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These Terms and Conditions for Freight Broker Services (“Freight Terms”) are the only terms that govern the provision of Services, defined below, by Speedy Freight LLC, its subsidiaries, affiliates, successors and assigns (“Broker”) to any other party (shippers, brokers, or any other party, each hereafter described as “Shipper”) who engages Broker to arrange motor carrier transportation of Shipper’s freight.
These Freight Terms prevail over any terms and conditions of any invoice, billing statement, confirmation, receipt, bill of lading, contract, or any other document relating to any Services provided by Broker, regardless of whether or when Shipper
has submitted its request for proposal, order, or such terms. Provision of Services to Shipper does not constitute acceptance of any of Shipper’s terms and conditions and does not serve to modify or amend these Freight Terms.
Broker’s provision of Services to Shipper is conditioned on Shipper’s acceptance without modification of these Freight Terms, and Shipper’s engagement of Broker to provide Services constitutes Shipper’s agreement to all these Freight Terms.
Broker reserves the right to change these Freight Terms at any time for any reason or no reason, with or without notice. Shipper and Broker may be referred to herein individually as a “Party” and collectively as the “Parties”.
2.1. Broker agrees, as an independent contractor and a federally registered broker of property (MC#4076114), to arrange motor carrier transportation of Shipper’s freight, when accepted by Broker, pursuant to these Freight Terms and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of freight covered by these Freight Terms (described throughout these Freight Terms as the “Services”).
Nothing in these Freight Terms shall be deemed to require Broker to provide Services upon request of Shipper, and Broker reserves the right to accept or decline, in its sole discretion, any request for Services. Broker shall have exclusive control and direction of Broker’s personnel engaged in providing brokerage services hereunder and assumes full responsibility for their acts and omissions. The Parties recognize and agree that Broker is not a motor carrier, never takes possession of Shipper’s freight, does not maintain any control over the means and manner of delivery, and shall not itself perform the actual physical transportation of Shipper’s freight as a motor carrier.
2.2. Under no circumstances is Broker to be deemed a motor carrier. In the event Broker is identified as a motor carrier on any document, such designation shall be only for the convenience of Shipper or shall be deemed a mistake but in no event shall the designation have any legal impact or authority to change Broker’s status as a broker.
3.1. For service provided under these Freight Terms, Shipper shall pay the agreed upon freight rate and shall reimburse Broker for the agreed upon surcharges. Broker’s invoice shall all rates and charges of the motor carrier.
3.2. Shipper agrees the rates provided by Broker are for Shipper only and that Shipper will not let other companies use the rates without authorization from Broker. Shipper agrees not to resell the services of Broker to other companies and Shipper agrees to immediately notify Broker if another company is found to be using Shipper’s account with Broker.
These rates are subject to change without notice. These rates may also change if the characteristics of the actual Shipment differ from those reported by You such as weight, dimension, commodity and other conditions not accurately described at the time the Shipment is processed.
3.3. For all rates and surcharges referenced above, Shipper agrees to pay or cause to be paid each properly-substantiated invoice within 14 days of receipt of invoice, unless Shipper in good faith disputes the invoice (in whole or in part), in which case Shipper may withhold payment of the disputed amount.
In such case, the Parties shall promptly confer to resolve the dispute and no interest or late payment fee shall apply to the amount withheld by Shipper. However, if it is determined by a court that Shipper wrongfully withheld payment of invoice, interest shall accrue from the due date of the invoice through the date of payment in the amount of 1% per month.
Broker is a third-party intermediary and does not handle any shipments of Shipper. All claims must be presented to the motor carrier handling the shipment.
5.1. It is understood and agreed that the Broker is not a motor carrier and that Broker shall not be held liable for any loss or damage to the cargo.. Unless responsibility is expressly assumed in writing by Broker, Shipper shall be responsible for procuring any additional insurance coverage to reduce or eliminate any potential loss or exposure for the cargo.
5.2. UNDER NO CIRCUMSTANCES WILL BROKER BE LIABLE TO SHIPPER, ANY PERSON CLAIMING BY OR THROUGH SHIPPER, ANY SUCCESSOR IN INTEREST TO SHIPPER, OR ANY OTHER PERSON FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY REASON WHATSOEVER WHETHER OR NOT THE LIKELIHOOD OR CERTAINTY OF SUCH DAMAGES WAS KNOWN OR SHOULD HAVE BEEN KNOWN TO BROKER.
5.3. IN NO EVENT SHALL BROKER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIFIC DAMAGES WHICH MAY ARISE FROM ANY LOSS OR DAMAGE DURING THE HANDLING, SHIPMENT, OR DELIVERY OF CARGO.
