Please read these terms and conditions carefully before using Our Service.
I. APPLICATION; DEFINITIONS; AMENDMENT
A. These Terms and Conditions of Property Brokerage Service (as in effect on the date of shipment, these “Terms and Conditions”) apply to any transportation of property arranged by Freight Flex, LLC (“FREIGHT FLEX”) for a Customer as defined in Section I.B. below. All transportation services arranged or offered by FREIGHT FLEX (“Services”) are performed solely in FREIGHT FLEX’s capacity as a property broker registered with the Federal Motor Carrier Safety Administration (“FMCSA”) under USDOT 9588975 and MC 1214939, not as a motor carrier or freight forwarder. Upon acceptance of a Customer’s request for Services (an “Acceptance”), which may be done verbally or in writing, FREIGHT FLEX will arrange for carriage by third parties (“Servicing Carriers”) of goods moving by truck or other transportation modes to, from and between points in the United States, Canada, and Mexico, and within points located in the same U.S. state or the same Canadian province.
B. For purposes of these Terms and Conditions, “Customer” means (1) the consignor, consignee, or owner of the property for which Services are provided (the “Goods”), (2) any other person who is or may become interested in the Goods or their transportation, as well as (3) any person at whose request or on whose behalf FREIGHT FLEX undertakes any Services.
C. References to “Goods” include the actual commodities being transported as well as any packaging, pallets, containers or equipment in which such commodities are transported.
D. By tendering Goods to FREIGHT FLEX for Services (which may be done orally or in writing), Customer expressly accepts these Terms and Conditions and agrees that they have been accepted for itself and on behalf of all other persons for whom Services relating to those Goods are provided.
E. FREIGHT FLEX may revise these Terms and Conditions with prospective effect at any time. FREIGHT FLEX will post revised versions of these Terms and Conditions on its website at freightflex.com. FREIGHT FLEX has no duty to provide notice to Customer of any revisions to these Terms and Conditions other than by posting the updated Terms and Conditions on its website. Unless amended, the effectiveness of these Terms and Conditions upon FREIGHT FLEX and Customer shall continue automatically throughout Customer’s use of FREIGHT FLEX for Services.
II. TRANSPORTATION CONTRACTS; EFFECT OF OTHER SHIPPING DOCUMENTS
A. These Terms and Conditions apply except to the extent expressly amended, superseded or waived in a transportation contract signed by authorized representatives of both Parties, in which they agree to additional or amended service terms.
B. In the case of conflict between any of these Terms and Conditions and such a signed transportation contract, the terms of the transportation contract will govern. Where the transportation contract is silent on any matter and does not expressly disclaim these Terms and Conditions, the provisions of these Terms and Conditions will apply with respect to such matter.
C. If there is a conflict between these Terms and Conditions and the provisions set forth in any quote or load confirmation issued by FREIGHT FLEX, the provisions of FREIGHT FLEX’s quote or load confirmation will govern as stated or amended from time to time in Appendix B to these Terms and Conditions. Any provisions in a load tender, bill of lading, delivery receipt or any other document issued by Customer will not apply to the Services or be binding on FREIGHT FLEX unless FREIGHT FLEX has expressly agreed to such provisions in a transportation contract signed by an authorized representative of FREIGHT FLEX.
D. Customer agrees that it will not insert FREIGHT FLEX’s name as the “carrier” on a bill of lading or other shipping document, and that any reference to FREIGHT FLEX as the “carrier” on any shipping document issued by Customer or any Servicing Carrier will not impact FREIGHT FLEX’s status as a property broker. FREIGHT FLEX will require Servicing Carriers to specify on their shipping documents the type of operating authority they hold for the Services they render hereunder. FREIGHT FLEX encourages Customers to notify it of any violation of this requirement by a Servicing Carrier.
III. COMPLIANCE WITH LAWS
A. General
FREIGHT FLEX and Customer will each comply with the applicable provisions of laws, rules, regulations and international conventions applicable to their respective operations and businesses. FREIGHT FLEX is duly and legally qualified to operate as a property broker as defined by federal and state or provincial laws of the United States and Canada respectively, and by the federal laws of Mexico, to the extent necessary to provide the Services contemplated herein.
