMER SHIPPER TERMS AND CONDITIONS (these “Terms and Conditions”) and agreed upon pricing documents apply to all Services (defined below) provided by Titan Worldwide {hereafter “Broker”) to Shipper. Performance of any work by Broker for Shipper shall constitute acceptance by Shipper of these Terms and Conditions. The parties expressly waive any or all rights and remedies under Part B, 49 USC §13101 et. seq. as provided for by 49 USC §14101(b) to the extent such rights and remedies are in conflict with this Agreement. Broker and Shipper are sometimes collectively referred to herein as the “Parties”.
SERVICES
Broker is a licensed property broker by the Federal Motor Carrier Safety Administration (“FMCSA”), and, as a licensed broker, arranges for freight transportation. In order to satisfy some of Shipper’s transportation needs, Shipper desires to utilize the services of Broker to arrange for the transportation of some of Shipper’s freight (the “Services”). Broker’s responsibility in performing the Services shall be limited to arranging for, but not actually performing, transportation of some of Shipper’s freight. The Parties may, upon written agreement duly executed by the Parties, include additional service terms.
PAYMENT FOR SERVICES
a. Shipper shall pay Broker for the Services provided by Broker under these Terms and Conditions at the rates and charges as agreed between the parties. All payments by Shipper shall be remitted to Broker via bank transfer or at the following address, or such other addressed specified by Broker to Shipper in writing:
Titan Worldwide
PO Box 131002
Houston, TX 77219
b. Payment of invoices shall be made by Shipper within thirty (30) days (or unless otherwise agreed upon in writing) after delivery of each shipment. Interest at the rate of the lesser of: (i) one percent (1%) per month, or (ii) the highest rate allowed by law shall accrue on overdue payments from the date due up to and including the date of payment.
c. All billing or invoice inquiries or disputes must be presented to Broker within thirty (30) days after Shipper’s receipt of an invoice or delivery of Shipper’s load. All payment inquiries or disputes must be presented to the other party within thirty (30) days of receipt of payment. Any inquiries or disputes not presented within the time periods set forth herein shall be deemed waived.
d. Except as otherwise provided in these Terms and Conditions, each party must bring a civil action to recover damages or amounts claimed under these Terms and Conditions within two (2) years from the date of shipment. Any matters not filed within the above limitations period shall be deemed waived.
e. It is expressly agreed, as a condition of Broker’s provision of services to Shipper, Broker shall have a lien on all of Shipper’s freight in Broker’s possession for the total amount owed to Broker for all freight charges, storage and charges for related services, including charges related to freight previously delivered upon the promise of Shipper to pay such charges.
SHIPPER’S OBLIGATIONS
a. Shipper shall be responsible to Broker for timely and accurate delivery instructions and description of the cargo (i.e. dimensions, weight, VIN, unit ID, etc.), including any special handling or security requirements, for any shipment.
b. Shipper agrees that in their absence for any reason or unavailable at the time of pickup and/or delivery, it will be the shipper(s) responsibility to designate a person to act as their agent. If Consignee or its authorized agent is not present for any reason at the time of delivery, the commodity (s) will be placed in storage, at Shipper’s cost.
c. Shipper will ensure the cargo and packaging is able to withstand the rigors of transport, including lashing and securement, or to advise Broker in writing in advance, and include technical drawings, of any special requirements in lifting, handling, blocking, securing, or covering of cargo. Broker will not be responsible for the structural or cosmetic condition of the cargo.
BROKER’S OBLIGATIONS
a. Broker warrants that it has entered into or will enter into a bilateral written contract of carriage with each carrier it utilizes in the performance of this Agreement (“Carriers”).
b. Broker shall comply with all applicable provisions of the FMCSA, and all applicable state and local laws, rules, and regulations to the extent they govern the Services provided by Broker hereunder.
c. Broker shall promptly and efficiently retain and contract with motor carriers (“Carriers”) as necessary to meet Shipper’s transportation needs.
d. Broker shall notify Shipper of any accidents, spills, theft, hijacking or other events which impair the safe and prompt delivery of Shipper’s goods in its control.
e. Broker shall notify Shipper of any refused freight at Shipper and/or third-party locations and request additional instructions regarding delivery or storage of the refused goods. Such notice by Broker shall be performed as soon as reasonably practical.
f. At the request of Shipper, Broker agrees to provide copies of proof of acceptance and delivery of loads in the form of a signed bill of lading or delivery receipt. Shippers’ insertion of Broker’s name on a bill of lading or delivery receipt shall be for Shipper’s convenience only and shall not change Broker’s status as a property broker. The Parties agree that bills of lading and delivery receipts shall be used solely as receipts for shipment and to identify the kind and quantity of goods, place of pickup and delivery, shipper and consignee and other information as required by Shipper. References to classifications, tariffs, service guides or other publications and/or contractual terms and conditions on the face or reverse side of such documents shall be null and void.
g. Broker shall take commercially reasonable steps to require its Carriers to maintain policies of insurance as follows: {I) cargo insurance with minimum limits of liability of $100,000 per occurrence; (ii) automobile liability insurance with minimum limits of liability of $1,000,000 combined single limit for bodily injury and property damage; (iii) comprehensive general liability with contractual liability insurance with minimum limits of liability of $1,000,000 per occurrence;(iv) worker’s compensation insurance with minimum limits as may be required by statute; and (v) any other insurance required by the Department of Transportation or any other federal, state or local regulatory agency.