5.4. NOTWITHSTANDING ANY OTHER LANGUAGE IN THESE FREIGHT TERMS, IN NO EVENT SHALL BROKER BE LIABLE TO SHIPPER FOR AN AMOUNT EXCEEDING THE LESSER OF ONE THOUSAND DOLLARS OR THE TOTAL FEES PAYABLE TO BROKER BY SHIPPER.
Shipper shall defend, indemnify and hold Broker other harmless against any claims, actions or damages which are connected to these Freight Terms, including, but not limited to, cargo loss, or damage, and payment of rates and/or accessorial charges to motor carriers.
If any term or condition of these Freight Terms is held to be invalid or unenforceable by a court or tribunal of competent jurisdiction, such term or condition shall be deemed severed from these Freight Terms; and these Freight Terms shall otherwise remain in full force and effect.
Broker is an independent contractor. Broker, the motor carrier, and their employees, are not, and will not be, employees or agents of Shipper. Nothing contained herein shall create or imply any employment, partnership, joint venture or agency relationship between Broker, motor carrier, or their employees and Shipper.
Shipper does not exercise or retain any control or supervision over Broker, its operations, employees, agents or motor carriers. Shipper’s requirements for motor carriers are intended to ensure that Shipper obtains efficient, effective and reliable transportation services and are not intended to control or supervise Broker or any motor carrier.
9.1. Pursuant 76 Fed. Reg. 411 (Jan. 4, 2011), issued by the FMCSA, Broker and Shipper consent and agree to conducting business electronically using one or more of the following methods: (i) the captured image method – wherein an image of a scripted name or legal mark is created on an electronic pad, and that image is then used to populate an electronic version of the document to be signed electronically by the Shipper, the Broker, or the motor carrier, or all three; or (ii) the web-portal method, under which electronic signatures are accomplished via a web portal in a manner that identifies and authenticates Shipper, as the source of the electronic communication transmitted through the web portal (i.e., by Shipper’s logging onto the web portal using unique credentials) and indicates Shipper’s approval of the information contained in the electronic communication.
9.2. This consent encompasses the use of electronic methods to accomplish the signature of any document, including, without limitation, any supplement, modification, addendum, amendment, notice, consent and/or waiver, required by
these Freight Terms or required by FMCSA regulations to be generated and maintained (or exchanged by private parties), including, without limitation, shipment invoices, bills of lading and other supporting shipment documentation.
9.3. The Parties agree that when either Party uses any of the electronic methods described above to accomplish electronic signatures, the chosen method: (1) identifies and authenticates the signing Party as the source of the electronic communication; (2) indicates the signing Party’s approval of the information contained in the electronic communication; and (3) produces an electronic document with the same integrity, accuracy, and accessibility as a paper document or handwritten signature.
9.4. Either Party may elect, with respect to any document, to use a manual/hardcopy signature, provided that such election shall not preclude the other Party from applying an electronic signature, of the above-specified kind, to the same document.
Brokers’ obligations to arrange transportation services, and any obligation of Shipper’s to use services arranged by Broker, shall be temporarily suspended during any periods when either of the Parties is unable to comply with the requirements of these Freight Terms by reason of acts of God, public enemy, war or terrorism, fire, floods, hail, epidemics, pandemics, disease, civil commotion, closing of public highways, act or interference of public authority, and other situations similar to the foregoing, beyond the control of the affected Party (each, a “force majeure event”).
The Party unable to perform because of a force majeure event shall use reasonable efforts to mitigate the other Party’s damages, and shall give the other Party reasonable notice of the force majeure event.
These Freight Terms shall be construed and interpreted in accordance with and be governed by the laws of the State of Delaware and any federal regulations and legislation that pre-empt or supplement the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the laws of other jurisdictions to apply. Further, the Parties consent to submit all legal proceedings directly or indirectly arising out of, pertaining to or relating to these Freight Terms, to the exclusive jurisdiction of the courts located in Denton County in the State of Texas, EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE FREIGHT TERMS.
Except in the event of the nonpayment of fees by Shipper, in the event of any dispute over any Freight Terms of these Freight Terms, Shipper or Broker shall have the right, in its sole discretion, to submit the claim to arbitration before the American Arbitration Association, in addition to its other rights and remedies. If the dispute submitted to arbitration by either party involves damages of less than $75,000, the American Arbitration Association Expedited Procedures shall apply. Any arbitration shall take place in Denton County, Texas.
These Freight Terms do not confer any enforceable rights or remedies upon any person or party other than the Broker and a Shipper who engages Broker for Services. There are no third- party beneficiaries to these Freight Terms.