B. Hazardous Materials
(1) Customer shall not tender to FREIGHT FLEX for transportation any hazardous material, as that term is used and defined in the Hazardous Materials Transportation Act, 49 U.S.C. § 50101 et seq. In the event Customer does tender hazardous materials to FREIGHT FLEX or the Servicing Carriers and FREIGHT FLEX agrees to accept such tender, Customer shall first provide FREIGHT FLEX with advance written notice of the product and a current Material Safety Data Sheet for the hazardous material to be tendered.
(2) Customer agrees that FREIGHT FLEX shall have no liability for, and that Customer shall indemnify, defend and hold harmless FREIGHT FLEX and its officers, employees, agents and insurers against, all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or related to the release of any hazardous material. Such indemnification shall include, without limitation, fines or expenses related to the removal or treatment of hazardous material or other remedial action pertaining to the hazardous material under United States federal or state law, if (a) Customer fails to provide advanced notice prior to tendering hazardous material to FREIGHT FLEX or the Carriers; (b) the contact, exposure or release resulted from improper packaging or loading or other acts or omissions of the Customer, its employees or agents; or (c) the contact, exposure or release occurred subsequent to the transport of the hazardous material by FREIGHT FLEX or the Servicing Carriers.
C. Customs and Export Control
FREIGHT FLEX will not be responsible for the importation of any Goods across national borders, for compliance with any related customs, tax or other import procedures and requirements, nor for compliance with export controls of any country.
IV. CUSTOMER WARRANTIES
By tendering Goods to FREIGHT FLEX for transportation, Customer makes the following representations and warranties:
A. Suitability of Goods for Transportation
(1) All Goods have been properly and sufficiently prepared, packed and stowed, and are fully and accurately described, labeled, and/or marked as suitable for any operations or transactions affecting the Goods and as appropriate for the characteristics of the Goods and the intended mode of transportation;
(2) the Goods are suitable for highway transportation in or on the intended trailer or container type or for intended conveyance by another mode of transportation; and
(3) for less-than-truckload (“LTL”) shipments, any Goods susceptible to damage by ordinary handling in the LTL environment must be adequately protected, packaged and marked and appropriately labelled in such a way to alert FREIGHT FLEX or the Servicing Carrier(s) of the possibility of damage from ordinary handling.
B. Sufficient Information and Instructions
Customer will provide all information and instructions that are reasonably necessary for FREIGHT FLEX to effectively arrange for performance of the Services requested by Customer in accordance with any applicable laws, rules, regulations or conventions.
C. Accurate Goods Descriptions
Customer will provide detailed and accurate descriptions of any Goods tendered for transportation and their accurate weights. Customer is responsible for being aware of, apply for and pay for all licenses, permits or authorizations required by governmental authorities to conduct the business and transportation contemplated by Customer.
D. No Tender of Prohibited Goods
Customer will not tender any Goods that will or would reasonably be expected to contaminate, taint, corrode, or otherwise adversely impact the quality or condition of other Goods being transported, or of the trailer/container used in transporting the Goods. FREIGHT FLEX will not accept shipments for transportation of the following nature:
(1) Petroleum Products
(2) Class 1 Explosives (United States Department of Transportation: 1.1, 1.2, 1.3
(3) Other Explosives and Flammable Gases
(4) Bullion or precious metal objects
(5) Precious Stones
(6) Cash or securities
(7) Valuable works of art and/or antiquities
(8) Live animals
(9) Jewelry (except costume jewelry)
(10) Fur garments
(11) Non-ferrous metals in any form
(12) Personal Effects
(13) Solar Panels and/or any component parts
Further commodity restrictions may be applied by the Servicing Carrier. FREIGHT FLEX and/or the Servicing Carrier reserve the right to refuse any shipment at point of acceptance that their representatives deem unacceptable for transit due to any security or safety concern.
E. Handling of Equipment
(1) Customer will cause all empty trailers and containers tendered for loading to be inspected before loading and will reject any equipment that is not in apparent suitable condition to protect and preserve the Goods during transportation. Customer will promptly notify FREIGHT FLEX of any rejected equipment.
(2) If Customer requests that FREIGHT FLEX arrange for trailers, containers or chassis to be dropped at a location for Customer’s convenience and to be left unattended, Customer will pay for loss or damage to such equipment occurring during or because of such possession or use.
