Terms and Conditions
Freight Forwarder Terms & Conditions
- In tendering this shipment, the shipper agrees to these Conditions of Contract of Carriage, which no agent or employee of the parties may alter and that this shipping document is non-negotiable and has been prepared by the shipper. The shipper certifies and represents to Forwarder that the information inserted on the face of these shipping documents completed and accurate. It is agreed among the parties involved that the conditions of contract of carriage for this shipment are governed by Forwarder’s tariffs, available for inspection at Forwarder’s offices, and which are hereby incorporated into this contract, and a copy of which will be supplied upon request. NOTE: “Shipper’’ on this contract means the party from whom the shipment is received, the party who requested the shipment be transported by Forwarder, and party having an interest in the shipment, and any party who acts as an agent for any of the above. Except to the extent of any written contract between shipper and Forwarder, this shipping document supersedes and negates any claimed, alleged or asserted oral or written contract, promise, representation or understanding between the parties with respect to this shipment
- In the event that shipment is tendered to Forwarder on a straight bill of lading or any other shipping document, Forwarder’s rules and regulations will supersede any rules and regulations contained on the shipping document on which the freight was tendered
- Shipper warrants that each package in this shipment is properly and completely described on this shipping document, is properly marked and addressed, is packaged adequately to protect the enclosed goods to insure sale transportation with ordinary care in handling, and except as noted, is in good order and condition. For articles shipped in unenclosed containers, Forwarder shall not be liable for damage/loss unless mishandling and/or loss is evident and is so noted on the delivery receipt at time of deliveryNOTE: A Shipment in which delivery is made in exchange for a clear delivery receipt shall be prime fascia evidence of having received ordinary care in handling.
- At time of delivery, the consignee must note on the delivery receipt any exceptions to the shipping containers that would indicate a discrepancy (shortage in the shipment or damage to the containers). The consignee may not inspect the contents of the shipping containers until the consignee signs for the shipment on the delivery receipt. NOTE: A shipment in which delivery is made in exchange for a clear delivery receipt shall be prima fascia evidence of having received ordinary care in handling
- Forwarder, SHALL NOT BE LIABLE IN ANY EVENT FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INCOME, INTEREST, UTILITY OR LOSS OF MARKET,WHETHER OR NOT Forwarder HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED
- Overcharge claims must be received in writing by Forwarder within one year after date of acceptance of the shipment by Forwarder. Either written or electronic notification on all other claims (except concealed loss/damage claims) must be received by Forwarder within 7 days after Forwarder delivered the shipment. Notification of concealed loss/damage claims (i.e., claims for loss or damage discovered by the consignee after delivery and after a clear receipt has been given) must be received in writing or electronic communication by Forwarder within 5 days after delivery, or for perishables verbally within 48 hours. For damage claims and concealed loss claims, Forwarder must be allowed the privilege to make inspection of the shipment and the container(s) and packaging material(s) at place of delivery. Claims must be perfected within 180 days after delivery or date delivery was intended. No claims will be entertained until all transportation charges have been paid. Claims may not be deducted from transportation charges and no claims may be deducted from any charges owed Forwarder. Legal action to enforce a claim must be brought within one year after the claim has been denied in writing by Forwarder, in whole or in part.
- Forwarder’s liability, in the absence of a higher declared value for carriage, is limited to a minimum of $50.00 per shipment or $0.50 per pound, per piece, of cargo lost, damaged, mis-delivered or otherwise adversely affected, but in no event shall exceed the actual invoice value of the goods. This limitation is subject to provisions as published in Forwarder’s governing tariffs in effect at the time of this shipment. Declared values for carriage in excess of $0.50 per pound, per piece, shall be subject to an excess valuation charge
- Unless each piece of the shipment has a declared value stated and is specifically identified on the Forwarder’s shipping document at the time of the shipment and is so identified on the delivery receipt as being lost, damaged, destroyed, or otherwise affected at time of delivery, Forwarder shall be liable subject to tariff provisions in effect at the time of the shipment for the "average declared value’’ of the shipment. The "average declared value’’ of the shipment shall be determined by first dividing the total declared value of the shipment by the total weight of the shipment. This figure, multiplied by the packaged weight of the piece(s) adversely affected, shall then establish the amount of Forwarder’s liability. The total declared value amount must be inserted in the DECLARED VALUE box on the face of this shipping document. Forwarder’s liability shall in no event exceed the actual invoice value of the goods adversely affected.
