TERMS & CONDITIONS OF SERVICE
DEFINITIONS. “DESPIR” means DeSpir Logistics, LLC, its subsidiary, affiliated and related companies, and its agents, representatives and employees. “Customer” means the individual, corporation or other entity which has engaged and/or retained DESPIR to perform property brokerage, warehousing, freight management, consulting and transportation intermediary services, as well as all agents, representatives and subcontractors of said individual, corporation or entity, including, but not limited to all shippers, consignors and consignees of the Shipment, or the insurers thereof, and any other party claiming a right or interest in the Shipment. The Customer agrees to provide notice of these Terms and Conditions of Service to all parties falling within this definition of “Customer.” “Shipment” means the goods which are carried or handled under the terms of single load or rate confirmation, bill of lading or other contract of carriage, irrespective of the quantity or number of containers, packages or pieces. “Third Parties” shall include, but not be limited to, the following: motor carriers, truckmen, draymen, cartmen, lightermen, freight forwarders, NVOCCs, air carriers, agents, warehousemen and others to whom the Shipment is entrusted for transportation, cartage, handling, delivery, storage, and/or otherwise.
1. Contract and Scope of Services. DESPIR is a registered and licensed property broker with the Federal Motor Carrier Safety Administration (“FMCSA”) operating under Docket No. MC-877104, which undertakes to arrange, on behalf of Customers, the intrastate and interstate surface transportation of Shipments with third-party motor carriers from and to various origins and destinations throughout the United States, Canada and Mexico. Customer acknowledges that DESPIR is not a motor carrier, common carrier, contract carrier, rail carrier, water carrier, or freight forwarder as those terms within the meaning of Title 49 of the United States Code (Transportation) and any regulations promulgated thereunder. From time to time, DESPIR may arrange ocean carriage, air carriage, warehousing, storage, or other handling with third-party carriers, freight forwarders, warehouseman, and other transportation and logistics providers. Customers acknowledge that DESPIR’s role as property broker or transportation intermediary with respect to any Shipment is limited to arranging transportation, storage or other handling with third-party motor carriers or other third-party service providers, including those identified as Third Parties herein. All services provided by DESPIR to Customer are governed by these Terms and Conditions of Service, which form a contract between DESPIR and the Customer. These Terms and Conditions of Service supersede all agreements, representations, warranties, statements, promises, and understandings of the parties, written or oral, except as stated herein. Copies of DESPIR’s most recent Terms and Conditions of Service may be obtained by contacting DESPIR and will be periodically updated on DESPIR’s website.
2. Bills of Lading. All bills of lading prepared by DESPIR for Customer shall be deemed to have been prepared by the Customer and will identify the actual motor carrier for the Shipment. Customer agrees that DESPIR’s preparation of any such bills of lading shall not change DESPIR’s status as a property broker, that DESPIR does not issue bills of lading as a carrier for the purpose of accepting responsibility for the transportation Shipments. If Customer or any consignor or shipper prepares a bill of lading for a Shipment, Customer agrees that DESPIR shall be identified as a broker on the bill of lading and that any identification of DESPIR’s name on a bill of lading as a carrier or any capacity other than as a broker shall be for the shipper’s/consignor’s convenience only, and such notation shall not affect or defeat DESPIR’s status as a property broker.
3. Limited Liability.
(a) DESPIR agrees to select, on behalf of the Customer, the Third Parties to whom the Shipment will be entrusted for transportation, handling, delivery, storage and related Services. The selection or advice by DESPIR that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that DESPIR warrants or represents that such person or firm will render such service. Customer acknowledges and agrees that DESPIR makes no warranties with respect to Third-Parties selected by DESPIR, and that DESPIR shall have no liability for any acts or omissions of Third Parties which may damage or delay the Customer’s Shipment or cause other loss to the Customer and its interest in the Shipment, including losses relating to Shipments illegally obtained by unauthorized persons through identity theft and other fraudulent schemes. All claims in connection with the acts or omissions of Third Parties shall be brought solely against Third Parties and/or their insurers, and DESPIR shall have no liability for any failure of Third Parties, or their insurers, to pay such claims. DESPIR agrees to reasonably assist the Customer in bringing such claims against Third Parties; however, timely payment of DESPIR’s invoices to the Customer is a condition precedent to such assistance.