F. Authority to Bind Others to Terms
(1) Customer shall require and cause any person or entity tendering the Goods to FREIGHT FLEX on Customer’s behalf to represent and warrant to FREIGHT FLEX that it has authority to agree to, accept and bind, as applicable, the consignor, consignee, owner and insurer of the Goods, as well as others with an interest in the Goods or transportation Services, to these Terms and Conditions.
(2) Likewise, Customer shall require and cause the consignor, consignee, owner and insurer of the Goods, as well as others with an interest in the Goods or the transportation Services, to represent and warrant to FREIGHT FLEX that the person or entity tendering the Goods to FREIGHT FLEX for transportation is authorized to bind them to these Terms and Conditions and that they agree to, accept and are bound by these Terms and Conditions.
G. Acceptance of Shipment Not a Waiver
FREIGHT FLEX’s or the Servicing Carrier’s acceptance of any shipment will not be a waiver of Customer’s obligation to comply with any obligation in these Terms and Conditions.
H. Access to Customer’s Facilities
(1) Customer will provide the Servicing Carriers with access to its or its consignor’s facilities to load or unload the tendered Goods. Access to the facilities by the Servicing Carriers shall be without charge to the Servicing Carriers unless otherwise agreed to in writing between the Parties.
(2) Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and for compliance with all laws, codes and regulations applicable to them. Customer hereby waives and releases FREIGHT FLEX from any liability for any loss or damage to such facilities or to Customer’s personal property located on such facilities.
V. SELECTION OF SERVICING CARRIERS
A. FREIGHT FLEX’s sole responsibility with respect to selection of any Servicing Carriers is to ensure that any such Servicing Carrier holds the applicable authorization and approvals necessary to perform the underlying transportation Services in question.
B. FREIGHT FLEX is in the business of arranging for transportation by motor carriers and/or other direct transportation providers, but is neither engaged by Customer nor licensed by any governmental authority to assess, analyze, or predict the likelihood of a motor carrier’s safe operations. FREIGHT FLEX reasonably relies upon the United States federal and state Governments to only allow safe motor carriers to operate on the public roads and is under no duty to investigate individual motor carriers’ operations. Nonetheless, FREIGHT FLEX shall not knowingly engage any Servicing Carrier under these Terms and Conditions to which FMCSA or a successor agency has assigned an Unsatisfactory safety rating under 49 C.F.R. Part 385 or the equivalent under successor regulatory provisions.
VI. RATES, FUEL SURCHARGES AND ACCESSORIAL CHARGES
A. Rates, Fuel Surcharges and Accessorial Charges
(1) Unless Customer and FREIGHT FLEX have both signed a contract establishing other Customer-specific pricing or procedures for establishing rates, Customer will pay FREIGHT FLEX the rates, fuel surcharges and accessorial charges included with or referenced by load confirmations or spot quotations issued to Customer by FREIGHT FLEX in connection with an Acceptance, provided that each load confirmation or spot quotation provided by FREIGHT FLEX can be supplemented or revised upon timely written notification by FREIGHT FLEX that is not disputed by Customer within four (4) business hours from such notification.
(2) Fuel surcharges by FREIGHT FLEX or Servicing Carriers cover price variations for diesel fuel based on open-source data as specified or referenced by FREIGHT FLEX in an Acceptance.
(3) Accessorial charges by FREIGHT FLEX or Servicing Carriers cover additional services performed in connection with the actual transportation, including, but not limited to, driver wait time, loading and unloading, cancellation fees, diversion, stop-off in-transit, border crossing fees, etc. The fact that the rate confirmation may specify accessorial charges will not be construed to limit the type or amount of accessorial charges that may be assessed to Customer. Other accessorial charges incurred before or upon delivery may be invoiced to Customer within the time limits stated in Paragraph VIII of these Terms and Conditions after delivery of an individual shipment.
B. Additional Charges Based on Actual Transportation; Mileage Rates
(1) Rates and service confirmations and quotations are good faith estimates based upon information provided to FREIGHT FLEX, but final rates and services may vary based upon the Goods tendered, unexpected circumstances, incorrect or incomplete information, and additional services provided by FREIGHT FLEX or the Servicing Carriers that were not contemplated at the time of tender. Customer acknowledges and agrees that agreed upon rates may, in FREIGHT FLEX’s sole discretion, be revised (subject to Section VI.A.(1) above) to reflect the actual Goods and/or operational characteristics of the shipment that was tendered, and the actual Services required or performed.