- In the event of the failure or inability of the consignee to take delivery of the shipment, Forwarder will notify shipper in writing at the address shown on the shipping document and request disposition instructions. If the shipper fails to provide disposition instructions within 30 days after the date of Forwarder’s notice. Forwarder will return shipment to the shipper at the shipper’s expense. If the shipper fails to accept delivery of a shipment thus returned. Forwarder may, upon 30 days written notice to the shipper, dispose of the shipment at public or private sale and pay itself out of the proceeds to satisfy the transportation charges owing on the shipment. Any sums collected by Forwarder in excess of such transportation charges will be paid to the shipper. No sale or disposal pursuant to this rule will discharge any liability or lien to any greater extent from the proceeds thereof. The shipper and the consignee shall remain liable, jointly and severally, for any deficiency.
- Forwarder shall not be liable for loss, damage, delay or monetary loss of any type caused by : Acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical failures; aircraft failures; civil commotions; acts of omissions of customers or quarantine officials; the nature of the freight or any defects thereof; public enemy’s; hazards incident to a state of war; acts of terrorism; and by acts, defaults or omissions of the shipper or consignee for failure to observe the terms and conditions of the contract of carriage contained in this shipping document, including but not limited to improper packaging, marking, incomplete/inaccurate shipping instructions and the rules relating to freight not acceptable for transportation of freight acceptable only under certain conditions outlined below.
- Forwarder’s liability for aggregate losses at any one time at any one place is limited to $1,000,000.00. For shipments having declared values over $25,000. Forwarder must be given advance notice prior to pick up.
- Determination of Charges. Such charges may include transportation, fuel and other applicable accessorial charges, all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. ExactDirect reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer, or an inaccurate quote was provided by the selected carrier(s) (ii) if additional services by the carrier(s) were required, or (iii) if the Customer authorized the carrier(s) to perform the pickup, transportation and delivery functions other than contemplated by the BOL. Rates and charges for this shipment will be based on actual or dimensional weight, whichever is greater.
- If this is an international shipment, a) all rules relating to liability as established by the Warsaw Convention shall apply, b) except as otherwise provided in Forwarder’s tariffs or conditions of carriage, in carriage to which the Warsaw Convention does not apply.
- Unless inserted otherwise on the face of this shipping document, the C.O.D. amount of the shipment shall be deemed to be the declared value for carriage amount. This declared value for carriage amount in excess of $0.50 per pound, per piece, shall be subject to an excess valuation charge.
- This shipment is subject to inspection by Forwarder; however, Forwarder is not obligated to perform such inspection.
- The shipper and the consignee shall be liable jointly and severally for all unpaid charges payable on account if this shipment pursuant to this contract and to pay or indemnify Forwarder for claims, fines, penalties, damages, costs (storage, handling, reconsignment, return of freight to shipper, etc.,) or other sums which may be incurred by Forwarder by reason of any violation of this contract or any other default of the shipper or consignee or their agents. Forwarder shall have a lien on any goods shipped for failure to pay charges payable on account of this shipment pursuant to this contract. Forwarder may refuse to surrender possession of the goods until such charges are paid. Should Forwarder bring legal action for the enforcement of this contract or collection of any sums due and payable under this contract. Forwarder shall be entitled to reasonable attorney fees and costs.
- All invoices not paid within 30 days of invoice date will be subject to a charge of 1 1/2% per month.
- Shipper and consignee shall hold Forwarder and its agents harmless for loss/damage/delay or any monetary losses which are a result of auxiliary services including but not limited to local cartage, crating, uncrating, packing, and unpacking which are requested by the shipper or consignee and arranged by Forwarder as a customer service unless such services are actually performed by Forwarder of its agents. Such limitation of liability shall extend to the selection by Forwarder of the providers of the auxiliary services. Auxiliary services are those which are performed prior to subsequent to transportation and which may be billed directly by the provided of the services or by Forwarder. Providers of auxiliary services are contractors for the shipper or consignee and are not agents for Forwarder. Local cartage is the movement of unpackaged/uncrated freight. NOTE: Under no circumstances will the liability of Forwarder for any monetary loss which is a result of any auxiliary services performed by Forwarder or its agents be greater than the liability contained in this contract.