Any terms of these Freight Terms that would, by their nature, survive the termination of these Freight Terms, will so survive.
Payment and Credit Terms (“Credit Terms”)
These Credit Terms shall be applicable to all payments due and owing under to Broker including in the event Shipper utilizes credit from Broker for the Services as defined in the Freight Services Terms and Conditions.
1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1.
“Account” means the Shipper ’s account with the Broker;
“Application for a Credit Account” means the written application by the Shipper for the freight services from the Broker on Credit;
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Dallas, Texas are authorized or required by Law to be closed for business;
“Shipper’s Address” means the physical address identified by Shipper in the applicable Purchase Order as to where invoices are to be sent to and/or in the Application of Credit.
“Credit” means the freight services offered on the basis of credit with payment as set out in Broker’s credit approval;
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
“Purchase Order” means Shipper ‘s purchase order issued to Broker hereunder, including all Credit Terms attached to, or incorporated into, such purchase order;
2. Credit Terms. As the charges on Shipper ’s Account increase, the amount of credit available for Shipper to use will decrease. Broker will calculate how much credit Shipper has available by deducting from your credit limit the amount you owe Broker including the amount of any purchases made by Shipper but not yet posted to Shipper ’s Account.
3. Terms of Payment.
3.1. Shipper shall reimburse Broker for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.
3.2 Payment shall not be deemed to be made until the payment has been honored, cleared or recognized. Receipt of check
will not constitute payment and Shipper shall remain liable for payment until payment is received by Broker.
3.3. Shipper shall make all payments in US Dollars by check or wire transfer and pursuant to the terms set forth in the invoice issued by Broker to Shipper .
3.4. The Broker may, in its discretion, allocate any payment received from the Shipper towards any invoice that the Broker determines and may do so at the time of receipt or at any time afterwards.
4. Reduction or Revocation of Credit. If Broker’s credit insurance carrier determines that (i) Shipper ‘s financial condition or creditworthiness is inadequate or unsatisfactory or (ii) if within any twelve (12) month period, two (2) or more payments are made by Shipper outside of the payments terms offered by Broker, then in addition to Broker’s other rights, Broker may without liability or penalty take any of the following actions:
4.1. Upon prior written notice, modify the payment terms offered by Broker for outstanding and future purchase orders, including requiring Shipper to pay cash in advance or cash on delivery;
4.2. Upon written notice to Shipper, reduce Shipper ’s Credit terms;
4.3. Upon notice to Shipper, revoke Shipper ’s Credit terms herein and terminate this Agreement; or
4.4. Any combination of the above.
Regardless of the cause or reason for the revocation or termination of credit in connection with Shipper ’s account, Shipper shall remain responsible for the payment of all amounts owed to Broker.. No actions taken by Broker under this Section 4 (nor any failure of Broker to act under this Section) shall constitute a waiver by Broker of any of its rights to enforce Shipper ‘s obligations including, but not limited to, the obligation of Shipper to make payments.
5. Default. The following events shall constitute an event of default (“Event of Default”):
5.1. Shipper ’s failure to pay when due any and all amounts due and owing to Broker and such non-payment continues for ten
(10) days after receipt of written notice from Broker;
5.2. Shipper (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
5.3. Broker terminates any other agreement between (i) Broker and Shipper or (ii) Broker and Shipper ‘s affiliates, due to Shipper ‘s or Shipper ‘s affiliates’ breach or non-performance thereof;
6. Remedies. Upon an Event of Default, Broker shall have the right without notice or demand to pursue any of its rights and remedies at law or in equity, including but not limited to any of the following remedies:
6.1. Rejection of Shipper ’s Purchase Orders;
6.2. Cancellation of Purchase Order accepted by Broker;
6.3. Termination of Shipper ’s Credit and acceleration and demand of immediate payment in full of all amounts due and owing by Shipper to Broker.
Failure to exercise any of the above options shall not constitute a waiver of the right to exercise same in the event of any subsequent Event of Default. Broker shall not, by any act of omission or commission, be deemed to waive any of its rights, remedies or powers hereunder or otherwise unless such waiver is in writing and signed by the Broker, and then only to the extent specifically set forth therein. The rights, remedies and powers of the holder hereof, as provided in these Credit Terms are cumulative and concurrent, and may be pursued singly, successively or together against the Shipper and any other security given at any time to secure the repayment hereof, all at the sole discretion of Broker.
