TJS Leasing and Holding Company, Inc. ("Creditor") is licensed in the U.S. as a carrier and property broker under MC 150982; US DOT 80661; Creditor’s affiliate, TJS Logistics (“TJSL”), is licensed in the U.S. as a property broker under MC 803549; US DOT 2359985.
TJS Leasing and Holding Company, Inc. DBA TJS Logistics, hereinafter (TJSL), is a transportation brokerage company and is licensed to arrange with motor carriers for the transportation of Customer's products in interstate and foreign commerce.
1. BUSINESS TRANSACTIONS
The following are standard Terms and Conditions that govern business transactions between TJSL and its customers. These Terms and Conditions outline the provisions by which TJSL provides services for its customers and its responsibilities in connection with such services.
Unless otherwise governed by a separate written Logistics Services Contract between the parties, the Customer (which term shall include the shipper, consignee, owner, or the party designated as the payor of the freight charges) acknowledges and agrees that all motor carrier transportation and related services provided by TJSL shall be subject to these Terms and Conditions beginning the first day of initiation of any service is performed for Customer.
3. TJSL'S OBLIGATIONS
TJSL is authorized by Customer to select and engage carriers and service providers as required and to enter into the usual and customary agreements, and shall use reasonable care to ensure that they are properly licensed and qualified to perform the requested services. Unless express instructions in writing are received from Customer, TJSL is free to choose the means, route and procedure to be followed in the handling, transportation and delivery of the goods.
4. CUSTOMER'S OBLIGATIONS
A. Customer shall be responsible to insure that all goods are properly prepared and packaged to withstand the normal rigors and environment of the transportation.
B. Customer shall provide sufficient and accurate information to enable TJSL to make appropriate arrangements for the transportation of Customer's goods, and the determination of the applicable freight and/or accessorial charges. Such information will include, but not be limited to the following when applicable to the shipment: pickup and delivery locations, an accurate description of the goods, the number of packages, pallets or slipsheets, the type of packaging and if it is shrinkwrapped or banded, the weight and dimensions, the NMFC class, and any special requirements for appointments, special handling or equipment, temperature control, etc. TJSL shall not be responsible for any additional freight or accessorial charges or for loss, damage or delay resulting from misrepresentation of the foregoing by Customer.
C. TJSL will use reasonable efforts to transmit Customer's information and requirements to the carrier, but Customer shall remain solely responsible to insure that all necessary information and instructions are provided to the carrier and included on the bill of lading.
5. COMPENSATION AND PAYMENT
A. Customer agrees to be unconditionally liable for all charges, fees and costs any authorized person incurs on Customer’s account Net 15 days from date of Creditor’s invoice, without offset for any disputes or claims, including freight claims, overcharges, duplicate payments or disputed invoices.
B. All rates, charges and rules, including accessorial services, shall be agreed to in writing and are to be contained in a schedule annexed hereto. Rates may be established or amended verbally, but shall be documented by a Rate Confirmation signed by both parties, and said document shall constitute an addendum to this Agreement.
C. Creditor shall invoice Customer or its designated freight payment agent for all freight and accessorial charges promptly upon delivery. Customer understands that certain accessorial charges (detention, redelivery, etc.) may not be identified at time of initial rate confirmation, and may be included in final invoices.
D. Customer shall pay Creditor within fifteen (15) days from date of invoice. Late charges of [18% (U.S.)] [24% (Canada)] per year shall commence on the 31st day after the date of Creditor’s invoice until paid. Should Customer’s account become past due, in addition to the balance owed, Customer agrees to the following extra fees and costs [(Canada) calculated as a percentage of the overdue invoice, excluding taxes]: 30% if referred to collection agency; 33% if referred to an attorney, plus attorney’s fees whether or not suit is filed (plus principal, interest, 30% collection agency fees). Any payment dispute or suit shall be governed by the laws of the State of California and adjudicated in the courts of Humboldt County, California without regard to conflicts of laws principles. Customer expressly acknowledges it has received, read, understands and agrees to the terms and conditions of this Agreement and acknowledges the language in this Agreement has not been altered. For the purpose of establishing credit, Customer authorizes its bank, any credit reporting agencies, any other financial institutions and any other creditors to release credit and financial information to Creditor and hereby expressly waives any rights to privacy or confidentiality concerning such information as may be provided under any federal, provincial, territorial or state statute.
E. Customer shall not set off claims for loss, damage or delay, or claims for overcharge or duplicate payment, against freight or other charges owed to Creditor.