- Should Forwarder successfully defend itself or any legal actions brought by any party with an interest in this shipment, Forwarder shall be entitled to reasonable attorney fees and costs. NOTE: In lieu of legal actions, any disputed claim not greater than $15,000.00 is to be settled through binding arbitration submitted to the Transportation Arbitration Board or the American Arbitration Association under its cargo claim arbitration program. An alternative arbitrator is to be selected by Forwarder if the claim is unacceptable for arbitration by both the above arbitrators.
- Shipments are subject to security controls by cameras and, where appropriate, by government agencies. Copies of shipping documents will be returned for two years.
- Insurance coverage is based on the Forwarder’s open insurance policy in effect on the date of the shipment. Failure to properly complete the INSURANCE OPTION on the face of this shipping document shall void the coverage this option affords. Failure to insert at least full invoice value of the shipment shall reduce any insurance payment proportionately by the applicable percentage that the shipment was so under-insured. There are exceptions and/or special insuring conditions to the insurance option. Contact Forwarder for details.
Freight Broker Agreement / 3PL Terms & Conditions
The Customer (“Customer”) and ExactDirect LLC, a Georgia corporation (“ExactDirect”), hereby agrees as follows:
- Parties. Customer is a Shipper and/or Consignee of certain goods it wishes to have transported. ExactDirect is a Broker/3PL. ExactDirect is not acting as either a Motor Carrier, or a Common Carrier within the meaning of USC Title 49. ExactDirect contracts with various freight carriers (“Carriers”) on behalf of the Customer for the purpose of obtaining discounted rates for transportation. ExactDirect reserves the right, in its sole discretion, to refuse any shipment at any time. ExactDirect and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement.
- Tariffs. In the event of a conflict in the terms of this Agreement and an applicable Tariff (“Tariff”) then in effect with a selected carrier, in every instance the Tariff shall take precedence and control in the interpretation of the rights and obligations of the Parties. If no conflict exists with respect to the Carrier’s Tariff, this Agreement shall control. Customer is responsible for requesting and reviewing Tariffs in effect with a designated Carrier. ExactDirect is not obligated to provide copies of Tariffs, or any information contained therein, to Customer.
- Bills of Lading. The Customer shall use ExactDirfect’s system-generated Bill of Lading (“BOL”). The Customer shall cause to be completed all the appropriate documents required for carriage, in light of the services being sought, and the pick up or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, the Customer hereby instructs ExactDirect, where permitted by law, and ExactDirect may at its option, but without obligation, complete, correct or replace the documents for them at the expense of the Customer. If a substitute form of BOL is needed to complete delivery of this shipment for any reason and ExactDirect completes that document, the terms of the completed BOL will govern and ExactDirect will be exonerated from all liability for undertaking such actions on behalf of the Customer including specifically liability for, in whole or in part, negligence by ExactDirect. All Bills of Lading are non-negotiable and have been prepared by the Customer or by ExactDirect on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed, conclusively, to have been prepared by the Customer. The Customer is required to provide the BOL to the Carrier designated by ExactDirect. Any failure to provide the proper BOL to the designated Carrier shall render the entire transaction void ab initio. ExactDirect shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by ExactDirect, or (iii) the use of any bill of lading not authorized or issued by ExactDirect.
- Customer Representations and Warranties to ExactDirect. The Customer represents and warrants that at all times during the term of this Agreement, it will be in compliance with all applicable laws, rules, and regulations (“Laws”) including applicable Laws relating to customs, import and export required by country to, from, through or over which the shipment may be carried. The Customer agrees to furnish such information and complete and attach to the BOL such documents as are necessary to comply with such Laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that he, she or it has the right to act on behalf of and legally bind the Customer. ExactDirect assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall indemnify and hold ExactDirect harmless for any claims or damages resulting from violation of this paragraph, including attorney’s fees and costs.
- Payment. All charges are payable in US Dollars and are due and payable thirty (30) days from the date of billing (net/30). ExactDirect Corporate Policy mandates that in any event the Customer does not keep it’s account within the stated net thirty (30) day terms via ACH to ExactDirect, ExactDirect will immediately begin invoicing and collecting directly from the Shipper and / or the Consignee listed on the Bill of Lading. Past due payments shall be subject to an additional charge at the rate of 1-1/2% per month of the average outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less. All funds received by ExactDirect will be applied to the oldest (based on pick-up date) invoiced BOL that is outstanding. Overpayments do not accrue interest. In the event this Agreement is placed by ExactDirect in the hands of an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all collection costs including reasonable attorney’s fees, (including such fees and costs incurred in the successful defense of any crossclaim or counterclaim brought against ExactDirect).