(b) THE MAXIMUM LIABILITY OF DESPIR TO THE CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CUSTOMER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL FREIGHT AND OTHER CHARGES INVOICED BY DESPIR TO THE CUSTOMER FOR THE SHIPMENT OR SERVICE AT ISSUE. EXCEPT AS MAY BE SET FORTH HEREIN, DESPIR MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING ITS SERVICES. IN NO EVENT SHALL DESPIR BE LIABLE FOR ANY LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED TO THE CUSTOMER, EVEN IF DESPIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Insurance. Unless otherwise agreed in writing, DESPIR will select Third Parties which have certificates of insurance showing liability insurance coverage limits for loss or damage to cargo up to $100,000. In no event, however, shall DESPIR be responsible for a Third Parties’ failure to actually maintain such insurance, for any exclusion from coverage which may apply, or for any fraudulent act by Third Parties or any other persons or entities presenting fraudulent or false information to DESPIR or the Customer. Upon request and for a separate charge, DESPIR can arrange first-party cargo insurance for the Customer’s Shipment. However, DESPIR is under no obligation to arrange such insurance unless it receives specific written instructions from the Customer to do so prior to transportation of the Shipment, and the Customer pays the required premium. The Customer agrees DESPIR assumes no agency role for the Customer in procuring such first-party cargo insurance coverage, that such coverage shall be governed exclusively by the terms of the certificate of insurance coverage and policy issued by the insurance company to Customer, and the insurance company is solely responsible for the payment of insurance claims.
5. Declaring Higher Value to Third Parties. Third Parties to whom Shipments are entrusted may limit liability for loss or damage. DESPIR will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefore. In the absence of written instructions or the refusal of the Third Party to agree to a higher declared value, at DESPIR’s discretion, Shipments may be tendered to the Third Party, subject to the terms of the Third Party’s limitations of liability and/or terms and conditions of service.
6. Obligations of Customer. Customer is responsible for providing accurate weights, sizes and descriptions of the Shipment including the freight class and National Motor Freight Classification (“NMFC”) code. Customer agrees to ensure the Shipment is properly prepared for transport by Third Parties (NMFC and/or industry compliant packaging and a proper address) and to ensure that any flatbed cargo is properly secured and tarped for transportation, unless these services have been arranged for by Customer with DESPIR as an accessorial service. Customer also agrees to ensure that the Carrier has obtained any necessary permits for oversize or overweight shipments, unless permitting services have been arranged for by Customer with DESPIR as an accessorial service. Customer AGREES TO PAY FOR ALL SERVICES AS ACTUALLY PROVIDED by DESPIR and Third Parties selected by DESPIR.
7. Necessary Documentation. If Customer does not complete all the documents required for the transportation of a Shipment, or if the documents which it submits are not appropriate, Customer hereby instructs DESPIR, where permitted by law, to complete, correct or replace the documents for it at the expense of Customer. DESPIR is not liable to Customer or to any other person for any actions taken on behalf of Customer under this provision. Customer acknowledges its responsibility to comply with and warrants its compliance with all applicable state and federal laws, rules, and regulations including, but not limited to, customs laws, import and export laws, economic sanctions and governmental regulation of any country to, from, through or over which the Shipment may be transported. Customer agrees to furnish such information and complete and to provide such documents as are necessary to comply with such laws, rules and regulations. DESPIR assumes no liability to Customer or to any other person for any loss or expense due to the failure of Customer to comply with this provision. Any individual or entity acting on behalf of Customer in scheduling shipments hereunder warrants that it has the right to act on behalf of Customer and the right to legally bind Customer.
8. Credit. Payment terms and credit limits are subject to credit approval at the sole and absolute discretion of DESPIR, which shall be determined periodically and after submission of a Credit Application,and may be revised or revoked if there is a change in Customer’s payment history or financial condition. Customer grants DESPIR the right to perform such credit history and background searches as DESPIR deems necessary, and will submit a financial statement if requested.
9. Cash Collect Shipments. DESPIR can assist with Cash on Delivery (“C.O.D”) Shipments, but the Customer assumes the sole responsibility and liability for any failure of a consignee or bank to pay, and for any delay in the Shipment or loss to the Shipment that may result.
10. Quotations and Rates. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the DESPIR to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the DESPIR unless DESPIR writing agrees to undertake the arranging of transportation or other handling of a Shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between DESPIR and the Customer.
11. Payment of Services. Payment terms for all charges incurred for Services performed or arranged by DESPIR shall be net thirty (30) days from the date of the invoice issued by DESPIR. Invoices submitted by DESPIR to Customer are deemed conclusively accepted and approved and fully payable on the terms contained therein unless disputed in writing by Customer within fourteen (14) business days of Customer’s receipt thereof. Any amount remaining unpaid after thirty (30) days shall accrue interest at a rate equal to the lesser of: (a) 1.5% per month of the average outstanding balance due; or (b) the highest rate allowed by law. Invoices past due by 30 days shall be subject to forfeiture of any discount rates, skid rates, or spot pricing, and DESPIR is entitled to re-rate all such unpaid Shipments. DESPIR’s charges for the Services it performs are in addition to the charges of all Third Parties retained by DESPIR on the Customer’s behalf, which will be invoiced together. The Customer agrees to pay DESPIR’s invoices without reduction or deferment on account of any alleged claim, counterclaim or set-off it believes it has for cargo loss, damage or theft, and all charges therein shall be considered as earned by DESPIR at the moment the Shipment has commenced transportation. In the event DESPIR retains an attorney or collection agency to collect unpaid charges, DESPIR is also entitled to collect a late payment penalty of 25% of the original charges.