7. Credit Reports. Shipper consents to Broker obtaining information about Shipper from credit reporting agencies and other sources Broker deems appropriate in considering Shipper ’s application for credit and subsequently for purposes of updates, renewals, or extensions of credit granted as a result of this application or in reviewing or collecting Shipper ’s account. Shipper also authorizes the Trade and Bank references listed in the credit application submitted by Shipper to Broker, to release to Broker, on a continuing basis, any other financial information required by Broker to make its credit decisions.
8. Term. The term of Shipper ’s Credit commences on Broker’s approval of Shipper credit and continues for a period of twelve (12) months, renewing automatically for an additional twelve (12) months unless and until earlier terminated as provided under these Credit Terms (the “ Term”).
9. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Credit Terms (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the foregoing, for the purposes of these Credit Terms, notice given by facsimile or e-mail (with confirmation of transmission) will satisfy the requirements of this Section 11. Except as otherwise provided in these Credit Terms, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notice to Broker shall be delivered to 2450 Lakeside PKWY STE 150 – 215, Flower Mound, TX 75022. Notice to Shipper shall be sent to Shipper ’s information listed on the credit application.
10. Choice of Law. These Credit Terms are governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the statutes, laws and decisions of the State of Delaware, without regard to its conflict of laws provisions.
11. Attorneys’ Fees and Costs. If any suit or action is instituted or attorneys are employed to enforce these Credit Terms or any part hereof, the prevailing party shall be entitled to payment of all costs of collection, including reasonable attorneys’ fees and court costs.
12. Severability. If any term or provision of these Credit Terms is deemed to be invalid by reason of the operation of law, or by reason of the interpretation placed thereon by any administrative agency or any court, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Credit Terms or invalidate or render unenforceable such term or provision; provided, however, that if any fundamental term or provision of these Credit Terms, is invalid, illegal, or unenforceable, the remainder of these Credit Terms shall be unenforceable. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall modify these Credit Terms to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13. Waiver. No waiver under these Credit Terms is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
14. Cumulative Remedies. All rights and remedies provided in these Credit Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may
now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
15. Consent To Jurisdiction. THE SHIPPER IRREVOCABLY AGREES THAT, SUBJECT TO THE BROKER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THESE CREDIT TERMS WILL BE LITIGATED IN COURTS HAVING SITUS IN DENTON COUNTY, STATE OF TEXAS OR THE UNITED STATES EASTERN DISTRICT COURT FOR TEXAS. SHIPPER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN TEXAS.
16. Waiver Of Jury Trial. THE SHIPPER AND BROKER (BY ACCEPTANCE OF THESE CREDIT TERMS), HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THESE CREDIT TERMS OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THESE CREDIT TERMS OR (B) ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THESE CREDIT TERMS AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE SHIPPER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE BROKER ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
15.1. Shipper represents that the information supplied in the Application for a Credit Account is in all respects complete, accurate and truthful. Shipper agrees to notify Broker promptly, in writing, of any substantive changes in the information provided.
15.2. Shipper shall immediately notify Broker of any change of postal or email address or change in ownership, and, failing such notification, any notice to Shipper is effectively sent if sent by post or email to Shipper ’s last known address.
15.3. Nothing in these Credit Terms creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties.
Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
15.4. These Credit Terms and the terms of Broker’s credit extension, together with any exhibits, constitutes and expresses the entire agreement of the parties. In the case of conflict between this document and any other contract or document, the parties that understand that this agreement controls, unless stated otherwise by the parties.
15.5. These Credit Terms may be changed at any time by Broker with or without notice.
These terms and conditions for Warehouse storage and fulfillment services (“Storage Terms”) are the only terms that govern the provision of Services, defined below, by Speedy Freight LLC, its subsidiaries, affiliates, successors and assigns (“Warehouse Operator”) to any other party (shippers, brokers, or any other party, each hereafter described as “Depositor”) who engages Warehouse Operator to arrange for warehousing of Depositor’s items. These Freight Terms prevail over any terms and conditions of any invoice, billing statement, confirmation, receipt, bill of lading, contract, or any other document relating to any Services provided by Warehouse Operator, regardless of whether or when Depositor has submitted its request for proposal, order, or such terms. Acceptance of deposits from Depositor does not constitute acceptance of any of Warehouse Operator’s terms and conditions and does not serve to modify or amend these Storage Terms. Warehouse Operator’s provision of Services to Depositor is conditioned on Depositor’s acceptance without modification of these Storage Terms, and Depositor’s engagement of Warehouse Operator to provide Services constitutes Depositor’s Storage Terms to all these Storage Terms. Warehouse Operator reserves the right to change these Storage Terms at any time for any reason or no reason, with or without notice. Warehouse Operator and Depositor may be referred to herein individually as a “Party” and collectively as the “Parties”.
