FREIGHT SERVICES TERMS AND CONDITIONS
DM Trans, LLC dba Arrive Logistics with MC #787104 (“Arrive”) and Forager Logistics, LLC with MC #160949 (“Forager”) are in the business of arranging cross border transportation of property by third-party motor carriers and hold authority as set forth above from the Federal Motor Carrier Safety Administration to engage in operations as a transportation broker of general commodities (except Household Goods) in interstate or foreign commerce. Arrive or Forager, whichever is providing brokerage services to you under these Terms and Conditions, is herein referred to as “Broker”. You (“You” or “Shipper”, and together with Broker, the “Parties”) understand and acknowledge that (1) Broker is not a motor carrier, (2) Broker is a broker who arranges for the transportation of freight by third-party motor carriers and (3) Broker intends to engage and contract with one or more Carriers (as defined below) for purposes of satisfying obligations under these Terms and Conditions.
By tendering freight to Broker, You agree to be bound by these Terms and Conditions.
You and Broker enter into these Terms and Conditions in accordance with 49 U.S.C. § 14101(b)(1) and expressly waive any and all rights and remedies that each may have under 49 U.S.C. § 13101 through § 14914 that are contrary to the specific provisions of these Terms and Conditions.
1. SERVICE. Broker agrees to arrange for transportation of your freight (“Goods”) by third-party motor carriers (“Carrier(s)”) in compliance with all federal, state and local laws and regulations. Broker’s responsibility is limited to arranging for, but not actually performing, transportation of Goods.
2. NO EXCLUSIVITY. You are not restricted from tendering freight to other brokers, freight forwarders, third-party logistics providers, or directly to motor carriers. Broker is not restricted from arranging transportation of freight for other parties nor is Broker obligated to accept any particular Goods or freight tendered by You.
3. YOUR RESPONSIBILITIES.
A. Compliance with Food Safety Laws. If applicable, You must comply and Broker will contractually require the Carrier to comply, with all Applicable Law (as defined below) governing the safe and secure transportation of food products that will be ultimately consumed by humans or animals, including, but not limited to, the Food Safety Modernization Act (21 U.S.C. § 2201, et. seq.), the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.), the Sanitary Food Transportation Act (49 U.S.C. 5701, et seq.), the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900, et seq.) and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations.
B. Shipper Written Instructions.
i. You must provide necessary shipping instructions and properly identify all Goods in the bill of lading or other shipping instructions. You will not tender any restricted commodities including, but not limited to, hazardous materials and waste, oversize or overweight shipments, coiled or rolled products, or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation.
ii. At the time of booking, and prior to loading the Goods, You must further specify in the booking request and on the face of the bill of lading all instructions to be followed by the Carrier to maintain the safety of the Goods, including, without limitation, all temperature control requirements and temperature control documentation requirements, including an operating temperature for the transportation and, when necessary, the pre-cooling phase, all sanitation requirements and sanitation documentation requirements for the Goods, including those for the Carrier’s vehicle and transportation equipment, any design specifications and cleaning procedures (“Written Instructions”). Broker will assist You in providing any Written Instructions to the Carrier transporting your Goods.
C. Cargo Loading and Securement.
i. You are responsible for ensuring that Goods are properly and safely packaged and loaded. If Carrier is not allowed on the dock during loading, You are responsible for ensuring that Goods are supported, blocked, braced, and secured. If You are loading the Goods into the motor vehicles, You must inspect the vehicle or other transportation equipment provided by the Carrier, to ensure it meets the requirements specified in the Written Instructions and is in an appropriate sanitary condition for transporting the Goods.
ii. You must reject any equipment that is not in apparent suitable condition to protect and preserve the Goods during transportation. Vehicles and other transportation equipment used to transport the Goods will be deemed acceptable to You upon loading. Your failure to fulfill the obligations under this section will be considered an act or default of the Shipper, and a defense to any cargo claim resulting from the condition of the trailer.
D. Mitigating Damages. None of the provisions in these Terms and Conditions in any way limits your obligation to mitigate damages, including by salvaging all portions of a shipment for which there is a secondary market.
4. BROKER’S RESPONSIBILITIES.
A. Broker will select Carriers, using the following criteria:
i. Verifying the Carrier’s operating authority as required by local, provincial, state, and/or federal laws, regulations, ordinances, and rules governing the transportation of Goods (“Applicable Law”).
ii. For United States Carriers, verifying the Carrier’s insurance coverage, with coverage not less than:
For Mexican and/or Canadian Carriers, verifying that the Carrier has the minimum insurance coverage required by Applicable Law.
B. Broker will require by written contract, that each Carrier providing transportation services agree:
i. That it is duly and legally licensed under Applicable Law to provide transportation services, that it does not have an unsatisfactory safety rating issued by the United States Department of Transportation or any state or provincial authority with jurisdiction over its operations, as applicable, and that it will comply with all Applicable Law,
ii. That it is performing services pursuant to contract, and
iii. That it will obtain a receipt showing the kind and quantity of product delivered to the consignee of each shipment at the destination.
