Freight Services Terms and Conditions (“Freight Terms”)
1. SCOPE AND FIELD OF APPLICATION
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.
4. INSPECTION AND CLAIMS
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. LIMITATION OF LIABILITY.
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.
8. INDEPENDENT CONTRACTOR
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. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY
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.
10. FORCE MAJEURE
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.
11. GOVERNING LAW AND VENUE
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.
13. NO THIRD-PARTIES
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.