a. Warehouse Operator shall provide warehousing, storage, handling, delivery, fulfillment and related services (the “Services”) for the goods tendered by Depositor from time to time under these Storage Terms (“Goods”) as outlined in the applicable SOW between Warehouse Operator and Depositor. Warehouse Operator shall provide the Services in its facilities located at 2420 McIvers, Suite 101, Carrollton, TX 75006 (“Warehouse”).
b. If Warehouse Operator provides additional services, including special packing or handling services, it shall provide them (i) for the additional fees in effect and agreed to in writing at the time Depositor requests the special services, and (ii) solely as agent for Depositor, and not as a bailee or warehouseman.
c. The terms and conditions of these Storage Terms, together with the written price quotations, and warehouse receipts issued by Warehouse Operator for the Goods stored under these Storage Terms , constitute the sole and entire Storage Terms of the Parties with respect to the subject matter of these Storage Terms , and supersedes all prior and contemporaneous understandings, Storage Terms s, representations and warranties, both written and oral, with respect to such subject matter.
d. These Storage Terms, price quotes, and related warehouse receipts for each tender of Goods hereunder constitute a “Warehouse Receipt” for the purposes of Article 7 of the Uniform Commercial Code as enacted in the State of Texas. The Parties further acknowledge that Warehouse Operator utilizes an electronic warehouse management system (“WMS”). These Storage Terms incorporates the information stored in the WMS by reference.
e. Depositor acknowledges that Warehouse Operator will only issue non- negotiable warehouse receipts.
f. The parties acknowledge and agree that if there is any conflict between the terms and conditions of these Storage Terms and the terms and conditions in any other document, then the terms and conditions of these Storage Terms shall supersede and control.
a. Depositor represents and warrants that it is the owner or has lawful possession of the Goods and all right and authority to store them with Warehouse Operator and thereafter direct the release and/or delivery of the Goods. Depositor shall (i) tender any Goods for storage only during Warehouse Operator’s posted business hours for the Warehouse; (ii) tender all Goods to the Warehouse properly marked and packed for storage and handling; (iii) provide Warehouse Operator with information concerning the Goods that is accurate, complete, and sufficient to allow Warehouse Operator to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods; and (iv), if necessary, furnish at or prior to tender of the Goods for storage written instructions listing any categories of Goods, brands or sizes to be separately kept and accounted for, and the types of storage and other services requested.
b. Warehouse Operator may refuse to accept any goods for storage if the goods tendered for storage do not conform to the description contained on the Transportation Contract, defined below, or other written instructions. Before tendering Goods that require specialized handling, Depositor shall identify such goods and special handling requirements to Warehouse Operator in writing and Warehouse Operator may decline to store such goods. Depositor is solely responsible for providing complete and accurate handling and storage instructions for any Goods, including any applicable safety procedures. If Warehouse Operator accepts any Goods for storage that require special handling, then Depositor agrees to rates and charges as may be assigned and invoiced by Warehouse Operator as well as all terms and conditions of these Storage Terms. Depositor shall not tender hazardous materials or dangerous Goods.
c. For all Goods shipped to the Warehouse, Depositor shall ensure that the bill of lading or other contract of carriage (“Transportation Contract”) as well as all declarations to government regulatory agencies (i) identify Depositor as the named consignee, in care of Warehouse Operator, and (ii) do not identify Warehouse Operator as the consignee. If any Goods are shipped to the Warehouse naming Warehouse Operator as named consignee on the Transportation Contract, Depositor shall promptly notify the carrier in writing that Warehouse Operator is (i) the “in care of party” only and (ii) does not have any beneficial title or interest in the Goods. Warehouse Operator may refuse to accept any Goods tendered for storage in violation of this provision and shall not be liable for any loss or damage to, or misconsignment of, such Goods. Whether Warehouse Operator accepts or refuses goods shipped in violation of this Section 3, Depositor agrees to indemnify and hold Warehouse Operator harmless from all claims for transportation, storage, handling, and other charges relating to such goods, including surcharges, undercharges, rail demurrage, truck/intermodal detention, and other charges of any nature whatsoever. Depositor further agrees to indemnify, defend, and hold Warehouse Operator harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of Warehouse Operator as consignee.