LIABILITY
a. Broker Liability. Broker shall not be liable under any circumstances to Shipper for the loss or damage to Shipper’s goods. Liability, if any, for such loss or damage shall be borne solely by the Carriers. Broker’s liability to Shipper, if any, for breach of any representation, warranty or covenant under these Terms and Conditions shall be limited to the total compensation for services provided by Broker under these Terms and Conditions in connection with such services.
b. Claims Processing. Broker shall, without assuming any liability for loss or damage Claims, assist Shipper in its pursuit of Shipper Claims against liable Carriers.
c. Shipper Liability. Shipper shall be directly liable to Broker and its Carriers for costs and accessorial charges incurred by either as the result of an order being cancelled by Shipper or as required to perform pick-up or delivery of Shipper orders.
INDEMNITY
Shipper agrees to defend, indemnify, and hold Broker harmless from and against any and all loss, damage fees (including attorneys’ fees) or injuries (including death) to the extent that such loss, damage, fees, or injuries are caused or contributed to by the negligent or willful acts or omissions of Shipper, its employees, agents, contractors or subcontractors. Except for damage to Shipper’s goods, liability for which is set forth elsewhere in these Terms and Conditions, Broker agrees to defend, indemnify and hold Shipper harmless from and against any and all loss, damage, fees (including attorneys’ fees) or injuries (including death) to the extent that such loss, damage, fees or injuries are caused or contributed to by the negligent or willful acts or omissions of Broker, its employees, agents, contractors or subcontractors.
NONEXCLUSIVE TERMS AND CONDITIONS.
It is understood and agreed between the parties hereto that Broker shall be free to accept freight for transportation from shippers other than Shipper and that Shipper shall be free to tender freight for transportation to brokers other than Broker.
INDEPENDENT CONTRACTOR
Broker shall perform the services hereunder as an independent contractor and shall have exclusive control and direction of all persons engaged in providing the Services. Broker assumes full responsibility for the payment of local, state, and federal payroll taxes or contributions or taxes for unemployment insurance, workers’ compensation, old age pensions or other social security and related protection and agrees to comply with all applicable rules and regulations pertaining thereto.
GOVERNING LAW
These Terms and Conditions, and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by the law of the jurisdiction in which the Services are provided without giving effect to the conflict of law provisions thereof. As a pre-condition of bringing any action, each party shall appoint a senior official to attempt in good faith to settle the dispute.
FORCE MAJEURE
Neither Shipper nor Broker shall be liable for default in the performance of discharge of any duty or obligation under these Terms and Conditions, or for loss, damage, or delay, when caused by the acts of God, civil or military authority, public enemy, fire, floods, odors, sprinkler leakage, wind, storm, moth ,by rats, mice or other vermin, labor disorders, strikes, work stoppages or other labor trouble, disturbance or interference of whatever cause or nature, whether primary, secondary or tertiary, etc., or accidents, riots, civil commotion, closing the public highways, governmental interference or regulations and other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of the affected party (a “Force Majeure Event”). A Force Majeure Event shall not delay a party’s obligation to timely pay any sum due hereunder.
SEVERABILITY AND WAIVER
If any phrase, clause, sentence, or other provision contained in these Terms and Conditions violates any applicable statute, ordinance, rule or law, such phrase, clause, sentence, or provision shall be ineffective to the extent of such violations without invalidating any other provision of these Terms and Conditions. The waiver by either party of any breach or default hereunder, or the failure of either party to enforce any of the terms and conditions herein, shall not affect, limit, or waive the right of either party thereafter to enforce and compel strict compliance with these Terms and Conditions.
ENTIRE AGREEMENT
These Terms and Conditions represent the entire understanding of the parties with respect to the subject matter herein and may not be amended except in writing signed by both Shipper and Broker. No other tariff provisions shall apply to the Services provided by Broker to Shipper under these Terms and Conditions. Broker objects to any terms proposed in Shipper’s acknowledgment or other form of acceptance of Broker’s offer to perform services which add to, vary from, or conflict with these Terms and Conditions. These Terms and Conditions may be modified only by a written instrument executed by authorized representatives of both Broker and Shipper. If Broker’s offer to perform service has been issued in response to Shipper’s offer and if any of the Terms and Conditions herein add to, vary from or conflict with any terms of Shipper’s offer, then the acceptance by Shipper of Broker’s tender to perform services shall constitute an acceptance of Shipper’s offer subject solely to these Terms and Conditions, and any additional, different or conflicting terms in Shipper’s offer are rejected by Broker.
WAIVER OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITY, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND EVEN IF SUCH PARTY WAS NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.