5. RECEIPTS AND BILLS OF LADING. If requested by You, Broker agrees to provide You with proof of acceptance and delivery of shipments in the form of a signed bill of lading or proof of delivery electronically by fax or email. Your insertion of Broker’s name on the bill of lading will be for your convenience only and will not change Broker’s status as a property broker. The terms and conditions of any freight documentation used by You or Carrier will not supplement, alter, or modify these Terms and Conditions.
6. PAYMENTS. Broker will invoice You for its services in accordance with the rates, charges and provisions set forth herein, and any written supplements or revisions that are mutually agreed to between the Parties in writing. If rates are negotiated between the Parties and not otherwise confirmed in writing, such rates will be considered “written,” and will be binding, upon Broker’s invoice to You and your payment to Broker. You agree to pay Broker’s invoice within 30 days of invoice date without deduction or setoff. Payment of the freight charges to Broker will relieve You, the shipper, consignee or other responsible party of any liability to Carrier for non-payment of its freight charges. Broker will indemnify You from and against any claim for freight payment brought by Carrier against You if You have paid Broker and Broker has failed to pay Carrier.
A. Cargo Claims.Broker is a broker, not a motor carrier or freight forwarder, and has no liability for loss of or damage to Goods. Subject to Sections 12 and 13 hereof, Broker shall require Carrier to assume the liability of a motor carrier (i.e. Carmack Amendment liability for United States Carriers and liability under Applicable Law for other Carriers) for loss of or damage to the Goods while in transit, subject to a maximum liability of US$100,000 per shipment for United States Carriers and any applicable statutory minimum for other Carriers unless otherwise agreed to in writing between the Parties. You must file claims for cargo loss or damage with Broker or Carrier within nine (9) months from the delivery date or, in the event of non-delivery, the scheduled delivery date. You must file any civil action against Carrier in a court of law within 2 years from the date Carrier or Broker provides written notice to You that any part of the claim is disallowed. Upon request, Broker will assist You in the filing and/or processing of claims with Carrier (contact email@example.com). If payment of a claim is made by Broker to You, You automatically assign your right and interest in the claim to Broker. In no event will Broker or Carrier be liable to You or any other party for special, incidental, or consequential damages for any reason whatsoever.
B. All Other Claims. The Parties shall notify each other of all known material details of any claims within 60 days of receiving notice of any claims other than cargo loss or damage claims, and shall update each other promptly thereafter as more information becomes available. Civil actions must be commenced within two (2) years from the date either Party provides written notice to the other Party of such a claim.
8. INSURANCE. Broker agrees to procure and maintain at its own expense, at all times during the term of these Terms and Conditions, the following insurance coverage amounts:
A. General Liability: $1,000,000
B. Cargo Insurance: $100,000
C. Workers Compensation: Statutory Limits
9. SURETY BOND. Broker shall maintain a surety bond or trust fund agreement as required by the FMCSA in the amount of at least $75,000 or as otherwise required by the FMCSA and furnish You with proof upon request.
10. HAZARDOUS MATERIALS. You must comply with all Applicable Law relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and § 397 et seq. or analogous definitions of hazardous materials and wastes under Mexican law and dangerous goods under Canadian law to the extent that any shipments constitute hazardous materials/dangerous goods. You are obligated to inform Broker immediately if any such shipments constitute hazardous materials/dangerous goods. You shall defend, indemnify and hold Broker harmless from any penalties or liability of any kind, including reasonable attorney fees, arising directly out of your failure to comply with Applicable Law relating to hazardous materials/dangerous goods.
11. INDEMNIFICATION. You must defend, indemnify and hold Broker, Broker’s employees and agents and Carriers harmless against any losses caused by or resulting from (i) your or your employees’ or agents’ negligence or intentional misconduct, (ii) your breach of these Terms and Conditions, or (iii) your or your employees’ or agents’ violation of Applicable Law. You must also indemnify Broker from any attempts to recover from Broker by your insurance carrier or any other party. The obligation to defend includes payment of all reasonable costs of defense, including attorney fees, as they accrue.
12. LESS THAN TRUCKLOAD (LTL) FREIGHT. Where Broker provides LTL services, the following additional terms and conditions apply and supersede and control over any conflicting provisions of these Terms and Conditions.
Tariff Applicability.You acknowledge and agree that LTL shipments will be subject to those Carrier tariff terms applicable based upon the nature of services requested and the Goods tendered including, without limitation, those tariff provisions required to rate shipments or adjudicate Carrier liability for the same.
Cargo Claims.If less than a full truckload of Goods is being transported, Carrier liability for loss or damage to Goods shall be subject to the lowest of $100,000 per shipment, $10 per pound times the weight of the Goods lost or damaged, or the lowest liability provided in the National Motor Freight Classification.