Depositor shall indemnify, defend, and hold harmless Warehouse Operator and its members, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including undercharges, rail demurrage, truck/intermodal detention, or related charges and reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Storage Terms and the cost of pursuing any insurance providers, any claim of a third party or Warehouse Operator arising out of or occurring in connection with the Services or from Warehouse Operator’s or Depositor’s negligence, willful misconduct, or breach of these Storage Terms (each a “Warehouse Claim”). Depositor shall not enter into any settlement of a Warehouse Claim without Warehouse Operator’s or Indemnified Party’s prior written consent.
a. Depositor shall provide Warehouse Operator reasonable advance written notice and instructions (each, a “Release Order”) if it desires to order any Goods released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Warehouse Operator shall release the requested Goods to Depositor or its designee. Goods may be delivered on instructions by telephone or oral communication, but Warehouse Operator shall not be responsible for loss or error occasioned thereby.
b. Depositor shall give Warehouse Operator a reasonable time after Warehouse Operator’s receipt of Depositor’s written instructions to carry out Depositor’s instructions to release the Goods to Depositor or its designee. Warehouse Operator may without liability rely on any information contained in any Release Order or other written communication from Depositor. Depositor shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods. A Release Order providing instructions to transfer Goods on the books of Warehouse Operator to any other depositor of goods in the Warehouse will not be effective until such Release Order is delivered to and accepted by Warehouse Operator. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date for the transferee will be established effective on the date of transfer.
Warehouse Operator may move, upon reasonable advance notice to Depositor any Goods in storage from the Warehouse to any of the other storage facilities owned or leased by Warehouse Operator. Warehouse Operator may, without notice, move any or all of the Goods from one location within the Warehouse or other warehouse in which the Goods are stored to another location within the same facility.
Warehouse Operator shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Depositor’s payment of all fees, charges and expenses incurred hereunder in connection with the storage, transportation, preservation, and handling of the Goods, as well as for like charges and expenses in relation to any other goods whenever deposited with Warehouse Operator by Depositor. Warehouse Operator may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.
a. Depositor shall pay the storage charges and service fees at the rates set forth in the written price quotation in effect at the time such charges accrue or the Services are performed. All Goods are stored on a month-to-month basis. The Goods are deemed to be received on the date that the Warehouse Operator accepts care, custody, and control of the Goods, regardless of unloading date or the date warehouse receipt is issued.
b. Handling charges cover the ordinary labor involved in receiving Goods at the warehouse door, placing Goods in storage, and returning Goods to the warehouse door for pickup. Handling charges are due and payable on receipt of Goods. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by Warehouse Operator in receiving and handling damaged Goods, and additional expenses in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the Depositor. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor. When Goods are ordered out in quantities less than in which received, Warehouse Operator may include an additional charge for each order or each item of an order. The Warehouse Operator shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless Warehouse Operator has failed to exercise reasonable care. Additional charges apply to other specified services at the rates set forth in the written price quote in effect at the time such charges accrue or the services are performed, and will be separately billed as such services are performed.
c. All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor shall be responsible for all such charges, costs, and taxes; provided, that Depositor shall not be responsible for any taxes imposed on, or with respect to, Warehouse Operator’s income, revenues, gross receipts, personnel, or real or personal property.
d. If Warehouse Operator pays any lawful transportation charges on behalf of Depositor, then Depositor shall promptly reimburse Warehouse Operator for such charges, and in any case within five [5] business days after receiving an invoice for such charges from Warehouse Operator.
a. All charges for Services are due and payable within fourteen (14) days from the date of invoice; provided that charges related to an entire lot of Goods shall be due and payable at the time the entire lot of Goods is removed from Storage. Depositor shall make all payments hereunder in US dollars. Depositor shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded daily from the date due until paid in full. Depositor shall reimburse Warehouse Operator for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these Storage Terms or at law (which Warehouse Operator does not waive by the exercise of any rights hereunder), Warehouse Operator shall be entitled to suspend the release of any Goods or cease performance of any Services if Depositor fails to pay any amounts when due hereunder. In addition, Warehouse Operator reserves the right to require payment in full in cash of all amounts owed by Depositor in advance of the release of the Goods. Depositor shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Warehouse Operator, whether relating to Warehouse Operator’s breach, bankruptcy, or otherwise.
b. If Warehouse Operator in its sole, reasonable discretion determines that Depositor’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Warehouse Operator’s other rights, it may without liability or penalty (i) accelerate all amounts due hereunder and (ii) modify the payment terms, including requiring Depositor to make advance payment of all storage charges prior to shipment of Goods.
a. Warehouse Operator shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by Warehouse Operator to exercise care with regard to the Goods that a reasonably careful warehouseman would have exercised under the same circumstances. Warehouse Operator is not liable for damages which could not have been avoided by the exercise of such reasonable care.