(2) If FREIGHT FLEX’s rates are based on mileage, rates will be calculated using predetermined mileage as negotiated or, if none, via the mileage guide (including version) used by FREIGHT FLEX as of the date the Goods in question are physically tendered to a Servicing Carrier retained by FREIGHT FLEX to perform the Services. Mileage guide references used by FREIGHT FLEX will be specified to Customer upon its request.
C. Taxes and Duties Not Included
Unless otherwise expressly stated by FREIGHT FLEX or a Servicing Carrier in an Acceptance, a rate quotation or load confirmation, any federal, local or harmonized sales taxes, or other use or value-added taxes, duties or similar charges are not included in such rates, and Customer will be liable for such taxes, duties or charges.
VII. PAYMENT TERMS
Customer will pay FREIGHT FLEX the applicable rates and charges for the Services without offset within thirty (30) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month (or the highest amount allowed by law, whichever is higher) on any unpaid balance. Customer will also be liable for any expenses, including attorney fees and collection costs/commissions, incurred by FREIGHT FLEX in collecting its rates and charges. In no event will Customer remit payment to any Servicing Carrier directly or otherwise pay any third party with respect to Services provided by FREIGHT FLEX, and any such payment will not relieve Customer of its payment obligations to FREIGHT FLEX.
VIII. OVERCHARGE AND UNDERCHARGE CLAIMS
A. The time limit for Customer or FREIGHT FLEX to file initial claims for alleged undercharges or overcharges related to the Services will be one hundred and eighty (180) days from the date of delivery of the shipment. Failure to file a claim challenging initial charges within that one hundred and eighty (180)-day period will forever bar any action at law for recovery of such charges. The time limit for Customer and FREIGHT FLEX to bring an action at law to collect alleged undercharges or overcharges with respect to the Services will be eighteen (18) months after delivery of the shipment. Failure to bring a suit within such eighteen (18) month period will be a complete and absolute defense against any such claim, regardless of any extenuating or mitigating circumstances or excuses of any nature whatsoever.
B. Customer will provide sufficient information to allow FREIGHT FLEX to investigate and pay or decline any overcharge or duplicate payment claim. Claims will include the name of the claimant, its file number and the amount of the refund sought to be recovered and will be accompanied by the original freight bill along with all other documents or data in the possession of the claimant that substantiate the basis for the claim. Claims for duplicate payment must be accompanied by the original freight bill(s) for which charges were paid and by applicable proof of payment.
IX. ADDITIONAL TERMS FOR INTERMODAL TRANSPORTATION
In addition to the provisions contained elsewhere in these Terms and Conditions, including but not limited to those in Sections VI through VIII above, the following shall apply to any intermodal transportation requested by Customer or arranged by FREIGHT FLEX.
A. Applicability of Rail Carrier’s Published Conditions
(1) All intermodal transportation provided by a Servicing Carrier (each a “Rail Servicing Carrier”) is subject to the terms, conditions, requirements, limitations, restrictions and procedures of the applicable Rail Servicing Carrier’s intermodal directory, rules, policies/procedures, tariff, service/shipping guides or agreements as in effect at the time of shipment and as published on the Rail Servicing Carrier’s website (the “Rail Conditions”).
(2) The Rail Conditions establish limitations of liability, cargo claims procedures and provisions, commodity restrictions, loading, blocking and bracing requirements, indemnification obligations, payment terms, dispute resolution requirements and other important restrictions. Customer should be familiar and in compliance with the provisions of the Rail Conditions before becoming involved in any intermodal transportation movement. By tendering Goods to FREIGHT FLEX for intermodal transportation, Customer, and any person claiming an interest in the Goods or their transportation through Customer, will be conclusively presumed to have agreed to and will be obligated to comply with the Rail Conditions.