13. MEXICO LOSS AND DAMAGE. Broker and Carrier’s liability for cargo loss or damage is limited to loss or damage occurring within the United States and Canada. Broker and Carrier shall not be liable for cargo loss, damage or delay occurring in Mexico. Loss or damage to cargo being shipped to or from Mexico shall be presumed to have occurred within Mexico absent clear evidence to the contrary. Transportation or billing arrangements made by Broker or Carrier regarding freight transportation within Mexico (including, but not limited to arranging for Mexican carriers, quoting through rates, billing and remitting to Mexican carriers, and or issuing through bills of lading for transportation into or out of Mexico) are provided solely as a convenience for You and shall not create or impose any liability upon Broker or Carrier for any loss or damage to cargo in Mexico. This limitation of liability shall not impair Your rights against any Mexican motor carrier for cargo loss or damage. The Parties waive any conflicting right or remedy available under 49 USC 14706, but such waiver shall only apply to the extent of any express conflict with the limitation of liability of this paragraph. Further, You agree that Your cargo is not insured and You accept that You alone shall be responsible for securing any first-party cargo insurance at Your sole cost and expense to protect against loss or damage occurring on movements to or from Mexico.
14. CFDI AND COMPLEMENT BILL OF LADING. With respect to any shipments traveling in Mexico, You are responsible for the classification of the Goods according to the parameters published by the Mexican Tax Authority. If any change in the classification of the Goods is made or You need to classify additional Goods, You must inform Broker at least 3 days prior to the shipment of those Goods. You acknowledge that any change of route, destination, type or class of Goods, as well as their quantity and/or weight, operator and/or vehicle will require a new Complement Bill of Lading. You must provide the new information to Broker sufficiently in advance of shipment and You shall bear the cost of reissuing any Bill of Lading. You acknowledge that the Complement Bill of Lading and CFDIs will be issued by Carriers based on the information provided by You, and Broker shall not be responsible for the accuracy of such information. Broker will also not be responsible for any delay or any fine, loss, cost, claim, damage, or other liability (“Losses”) attributable to You providing incomplete, erroneous or inaccurate information or Your failure to provide such information in a timely manner. You will indemnify, defend, and hold Broker and the Carrier harmless from any Losses arising from any failures, delay, error, omission or inaccuracy related to the information provided by You.
15. ASSIGNMENT/MODIFICATIONS OF AGREEMENT. Neither Party may assign or transfer these Terms and Conditions, in whole or in part, without the prior written consent of the other Party.
16. SEVERABILITY/SURVIVABILITY. In the event that the operation of any portion of these Terms and Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of these Terms and Conditions for any reason.
17. INDEPENDENT CONTRACTOR. It is understood between Broker and You that Broker is not an agent for Carrier or You and shall remain at all times an independent contractor. You do not exercise or retain any control or supervision over Broker, its operations, employees, or Carrier. Broker does not exercise or retain any control or supervision over Carrier, its operations, employees or you.
18. NONWAIVER. Failure of either Party to insist upon performance of any of the terms, conditions or provisions of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of these Terms and Conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
19. NOTICES. Unless the Parties notify each other in writing of a change of address, any and all notices required or permitted to be given under these Terms and Conditions shall be made in writing and shall be delivered via email with confirmed receipt, and shall be effective when so delivered.
20. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by fire, flood, or other natural disaster, war, pandemic, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of You or Broker, provided that the Party so prevented uses commercially reasonable efforts to perform under these Terms and Conditions and provided further, that such Party provide reasonable notice to the other Party of such inability to perform. Performance requirements are extended by the amount of the delay except for payment obligations.
21. CHOICE OF LAW AND VENUE. All questions concerning the construction, interpretation, validity and enforceability of these Terms and Conditions, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the federal laws regarding transportation, where applicable, and otherwise by the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. The Parties agree to jurisdiction and venue in a United States Federal District Court in Texas, or if federal jurisdiction is not available, then in a State Court located in Texas.
22. CONFIDENTIALITY. Other than as required to comply with the law or legal process requiring disclosure, the Parties agree to the following:
A. The Parties shall not publish, use or disclose the contents or existence of these Terms and Conditions except as necessary to conduct their operations pursuant to these Terms and Conditions. Broker will require Carrier and/or other brokers to comply with this confidentiality clause.
B. In addition to Confidential Information protected by law, statutory or otherwise, the Parties agree that all of their financial information and that of their customers, including but not limited to freight and brokerage rates, amounts received for brokerage services, amounts of freight charges collected, freight volume requirements, as well as personal customer information, customer shipping or other logistics requirements shared or learned between the Parties and their customers, shall be treated as confidential, and shall not be disclosed or used for any reason without prior written consent. You specifically waive any rights You may have under 49 CFR Section 371.3.
C. In the event of a violation of this Confidentiality paragraph, the Parties agree that the remedy at law, including monetary damages, may be inadequate and that the Parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating Party from further violation of these Terms and Conditions in which case the non-prevailing Party shall be liable for all costs and expenses incurred, including but not limited to reasonable attorney’s fees.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement intended by and between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.