b. Warehouse Operator shall not be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods, unless Depositor establishes such loss occurred because of Warehouse Operator’s failure to exercise reasonable care. Any presumption of conversion under applicable law shall not apply to a loss with respect to any Goods, and a claim for conversion must be established through affirmative evidence that Warehouse Operator converted the Goods to its own use. Depositor shall permit Warehouse Operator to inspect any damaged Goods for which a claim is submitted hereunder.
c. Warehouse Operator shall not be liable for any breach of this Section 10 unless: (i) Depositor gives written notice to Warehouse Operator of any claim within ten [10] business days after release of the Goods by Warehouse Operator or (ii) Depositor is notified by Warehouse Operator that loss or damage to part or all of the Goods has occurred, as the case may be, reasonably described. No lawsuit or other action may be maintained by Depositor against Warehouse Operator for loss or damage to the Goods unless a timely written claim has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of: (x) nine [9] months after the date of delivery of the Goods to Depositor or its nominee by Warehouse Operator or (y) nine [9] months after Depositor is notified by Warehouse Operator that loss or damage to part or all of the Goods has occurred.
d. IN NO EVENT SHALL WAREHOUSE OPERATOR’S LIABILITY UNDER THIS SECTION 10 EXCEED (I) THE ACTUAL COST TO REPAIR, RESTORE AND/OR REPLACE ANY DAMAGED GOODS, OR (II) FIFTY CENTS PER POUND [$.50/lb] FOR THE DAMAGED GOODS, WHICHEVER IS LESS. THE REMEDIES SET FORTH IN THIS SECTION 10 SHALL BE DEPOSITOR’S SOLE AND EXCLUSIVE REMEDY AND WAREHOUSE OPERATOR’S ENTIRE LIABILITY FOR ANY BREACH OF WAREHOUSE OPERATOR’S OBLIGATIONS SET FORTH IN THIS SECTION 10.
a. IN NO EVENT SHALL WAREHOUSE OPERATOR BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE WHATSOEVER AND HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THESE STORAGE TERMS , WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY DEPOSITOR OR COULD HAVE BEEN REASONABLY FORESEEN BY PERSON OR ENTITY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL WAREHOUSE OPERATOR’S AGGREGATE LIABILITY UNDER THESE STORAGE TERMS INCLUDING, BUT NOT LIMITED TO, WAREHOUSE OPERATOR’S LIABILITY UNDER SECTION 10 OF THESE STORAGE TERMS, EXCEED THE TOTAL OF THE AMOUNTS PAID TO WAREHOUSE OPERATOR FOR THE SERVICES RENDERED HEREUNDER.
b. Notwithstanding the foregoing, Warehouse Operator’s limit of liability may be increased upon the Depositor’s declaration of higher value, the Warehouse Operator’s acceptance thereof, and the payment by Depositor of an additional charge. Depositor acknowledges and agrees that the foregoing is not insurance, and that if Depositor desires that the Goods be insured, that Depositor shall obtain such insurance through its own insurance agent and/or carrier.
c. In the case of loss or damage to Goods for which Warehouse Operator is not liable, Depositor shall be responsible for all charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.
The Goods are not insured by Warehouse Operator for the benefit of Depositor against fire or other casualty. Warehouse Operator will not be required to maintain a watchman or a sprinkler system, and Depositor acknowledges that Warehouse Operator’s failure to do so will not constitute negligence under Section 10(a) or otherwise.
a. In addition to any remedies that may be provided under these Storage Terms, Warehouse Operator may terminate any SOW and/or these Storage Terms with immediate effect upon written notice to Depositor, if: (i) Depositor fails to pay any amount when due under these Storage Terms; (ii) Depositor has not otherwise performed or complied with its obligations under any of the provisions contained in these Storage Terms, in whole or in part; (iii) Depositor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; (iv) the Goods are a hazard to other property within the Warehouse or to the Warehouse itself or to persons as a result of the quality or condition of the Goods of which Warehouse Operator had no notice at the time of deposit; or (v) the Goods are about to deteriorate or decline in value to less than the amount of the warehouse lien set forth in Section 7 before the end of the next succeeding storage month.
b. These Storage Terms may be terminated by either Party upon 30 days’ prior written notice with or without any cause or reason being given or required.
c. If these Storage Terms or an SOW are terminated for any reason, Depositor shall promptly arrange the removal of all Goods from the Warehouse, subject to payment of all outstanding fees and charges due hereunder. If Depositor does not promptly remove such Goods, Warehouse Operator may without liability remove the Goods and sell the Goods at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Goods (to the last known place of business of the person to be notified) in the manner provided by law. If Warehouse Operator, after a reasonable effort, is unable to sell the goods, it may dispose of them without liability in any lawful manner.