B. Customer’s Responsibility for Blocking & Bracing
Customer will ensure that the Goods have been packaged, loaded, blocked and braced within the intermodal container in a manner designed to prevent shifting during intermodal transportation and in accordance with applicable industry standards, including the Intermodal Loading Guide of the Association of American Railroads, the Rail Conditions and other guidelines of the applicable Rail Servicing Carrier.
C. Accurate Weights
Customer will ensure that the weight of the Goods and the intermodal container/trailer will not exceed applicable weight limitations and will be accurately stated in Customer’s shipping instructions.
D. Prohibited and Restricted Goods
(1) Customer will not tender any Goods for intermodal transportation that are designated as prohibited under the Rail Conditions. Prohibited commodities include, but are not limited to, hazardous waste, garbage, explosives, metal coils, scrap metal, sodium compounds or other commodities that would reasonably be expected to contaminate or otherwise render the trailer or container unsuitable for future shipments.
(2) Customer will comply with any special procedures applicable to Goods designated as restricted under the Rail Conditions. Restricted commodities include but are not limited to bulk commodities, rolled paper, household goods, metal banding, dense metal items, rubber shavings, tire fabric, over-dimension loads, currency, postage stamps and mail.
(3) Other commodities that could be considered to pose a safety or health issue, are easily perishable, are considered to be of extraordinary value, or would need temperature protective services may also be designated in the Rail Conditions as restricted commodities and may be subject to limitations or special requirements. Before tendering any such Goods for transportation, Customer will make the required prior arrangements with FREIGHT FLEX, such as obtaining special rates for that commodity, signing any special indemnity or commodity agreement, and agreeing to comply with approved commodity loading and equipment inspection protocols.
E. Cross-Border Issues
Special rules and requirements apply to intermodal shipments crossing borders between the United States and Canada or Mexico. FREIGHT FLEX and the Rail Servicing Carriers will hold shipments at the origin ramp or at intermediate ramps or may prevent the shipment from entering the terminal gate if customs and other documentation is not provided at the time that the shipment arrives at the origin terminal. Customer is responsible for all drayage, loading and unloading charges; storage and equipment use charges (including those resulting from detention of Goods by customs authorities or sufferance warehouses); train set-outs; customs brokerage costs; filing costs; and other costs associated with the government inspections or documentation requirements assessed by the Rail Servicing Carriers with respect to cross-border shipments.
F. Special Intermodal Fuel Surcharge and Accessorial Charges
On intermodal shipments, Customer will pay any applicable intermodal-specific fuel surcharges and/or accessorial charges in FREIGHT FLEX’s standard intermodal fuel surcharge exhibit that are included in the Acceptance issued by FREIGHT FLEX to Customer.
G. Additional Charges
In addition to the intermodal linehaul rates, fuel surcharges and accessorial charges assessed by FREIGHT FLEX, any additional charges levied on FREIGHT FLEX under the Rail Conditions and not accounted for in the Acceptance will be passed through to and will be the responsibility of Customer.
X. ADDITIONAL TERMS FOR FLATBED TRANSPORTATION
In addition to the provisions contained elsewhere in these Terms and Conditions, including but not limited to those in Sections VI through VIII above, the following shall apply to any transportation requested by Customer or arranged by FREIGHT FLEX that requires use of flatbed trailers.
A. Equipment Loading Instructions Before Tender
Customer will provide FREIGHT FLEX with instructions in advance specifying the equipment required to properly secure Customer's freight which may include, but is not limited to, tarp(s), straps, winches, chains, and binders.
B. Additional Charges
Over-dimensional or specialized equipment charges may be assessed by FREIGHT FLEX as specified or referenced in the Acceptance it issues to Customer. Additionally, any applicable government-issued over-dimensional permit costs or bonds will be invoiced to Customer. Permit costs include the actual state/provincial over-dimensional or overweight permit costs, transceiver fees, and administrative costs associated with obtaining the permits/bonds.
XI. ADDITIONAL TERMS FOR LTL OR PARTIAL TRUCKLOADS
Customer acknowledges and agrees that FREIGHT FLEX may co-mingle or combine Customer’s freight with the freight of other third-party shippers in the same trailer or container for LTL or partial truckload movements. All LTL transportation provided by a Servicing Carrier (each a “LTL Servicing Carrier”) is subject to the terms, conditions, requirements, limitations, restrictions and procedures of the applicable LTL Servicing Carrier’s LTL directory, rules, policies/procedures, tariff, service/shipping guides or agreements as in effect at the time of shipment.