- Credit Approval. Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of ExactDirect. The Customer grants ExactDirect the right to perform such credit and background searches as ExactDirect deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account of such Customer’s shipment. The Customer authorizes ExactDirect to charge the Customer’s credit card or bank account for any charges.
- Determination of Charges. The Customer shall be liable for all charges payable on account of such Customer’s shipment. THE FINAL INVOICED CHARGES MAY VARY FROM THE QUOTED AMOUNTS BASED ON THE INDIVIDUAL CARRIER COST NOT REFLECTED AT THE TIME OF BOOKING. Such charges may include transportation, fuel and other applicable accessorial charges, all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, fines and taxes. ExactDirect reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer, or or an inaccurate quote was provided by the selected carrier or (ii) if additional services by the carrier were required, or (iii) if the Customer authorized the carrier to perform the pick up, transportation and delivery functions other than contemplated by the BOL. Any disputes by customer of any invoice issued by ExactDirect shall be made in writing, specifically indicating the nature of the dispute and received by exactDirect at their offices within 30 days from the date of the invoice. In the event ExactDirect does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid. Customer authorizes ExactDirect to advise third parties of asserted liens and to hold possession of any shipment against which a lien is asserted.
- Lien. ExactDirect shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer.
- Claims and Limitations of Liability. Notification of potetntial claims on ground shipments (except concealed loss or damage) must be received by ExactDirect in either written or electronic communication within seven (7) days of the date of delivery, or in the event of total loss of the shipment, the date the shipment should have been delivered. Notice of concealed loss/damage must be received in writing or electronic communication within five (5) days after delivery. ExactDirect is not liable for any loss, damage, mis-delivery or non-delivery caused by: (i) the act, default or omission of a Carrier, the Customer or any other party who claims interest in the shipment, or (ii) the nature of the shipment or any defect therein, or (iii) a violation by the Customer of any provision of this Agreement, the BOL, the carrier’s Tariff, including, improper or insufficient packing, securing, marking or addressing, or (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions, or (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment, or (vi) the acts or omissions of any person other than employees of ExactDirect; or (vii) the selection of carrier for a particular shipment. Customer acknowledges that in order to provide competitive rates for the services, that the parties have agreed as a material term of this Agreement that the burden of any loss or damage incurred as a result of ExactDirect’s alleged liability has been shifted to the Customer, and that in any event the maximum amount of ExactDirect’s liability is limited to the fees that ExactDirect has earned with respect to the subject shipment. Customer specifically acknowledges that ExactDirect shall have no liability for negligent acts or omissions of its employees except to the extent such actions or omissions constituted gross negligence.
- Insurance. The Customer will look solely to insurance provided by the carrier for damage to goods in transit. Each carrier’s governing Tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the Tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately to ExactDirect to help ensure timely resolution. ExactDirect will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore. Where a damage claim is submitted with carrier on behalf of Customer, ExactDirect has a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. ExactDirect may have optional Shippers Interest Contingent Cargo Liability Insurance (“Third Party Insurance”) available for purchase by the Customer. ExactDirect has no responsibility or liability with respect to the issuance or denial of Third Party Insurance, or in the payment or denial of claims.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EXACTDIRECT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THIS WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. EXACTDIRECT CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL EXACTDIRECT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE.
- Rates. “Less than Load” Rates (“LTL”) rates are based on the freight class as determined by the National Motor Freight Classification (“NMFC”) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload rates (“TL”) rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are state to state and mileage based. Additional fees may apply for charges including, Tractor Detention, Trailer Detention, and Driver Assistance. Customer must tender this load to carrier at the agreed upon rate, or pay a $ 150.00 “truck ordered, not used” penalty. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit days may apply. Van Line rates are driven by state to state/mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on equipment type, state to state/mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
- Guaranteed Services. ExactDirect will provide LTL Guaranteed Services for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the individual carrier. The Customer is liable for all charges related to the shipment. In the event of a carrier’s failure to comply with the guaranteed service requested, the Customer shall have fourteen (14) days from the actual delivery date of shipment to deliver a written claim request to ExactDirect. If ExactDirect does not timely receive a claim request within said fourteen (14) days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will automatically be considered invalid and denied. In the event of the carrier’s failure to comply with the guaranteed service requested and after the carrier has agreed to liability and has paid the amount awarded to Customer to ExactDirect, ExactDirect will credit the account of the said Customer with such amount awarded and paid by the carrier. In no event shall ExactDirect be liable nor will any account be credited if the Customer does not use ExactDirect’s BOL.