F. Claims for overcharges or undercharges must be filed in writing with the other party within sixty (60) days of the date of the original invoice, or will be deemed waived. Any civil action by Creditor to recover charges for transportation or service provided, or by Customer to recover overcharges, must be commenced within one (1) year from the date of delivery of the shipment.
6. LIABILITY FOR LOSS, DAMAGE OR DELAY
A. It is understood and agreed that TJSL is not a carrier. TJSL assumes no liability as a carrier and TJSL shall not be held liable for loss, damage or delay in the transportation of Customer's property. Under no circumstances shall TJSL be liable for any loss, damage, or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by TJSL. Customer further agrees that TJSL shall in no event be liable for any loss, damage or delay to the goods resulting from the negligence or other fault of TJSL, or for any consequential, punitive, or special damages, in excess of $50.00 per shipment.
B. In the event that TJSL receives, stores, or otherwise physically handles Customer's property, TJSL’s liability shall be that of a warehouseman only, and subject to the terms and conditions of its standard warehouse receipt.
C. All matters relating to loss, damage or delay to goods are to be handled directly between Customer and the carrier, and TJSL assumes no responsibility for same other than to assist in the processing of claims and/or attempt to facilitate settlements, if requested by Customer.
7. SURETY BOND
TJSL shall maintain a broker's surety bond that shall meet or exceed the requirements of 49 CFR Part 387 and furnish Customer with proof thereof upon request during the existence of this Agreement.
8. INSURANCE; DECLARED VALUE
TJSL does not provide cargo insurance for the benefit of Customer. Customer is advised that motor carriers, freight forwarders, warehousemen and others to whom the goods are entrusted may limit their liability for loss or damage unless a higher value is declared and a charge based on such higher value is agreed to. Unless specific written instructions from Customer have been received by TJSL in sufficient time prior to shipment, TJSL shall have no obligation to arrange with carriers or others for insurance or to pay charges for declare valuation on behalf of Customer.
9. GOVERNING PUBLICATIONS
All services provided by TJSL are subject to TJSL’s Brokerage "Terms and Conditions of Service" (the Agreement) which are incorporated herein by reference and are available on request and published on TJSL’s website (found at TJSLogistics.com). The provisions of the Brokerage "Terms and Conditions of Service" shall govern the rights and obligations of the parties hereto.
A. Upon payment by Customer to Creditor of all applicable freight charges owed to TJSL, TJSL shall indemnify and hold Customer harmless against any and all claims, demands, and suits by carriers or others seeking duplicate payment of freight charges from Customer.
B. Customer agrees to indemnify, defend and save harmless TJSL from and against any and all third party claims brought against TJSL, and any and all liabilities incurred by TJSL to third parties, for or on account of bodily injury (including death) or property damage, to the extent such liabilities or claims arise out of or result from the negligence, acts or omissions of Customer or its employees or agents.
11. NON EXCLUSIVE
It is understood and agreed between the parties hereto that this is a non exclusive Agreement and that TJSL shall be free to accept freight for transportation from shippers other than Customer and that Customer shall be free to tender freight for transportation to brokers other than TJSL.
12. INDEPENDENT CONTRACTOR
In the performance of transportation service hereunder, TJSL and the carriers it selects shall be independent contractors and shall not act as an agent or employee of Customer. No employee, agent or other representative of either party shall at any time be deemed to be under the control of both parties. Each party shall be fully liable for all workers' compensation premiums and liability, Federal, State, and local withholding taxes or charges with respect to its respective employees, and each agrees to save the other harmless from any claims brought against the other in relationship thereto. Carriers selected by TJSL shall, at their expense, furnish suitable trucks, trailers, and tractors to transport the commodities tendered by Customer hereunder and assume all costs, including permits, tolls and all other expenses and liabilities incident to the transportation of such commodities.
13. ELECTRONIC DATA INTERCHANGE
Shipping instructions, bills of lading, delivery receipts, claims for loss, damage, undercharges or overcharges, and related communications may be transmitted by EDI in such format as may be agreed to by the parties. Each party shall retain or archive such transmissions in a suitable permanent media and shall make print copies of such records available on reasonable request. It is stipulated that records maintained in the manner provided herein shall be admissible for all purposes in the event of dispute or litigation.
Neither Customer nor TJSL may assign its rights under this Agreement without written approval of the other party, provided, however, that TJSL may engage the services of other licensed brokers if necessary to secure suitable carriers or equipment. Notwithstanding the above, the parties may assign their rights, duties, obligations and interest in and to this Agreement to a parent, subsidiary, affiliate or sister corporation; provided, however, the parties shall not be thereby relieved of the responsibilities or obligations hereunder.