XII. CARGO LOSS, DAMAGE AND LIABILITY LIMITATIONS
A. Basis for FREIGHT FLEX’s Liability
FREIGHT FLEX will have no liability for any claims for loss, damage, delay, injury or shortage to any Goods for which it arranges Services except to the extent such claims are directly and proximately caused by FREIGHT FLEX’s gross negligence or willful misconduct.
B. Limited Liability for FREIGHT FLEX’s Negligence
For U.S. and Canadian shipments, in the event that any judgment, ruling or verdict deems that FREIGHT FLEX’s negligence directly and proximately caused a cargo loss, damage, injury or shortage, Customer agrees that FREIGHT FLEX’s liability will be limited to the lesser of: (i) the transportation charges assessed by FREIGHT FLEX and paid by Customer with respect to the Services involving such Goods; or (ii) Five Thousand US Dollars ($5,000.00 USD).
C. Liability of Servicing Carrier
(1) Customer acknowledges and agrees that the actual transportation services performed by the Servicing Carrier are subject to the provisions of any applicable agreement between FREIGHT FLEX and the Servicing Carrier, or to those terms that may be maintained in service guides, bills of lading, or similar documentation maintained by the Servicing Carrier.
(2) Unless higher limits have been established in accordance with Section XII.C, the Servicing Carrier’s liability for loss, damage, delay, injury, or shortage of Goods shall be subject to applicable laws, treaties and conventions, including the terms contained in 49 U.S.C. §§14706 et seq., and shall be limited by mode of transportation or types of Goods as follows:
(a) Truckload, Refrigerated, Flatbed, Partial Truckload, and Rail Servicing Carriers: up to a maximum of one hundred thousand US dollars ($100,000 USD) per occurrence for new items.
(b) Servicing Carriers Providing LTL Transportation: the lesser of: (i) the limitation of liability for the commodity as classified in the most recent edition of the NMFC-100 Classification, subject to a maximum of fifty thousand US dollars ($50,000.00 USD) per occurrence; or (ii) five US dollars ($5.00 USD) per pound per package, subject to a maximum of fifty thousand US dollars ($50,000 USD) per occurrence. For refrigerated LTL transportation, the limitation of liability shall be the coverage provided by the Servicing Carrier.
(c) Intra-Canadian shipments: up to a maximum of two Canadian dollars ($2.00 CAD) per pound or as regulated under Canadian federal or provincial law.
(d) Mexico: Liability as stated in Section XII.D below.
(e) Used or Reconditioned Goods: the lower of the limits set forth in another category in this Section XII.C or $10,000 USD per trailer or container per occurrence. Goods will be considered reconditioned if they have been in previous service and were later reconditioned, regardless of the percentage or value of the new, unused, or reconditioned parts added during the reconditioning process.
D. Cargo Liability in Mexico
For Mexico shipments, neither FREIGHT FLEX nor any Servicing Carrier will have any liability for loss, damage, delay, injury or shortage of Goods or shipments occurring in Mexico. If this geographical liability limitation is judicially or otherwise determined to be ineffective for any reason whatsoever, then the Servicing Carrier’s liability for loss, damage, delay, injury or shortage in Mexico will be limited to the terms (including time limits) of the applicable Mexican law (articles 66, 67, 68 & 69 of Ley de Caminos Puentes y Autotransporte Federal) as published in the Diario Oficial de la Federación on Dec. 22, 1993. FREIGHT FLEX shall have no liability for loss, damage, delay, injury or shortage of Goods or shipments occurring in Mexico under any circumstances.
E. Insurance Coverage
(1) FREIGHT FLEX requires all Servicing Carriers that are motor carriers to maintain $100,000 USD in cargo coverage subject to terms and conditions set forth in Section XII.E(4)(b) below. Any additional insurance must be agreed in writing and approved by FREIGHT FLEX on a per load basis for an additional cost prior to pick up. FREIGHT FLEX is not liable if Customer, for any reason whatsoever, fails to recover a loss in whole or in part from the Servicing Carrier’s insurer under any applicable policy.