12. Lien on Customer’s Goods. The Customer agrees that DESPIR has a general, contractual lien on all Shipments which are the subject of Services rendered by DESPIR while those Shipments are in possession of DESPIR or any Third Parties for any accounts receivable owed by the Customer to DESPIR arising from the specific Shipment against which the lien is asserted, and/or arising from any previous Shipments. If DESPIR elects to hold any Shipment based on these lien rights, it will provide written notice of that election to the Customer, and Customer agrees DESPIR has the authority to direct Third Parties to hold shipments on the basis of these lien rights and to arrange unloading and storage at Customer’s expense. If the Customer fails to make payment arrangements or post security to DESPIR’s satisfaction within thirty days of such notice, DESPIR will have the right to sell the Shipment at private or public sale or auction and will remit to the Customer any net proceeds after the sale which exceeds the total amount owed (including any accrued unloading, loading and storage charges). The Customer shall provide notice to any other parties having an interest in the Shipment of these lien rights and of any exercise of those rights by DESPIR.
13. Indemnification. Customer must defend, indemnify, and hold DESPIR and Third-Parties selected by DESPIR harmless against any losses caused by or resulting from (i) Customer or Customer employees’ or agents’ negligence or intentional misconduct, (ii) Customer’s breach of these Terms and Conditions, or (iii) Customer or Customer employees’ or agents’ violation of applicable laws or regulations. Customer shall also indemnify and defend DESPIR in the event Customer or its insurance carrier asserts a claim or lawsuit against DESPIR for loss, damage, or delay to Customer Shipments. The obligation to defend includes payment of all reasonable costs of defense, including attorney fees, as they accrue.
14. Disclaimer of Warranties. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THIS AGREEMENT, DESPIR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, THIRD PARTIES, WAREHOUSED GOODS, ITEMS IN TRANSIT, DELIVERIES.
15. Independent Contractor. DESPIR shall be an independent contractor with respect to Customer. Third Parties selected by DESPIR and to whom Customer Shipments are entrusted for transportation, handling, delivery, storage and related services (“Services”) shall be independent contractors with respect to DESPIR and Customer. DESPIR’s agents and employees shall under no circumstances be deemed to be the employees or agents of Customer, and under no circumstances shall the agents and employees of Third Parties be deemed the agents or employees of DESPIR or Customer. Customer acknowledges and agrees that Third Parties selected by DEPSIR shall exercise exclusive control, supervision, and direction over (i) the manner in which their Services are provided; (ii) the persons engaged in providing such Services, including drivers; and, (iii) the equipment selected and used to provide Services, including trucks, tractors, trailers, chassis, containers, and other equipment. Third Parties shall have full responsibility for the payment of local, state, and federal payroll taxes, workers compensation and other social security and related payment requirements with respect to all persons engaged in the performance of their Services. This Contract does not create, nor shall it be deemed to create a partnership, joint venture, or agency relationship between Customer, DESPIR and/or any Third-Parties selected by DESPIR.
16. Applicable Law, Venue and Time for Suit. These Terms and Conditions of Service shall be governed by Illinois law without the application of its conflict of laws principles. Any suit relating to this Agreement shall be instituted in a state or federal court in DuPage County, Illinois, and the parties irrevocably consent and waive all objections to the jurisdiction of any such court. A suit to enforce a judgment against the Customer may be filed in any jurisdiction where the Customer has assets. Any cause of action against DESPIR relating to or arising out of the Services DESPIR provides to the Customer will not be valid unless such action is commenced by the filing of a complaint in the required venue within one year of the date of the loss. DESPIR shall be entitled to recover its courts costs and reasonable attorney’s fees from the Customer in any action for collection of any payment due to DESPIR, or in any other action in which DESPIR prevails in the enforcement of these Terms and Conditions of Service.
17. Modification. No modification of these Terms and Conditions of Service shall be of any force or effect unless (a) reduced to writing and signed by both DESPIR and the Customer prior to Shipment, and (b) expressly referred to as being a modification of these Terms and Conditions of Service.
18. Severability. The provisions set forth in these Terms and Conditions of Service are severable, and if any particular provision should be held invalid, unenforceable or illegal by a court having competent jurisdiction, the remainder of these Terms and Conditions shall not be affected and shall be construed as if such invalid, unenforceable or illegal provision(s) was (were) omitted.