These Service Terms & Conditions (“Agreement”) govern TJS Leasing and Holding Company, Inc.’s (“Creditor”) transportation services for customers (“Customer”) without a separate written agreement. 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. Creditor will provide or arrange transportation services hereunder under its own authority or through brokerage to third party motor carriers in the U.S. Creditor provides cross-border transportation services hereunder U.S.-Canada. Motor carriers are collectively referred to herein as “Carrier.”
1. GOVERNING LAW
(U.S.) This Agreement shall be construed first under applicable U.S. laws. Any dispute or suit arising from this Agreement shall be adjudicated in the state or federal courts of Humboldt County, California without regard to conflicts of laws principles. (Canada) For the portion of services provided in Canada, this Agreement shall be construed in accordance with the laws of the Province of Ontario, Canada. Without expressly waiving rights and remedies under U.S laws, to the extent the terms of this Agreement are inconsistent with such laws, the parties concur this Agreement shall govern.
2. GENERAL CARGO LIABILITY TERMS
Cargo loss or damage liability shall be determined by the location where the loss or damage occurred, regardless of any through bill of lading, rate confirmation sheet, service order or similar document. Customer fully understands that Carrier will accept higher cargo liability levels at higher quoted rates, but Customer freely chooses this liability level as sufficient for its needs, and agrees these limitations are reasonable under the circumstances, including the cargo’s value, Creditor’s rates, and Customer’s ability to obtain its own cargo insurance. Unless Customer has provided advance written request to Creditor of its desire to obtain additional insurance (for high value, exempt goods or Mexican insurance) and the applicable additional charges are paid, Customer warrants that it is fully authorized, by ownership or otherwise, to agree to these limitations, and Customer will indemnify Creditor and Carrier against any claims (and legal expenses) for greater or other liability asserted by any consignee, subrogee or other claimant regarding such cargo. Creditor and Carrier are exempt from liability for loss or damage to cargo caused by an act of God, a public enemy, a public authority, legal strike, an act or omission of Customer, the inherent vice or nature of the cargo, theft, any other act or situation beyond Carrier’s control. Brokered loads arranged by TJS are governed by TJS’s separate Brokerage Terms & Conditions of Service (found at www. TJSLogistics.com).
3. CARGO LIABILITY IN THE UNITED STATES
Cargo liability and claims shall be governed by 49 U.S.C. 14706 and 49 C.F.R. Part 370. Cargo liability is limited to actual loss or damage of cargo, minus salvage value, not to exceed $100,000 USD per shipment. In the event Customer gives advance written notice of higher value load, then cargo liability shall be limited to declared higher value. In no event shall Creditor or Carrier be liable to Customer for any special, incidental, punitive, exemplary or consequential damages that relate to loss, damage or delay to a shipment.
4. CARGO LIABILITY IN CANADA
Cargo liability is limited to actual loss or damage of the cargo, minus salvage value, not to exceed either (a) $2.00 CDN per pound computed on the total weight of the shipment or (b) declared extraordinary value. Creditor will not be liable to Customer or owner for: (x) consequential or indirect loss, including loss of market, except for delay or deviation damages in excess of twice the difference between the charges invoiced by the Creditor and amounts paid by the Customer to third parties for transport of shipment, or (y) amounts in excess of a maximum recoverable 75,000 SDRs (SDR = Special Drawing Rights) per transaction. Cargo liability is limited to the replacement cost of the actual loss or damage of the commodities or article(s) lost, damaged or destroyed, minus salvage value, not to exceed $2,000 USD per shipment.
5. REFUSED SHIPMENT – WAREHOUSEMAN/STORER LIABILITY (U.S./CANADA)
If Carrier is unable to deliver shipment due to consignee refusal, fault or mistake of Customer or consignee or upon instruction of Customer to hold shipment in transit, Carrier’s liability shall immediately be that of a warehouseman/storer with a duty to exercise such care and diligence in regard to them as a careful and vigilant owner of similar goods would exercise. Carrier shall be entitled to possessory and non-possessory lien rights and may dispose/sell lading 10 days after providing notice to Customer. Customer shall pay for storage and warehouseman/storer costs minus salvage value. Perishable lading will be disposed of at Carrier’s discretion. As a result thereof, Customer agrees to hold Creditor and Carrier harmless and safe from any liability that might be imposed on Creditor and/or Carrier as depositaries.
6. INDEPENDENT CONTRACTOR
Creditor’s relationship to Customer is that of independent contractor and no act or omission of Creditor or Customer shall be construed to imply any principal/agent, employer/employee, partnership, franchise or joint venture relationship between them.
7. 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 Creditor may assign its rights under this Agreement without written approval of the other party, provided, however, that Creditor may engage the services of its own affiliate(s) or 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.
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. 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.
10. INDEMNIFICATION BY CREDITOR
Creditor shall indemnify, defend and hold Customer and its employees and agents harmless from and against all claims, liabilities, duties, taxes, losses, damages, fines, penalties, payments, costs, and expenses (“Claims”) (including, without limitation, costs of defense, settlement, and reasonable attorneys' fees), including any storage, demurrage, port or terminal charges caused by and resulting from (i) the negligence or intentional misconduct of Creditor, Carrier or its employees or agents; (ii) Creditor’s, Carrier’s or its employees’ or agents' violation of applicable laws or regulations; or (iii) Creditor’s or Carrier’s debts or obligations regarding wages, salaries, taxes or benefits of its employees. Notwithstanding the foregoing, as set forth in TJSL’s separate Brokerage Terms & Conditions of Service(found at www.TJSLogistics.com), the hauling Carrier assumes Creditor’s indemnification obligations on brokered loads. The foregoing indemnity shall not apply to any Claim caused in whole or in part by the negligent acts or omissions of Customer.
11. INDEMNIFICATION BY CUSTOMER
Customer shall indemnify, defend and hold Creditor, its affiliated companies, its employees and agents harmless from and against all Claims caused by and resulting from (i) the negligent act or omission or willful misconduct of Customer, its employees, or agents; (ii) the inherent vice or nature of the commodities being transported, including but not limited to, any and all product liability claims related to such commodities; (iii) the violation of any applicable law or regulation by Customer or its employees or agents; or (iv) Customer’s debts or obligations regarding wages, salaries, taxes or benefits of its employees. The foregoing indemnity shall not apply to any Claim caused in whole or in part by the negligent acts or omissions of Creditor.
12. 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.
Customer shall not use Creditor’s or Creditor’s affiliate(s) names, logos, trademarks or trade names whether written, or oral, without obtaining Creditor’s prior written consent, which consent shall be given at Creditor’s sole discretion.
These terms and conditions embody the entire Agreement of the parties and supersede all prior oral and written understandings. Should any clause in this Agreement be found to be legally void, all other provisions shall remain intact and enforceable. This document may only be modified with the written consent of both parties. Any party’s failure to enforce strictly any provision of this Agreement shall not be construed as a waiver thereof, or as excusing the other party from future performance. Performance under this Agreement may be suspended during the pendency of any event beyond the reasonable control of Creditor without liability for damages resulting from such suspension. Except with regard to loads brokered by TJSL to third party (non-Creditor) motor-carriers (governed by Creditor’s separate Brokerage Terms & Conditions of Service (found at www.TJSLogistics.com), to the extent terms and conditions are not addressed in this Agreement, TJSL’s Brokerage Terms & Conditions of Service (found at www.TJSLogistics.com), as applicable, shall apply and control.
15. CONTACT INFORMATION
Should you have any questions about our standard Terms and Conditions of Service, 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 my mail or certified carrier 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., 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 9. of this Agreement.