No waiver by Warehouse Operator of any of the provisions of these Storage Terms are effective unless explicitly set forth in writing and signed by Warehouse Operator. No failure by Warehouse Operator to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Storage Terms operates, or may be construed, as a waiver thereof. No single or partial exercise by Warehouse Operator of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
a. Warehouse Operator shall not be liable or responsible to Depositor, nor be deemed to have defaulted or breached these Storage Terms, for any failure or delay in fulfilling or performing any term of these Storage Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Warehouse Operator including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage.
b. If Warehouse Operator has been unable to remove/deliver the Goods due to any reason specified in this Section 15, such Goods shall be subject to storage charges until such Goods are actually removed/delivered.
Except as specified in the next sentence, these Storage Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these terms. Notwithstanding the foregoing, all limitations upon, and exceptions and defenses to, liability granted to Warehouse Operator shall be automatically extended to all parent, subsidiary, and affiliated entities and all subcontractors of Warehouse Operator and the owners, directors, officers, employees, and agents of each of the foregoing. Depositor agrees that Warehouse Operator’s members, managers, employees, agents, affiliates, successors, and permitted assigns are third-party beneficiaries of the indemnification provision, Section 4 of these Storage Terms.
Both Parties acknowledge that in the course of rendering the Services, Warehouse Operator or Depositor may disclose to the other, or one Party may come into possession of information as a result of its relationship with the other under these Storage Terms, respecting such other Party’s business affairs or systems. Each party acknowledges that such information is confidential and proprietary (“Confidential Information”), and covenants and agrees to keep such information in the strictest confidence, and to take all necessary steps to assure that its employees will keep in strictest confidence all information and not disclose any such information to any third party without the prior written consent of either Party, as appropriate; provided, however, such restriction shall not apply to information which is available to the public or required to be disclosed pursuant to court order or otherwise as required by law. Confidential Information includes, without limitation, any trade secrets, technical data, designs, patterns, formula, process, methods, computer program, source code, object code, or other computer programing code, manuals, product specifications, or plans for new, revised, enhanced, modified or existing products; operational and functional features and limitations of the Parties’ software or other products; any business, marketing, financial, pricing or other sales-related data; information regarding the present or future business products of the Parties; information regarding employees and vendors including contact information, organizational charts, information skill sets, technical and business knowledge, and compensation; and any information concerning the particular needs of clients or customers and their buying patterns, price sensitivities, key decision makers (and the contact information for such individuals), product needs, product specifications, requests for proposals and the responses thereto, and any other proprietary information and know-how of the Party. This covenant shall survive the termination or expiration of the Storage Terms.
All matters arising out of or relating to these Storage Terms are governed by and construed in accordance with the internal laws of the state where the Goods are stored, giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or relating to these Storage Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Texas, in each case located in the City of Houston, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Each Party acknowledges and agrees that any controversy that may arise under these Storage Terms, including exhibits and other attachments to these Storage Terms, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Storage Terms, including any exhibits and other attachments to these Storage Terms, and the transactions contemplated hereby.
Subject to the limitations and other provisions of these Storage Terms : (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of these Storage Terms; and (b) 4, 8, 9, 17, and 18 of these Storage Terms, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Storage Terms.
All notices, requests, consents, claims, demands, waivers, and other communications under these Storage Terms must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with these Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Storage Terms, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
Notice to Warehouse Operator: Speedy Freight, LLC
2450 Lakeside PKWY STE 150 – 215,
Flower Mound, TX 75022
Notice to Depositor: As addressed in SOW
If any term or provision of these Storage Terms are invalid, illegal, or unenforceable in any specific situation or jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Storage Terms or invalidate or render unenforceable these Storage Terms in any other situation or jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify these Storage Terms to give effect to the original intent of the Parties as closely as possible so that the transactions contemplated hereby will be consummated as originally contemplated to the greatest extent possible.
Warehouse Operator may amend these Storage Terms at any time with notice to Depositor. Depositor’s continued utilization of Services shall be deemed acceptance of the amendment.
All rights and remedies provided in these Storage Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other Storage Terms between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Depositor’s rights under Section 9 are Depositor’s exclusive remedies for the events specified therein.
These Storage Terms are binding on and inures to the benefit of the Parties to these Storage Terms and their respective permitted successors and permitted assigns.
The relationship between the Parties is that of independent contractors. Nothing contained in these Storage Terms shall be construed as creating any agency, partnership, franchise, business trust, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from these Storage Terms.