- Attorneys’ Fees. Should any proceeding (including arbitration) or litigation be commenced between the Parties hereto concerning the terms of this Agreement, or the rights and duties of the Parties hereto, the prevailing party in such proceeding or litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for the prevailing party’s attorneys’ fees.
- Binding Nature of Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns, except that no party may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld.
- Headings. The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.
- Execution. This Agreement shall become binding upon written acceptance by ExactDirect of Customer’s acknowledgement of its intent to be bound thereby, as evidenced by its designation of acceptance on ExactDirect’s web page or by its execution of the BOL, or by acknowledgement by the Customer.
- No Other Parties to Benefit. This Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have any rights or benefits hereunder, whether as third-party beneficiaries or otherwise.
- Remedies. In the event of a breach of this Agreement or any term hereof by any party, the other Party, shall have all rights and remedies available at law, in equity, or under the terms of this Agreement, except as otherwise limited herein.
- Construction. This Agreement is intended to express the mutual intent of the Parties hereto, and irrespective of the identity of the Party or counsel who prepared this document, no rule of strict construction shall be applied against any Party.
- Governing Law; Forum; Venue. This Agreement is deemed executed, delivered and performed in the State of Arizona, and the substantive laws of the State of Arizona and Federal law as applied in Arizona (without reference to choice of law principles) and specifically excluding the United Nations Convention on Contracts for the International Sales of Goods, shall govern its interpretation and enforcement. Any action brought to interpret or enforce any provisions of this Agreement, or otherwise relating to or arising from this Agreement, shall be commenced and maintained in the Superior Court or Federal District Court located in the County of Maricopa in the State of Arizona and each of the Parties consents to jurisdiction and venue in such court for such purposes.
- Modification and Waiver. No provision of this Agreement shall be amended, waived or modified except by an instrument in writing signed by the Parties hereto.
- Materiality. All covenants, agreements, representations and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the acceptance of this Agreement.
- Severability; Integration. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision of this Agreement. This Agreement and the documents incorporated into this Agreement by reference, constitutes and embodies the full and complete understanding and agreement of the Parties hereto and supersedes all prior understandings, whether oral or written. No representation, promise, inducement or statement of intention has been made by any Party hereto which is not contemplated by or embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged misrepresentation, promise, inducement or statement of intention not so set forth.
- Indulgence Not Waiver. Neither the failure nor any delay on the part of any Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.
- Additional Instruments and Acts. The Parties to this Agreement shall execute (with acknowledgment or in affidavit form, if required) any further or additional instruments, and shall perform any acts, which are or may become reasonably necessary to effectuate and carry out the purposes of this Agreement, without the necessity of incurring any additional expense.
- Interpretation. In this Agreement the singular includes the plural, and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”.
- Authority. By execution of this Agreement, the signatories hereto represent and warrant their authority to act in the capacity stated. By execution of this Agreement each Party represents and warrants its right, power and authority to enter into and to perform its obligation under this Agreement.
Terms and Conditions of Service
Company as Agent. All shipments to or from the Customer, which term shall include the exporter, importer, sender, receiver, owner, consignor, consignee, transferor or transferee of the shipments, will be handled by ExactDirect, LLC (herein called “ExactDirect”) on the following terms and conditions:
LIMITATION OF ACTIONS. Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within seven (7) days for visual damage/loss or 24 hrs. within date of delivery for concealed damage of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air transportation, within two (2) years from the date of the loss;
(iii) For any and all other claims of any other type, within two (2) year from the date of the loss or damage.