15. PRESERVATION OF RECORDS
TJSL agrees to comply with the requirements of 49 CFR Section 371.3, to maintain its records of transportation performed pursuant to this Agreement, and to make them available to Customer upon written request.
16. DEALING WITH CARRIERS
During the term of this Agreement and for a period of one (1) year beginning with the last day such service was performed for Customer, Customer agrees that it shall not deal with, conduct business or negotiate directly or indirectly with carriers that TJSL has arranged transportation services, except where necessary in the processing of freight claims or freight charge disputes but only with the full, actual knowledge of TJSL. In the event Customer breaches this provision, it shall be liable to TJSL for the full amount of commissions or other compensation which would have been due TJSL on any and all movements handled by said carriers for Customer for a period of one (1) year, together with interest, costs and reasonable attorneys’ fees in the event legal proceedings are necessary to collect said amounts.
All notices under this Agreement shall be in writing and shall be properly given and delivered in person or sent by first class mail addressed as provided for from time to time by the parties hereto.
TJS Leasing and Holding Company, Inc. DBA TJS Logistics
989 Milton Avenue, Suite 1D
Ferndale, CA 95536
Address as provided by Shipper to TJSL
15. GOVERNING LAW
To the extent not governed by the Interstate Commerce Act or other applicable federal statutes, the laws of the State of California shall govern the validity, construction and performance of this Agreement and all actions or proceedings shall be brought in the Superior Court of California, Humboldt County.
The parties hereto agree not to disclose information regarding traffic transported pursuant to this Agreement, or other proprietary information, including but not limited to trade secrets, web technology, etc., to any person or entity not named in the transportation documents.
17. FORCE MAJEURE
Neither party hereto shall be liable to the other for default in the performance of any obligations under this Agreement, or for loss, damage or delay to shipments, if caused by fire, strikes or labor disputes, riot, war, Act of God, governmental order or regulation, or other similar contingency beyond the reasonable control of the respective parties.
18. COMPLETE AGREEMENT; SEVERABILITY
This Agreement, including any Appendices hereto, constitutes the entire Agreement between the parties and may be modified only as evidenced by written agreement and signed by the parties. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remaining portions of this Agreement shall continue to be operative and in full force and effect.
19. DISPUTE RESOLUTION
Any controversy, claim or dispute that cannot be resolved between the parties arising out of the services provided by TJSL to Customer, where the amount in controversy is less than $10,000, shall be submitted to the Transportation Arbitration Board, Inc. for binding arbitration under that organization's Rules and Procedures and the Arbitrator's decision shall be final and binding. If so submitted to arbitration, no court action can be taken by either party prior to conclusion of the arbitration proceeding (other than the filing of suit to protect against the running of any period of limitations set forth in this Agreement or applicable statute), and the Arbitrator's decision shall be final and binding.
20. CONTACT INFORMATION
Should you have any questions about our standard Terms and Conditions, please contact
Jeffrey D. Cyphers, President/CEO Phone: 707.249.2420, Fax: 707.269.2424 or e-mail: [email protected]
APPENDIX A to TERMS AND CONDITIONS OF SERVICE; Payment Methods.
Creditor currently accepts the following forms of payment. Alternate payment methods may be available upon request.
Electronic Funds Transfer (Credit EFT). Customer can arrange to have payment electronically requested and automatically withdrawn from its bank account. This payment method can be used in conjunction with any billing and payment schedule.
Check. Customer can send bank checks, money orders, and official cashier checks through the postal service with a copy of Creditor’s remittance invoice and/or statement. This payment method can be used in conjunction with any billing and payment schedule. All check payments shall be sent to TJS Leasing and Holding Company, Inc. DBA TJS Logistics, 989 Milton Avenue, Suite 1D, Ferndale, CA 95536.
Creditor reserves the right to provide and approve billing and payment schedules and payment methods.
Customer should check with its bank to ensure that there are no fees for electronic transactions.
It is Customer's responsibility to promptly notify Creditor’s bank of any changes to Customer's billing information or loss, theft, or unauthorized use of Customer's credit card number or bank account.
Customer is responsible for updating Customer's account information and credit card and/or bank account information on file with Creditor, as applicable.
For each payment returned as unpaid, Creditor reserves the right to charge Customer a returned item fee of thirty-five ($35.00) dollars or the maximum amount allowed by law. In addition to the charges for insufficient funds, any applicable finance charges on unpaid balances will be charged. In the event Creditor retains an attorney or collection agency to collect unpaid charges or for the enforcement of these Terms and Conditions, all unpaid charges will be subject to a late payment penalty as defined in 5.(D) of this Agreement.