Liability Limitations of Third Parties. ExactDirect is authorized to select and engage carriers, truck men, lightermen, forwarders, customs brokers, agents, warehousemen and others, as required, to transport, store, deal with and deliver the goods, all of whom shall be considered as the agents of the Customer, and the goods may be entrusted to such agencies subject to all conditions as to limitation of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts or tariffs issued by such carriers, truck men, lightermen, forwarders, customs brokers, agents, warehousemen and others. ExactDirect shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by ExactDirect to forward, enter and clear, transport or render other services with respect to such goods. The relationship of any such third party to ExactDirect is that of an Independent Contractor.
Declaring Higher Valuation. Inasmuch as truckers, carriers, warehousemen and others to whom the goods are entrusted usually limit their liability for loss or damage unless a higher value is declared and a charge based on such higher value is agreed to by said truckers, etc., ExactDirect must receive specific written instructions from the Customer to pay such higher charge based on valuation and the trucker, etc. must accept such higher declared value; otherwise the valuation placed by the Customer on the goods shall be considered solely for export or customs purposes and the goods will be delivered to the truckers, etc. subject to the limitation of liability set forth herein in paragraphs 7 and 8 below with respect to any claim against ExactDirect and subject to the provisions of paragraph 2 above.
- Unless requested to do so in writing and confirmed to Customer in writing, ExactDirect is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
DISCLAIMERS; LIMITATION OF LIABILITY.
(a) Except as specifically set forth herein, ExactDirect makes no express or implied warranties in connection with its services;
(b) Subject to (c) below, Customer agrees that in connection with any and all services performed by ExactDirect, ExactDirect shall only be liable for its acts, while the Customer goods are in the entire and sole possession of ExactDirect, which are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and ExactDirect shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by ExactDirect, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore, which request must be confirmed in writing by ExactDirect prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (b) above, ExactDirect’s liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to customs brokerage, $50.00 per shipment or transaction, or
(ii) where the claim arises from activities relating to "Customs business," $50.00 per entry or the amount of brokerage fees paid to ExactDirect for the entry, whichever is less;
(e) In no event, shall ExactDirect be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages
Indemnification / Hold Harmless. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against ExactDirect for ocean or other freight, duties, fines, penalties, liquidated damages or other money due rising from a shipment of goods of the Customer, the Customer agrees to indemnify and hold harmless ExactDirect for any amount ExactDirect may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including attorneys' fees, incurred by ExactDirect in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to ExactDirect to pay all charges or other money due promptly on demand.
Governing Law and Jurisdiction. The validity, construction, enforcement and interpretation of the foregoing terms and conditions shall be governed by the substantive laws of the State of Georgia, unless the application of federal law is required. The services provided by ExactDirect pursuant to these terms and conditions are to be provided, in whole or in part, in Cobb County, Georgia. Any legal proceeding instituted against ExactDirect relating to the services provided by ExactDirect to the Customer must be instituted in Cobb County, Georgia.
ExactDirect’s Terms and Conditions for entering into a Freight Fprwarder, 3PL, and/or a Freight Broker’s Agreement are set forth at exactdirect.efstms.com. Customer acknowledges and accepts those Terms and Conditions (the “T&C”) in full when accessing and/or utilizing the exactDirect TMS system. Customer specifically acknowledges that:
- Customer makes representations and warranties to ExactDirect concerning Customer’s compliance with all applicable laws, rules and regulations as set forth in pargraph 4 of the Terms and Conditions
- Customer agrees to be liable for all charges, payable on account of such Customer’s shipment, including charges made as a result of adjustment(s) issued by the carrier(s) after shipment, duties, customs assessments, governmental penalties, fines and taxes as set forth in paragraph 7 of the Terms and Conditions. Customer specifically acknowledges that post-shipment adjustments may be made, and will be paid by Customer, an inaccurate quote was provided by the selected carrier or if (i) if the original quoted amount was based upon incorrect information provided by the Customer, or (ii) if additional services by the carrier were required, or (iii) if the Customer authorized the carrier to perform the pick up, transportation and delivery functions other than contemplated by the BOL. ln the event it becomes necessary to domesticate and execute on a judgment, it will be at further expense to the debtor that will include applicable costs and reasonable legal fees.
- Customer must comply with all notice and time requirements for any claims as set forth in the Terms and Conditions;
- ExactDirect’s liability is limited as set forth in the Terms and Conditions.
- This Acknowledgment shall signify Customer’s acceptance of the Terms and Conditions for all current and future shipments.