(2) Customer is responsible for maintaining proper insurance covering the Goods, both at rest and in transit, including loading and unloading.
(3) FREIGHT FLEX requires all Servicing Carriers to demonstrate:
(a) Automotive or Fleet Liability Insurance in amounts not less than: Bodily Injury/Property Damage $1,000,000 USD per person; $1,000,000 USD per occurrence.
(b) Motor Truck Cargo Insurance in an amount not less than $100,000 USD per truckload.
(c) It is FREIGHT FLEX’s practice to obtain a Certificate of Insurance for each motor carrier it uses as a Servicing Carrier. It is also FREIGHT FLEX’s practice to retain motor carriers as Servicing Carriers only if they demonstrate a minimum of $1,000,000 USD public liability insurance and $100,000 USD cargo insurance. However, FREIGHT FLEX has no duty to obtain, review or read motor carriers’ insurance policies. Nor does it have any duty to discover policy limitations, exclusions or endorsements not specified on the Certificate of Insurance. FREIGHT FLEX likewise has no duty to discover the value of Customers’ Goods or to arrange for Carriers with “adequate insurance coverage” unless (i) it is specifically requested in writing to do so by Customer prior to shipment and on a shipment-by-shipment basis, and (ii) consents in writing to do so as part of the Acceptance it issues to Customer.
F. Defenses to Liability
Neither FREIGHT FLEX nor any Servicing Carrier will be liable for any loss, damage, penalty, delay, injury or shortage of Goods or equipment to the extent due to:
(1) packaging, loading, unloading, blocking, bracing or securing of the Goods;
(2) inherent vice or defect in the Goods transported, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, deterioration of perishable products, or damages caused by heat or cold or altitude;
(3) force majeure events as described in these Terms and Conditions;
(4) an act, omission or default of Customer;
(5) shipments stopped and held in transit at Customer’s request;
(6) shipments stopped and held at an international border crossing by governmental authorities, except as a proximate result of any act or omission by FREIGHT FLEX;
(7) Goods or Services that violate any applicable law or regulation, have not been accurately described, or have been loaded in a trailer or container so that the combined or per-axle weight exceeds applicable weight limits;
(8) loss, damage, delay, injury or shortage occurring before pick-up or after delivery, or
(9) the freezing or overheating of Goods shipped in dry trailers or containers, unless Customer specifically requests freeze and/or heat protection services on or before tendering the shipment to FREIGHT FLEX in accordance with these Terms and Conditions and pays an additional charge for such Services.
XIII. CLAIMS HANDLING AND PROCEDURES
A. Time Limit on Filing Claims and Bringing Suits
Customer must file a written claim for any loss, damage, injury or shortage of Goods within:
(A) nine (9) months of shipment’s delivery date (or of the scheduled delivery date if never delivered) if the loss, damage, delay, injury or shortage occurred in the United States or Canada or
sixty (60) days of shipment’s delivery date (or of the scheduled delivery date if never delivered) if the loss, damage, delay, injury or shortage occurred in Mexico (and the claim is not disallowed under Section XII.D above).
Any lawsuit or other legal action arising from loss, damage, injury or shortage of Goods must be commenced against Servicing Carrier within:
one (1) year and one (1) day of denial of all or any part of such claim if the loss, damage, injury or shortage occurred in the United States or Canada during motor carrier transportation,
one (1) year of denial of all or any part of such claim if the loss, damage, injury or shortage occurred in the United States or Canada during rail transportation, or
one hundred twenty (120) days of denial of all or any part of such claim if the loss, damage,, injury or shortage occurred in Mexico (and is allowed despite Section XII.D above).
Failure to file the claim or initiate the lawsuit within those time periods will waive Customer’s right to recover for such loss, damage, injury or shortage.
B. Documentation of Cargo Claims
(1) FREIGHT FLEX will facilitate the filing of the cargo loss and damage claim with the appropriate Servicing Carrier if Customer requests FREIGHT FLEX to do so and if Customer provides FREIGHT FLEX with sufficient written documentation of the claim within the time limits stated in these Terms and Conditions. Sufficient documentation will include the original bill of lading, evidence of payment of the freight charges (if any), invoices, certifications, photographs, and other documentation requested by the Servicing Carrier.
(2) Customer agrees that any cargo loss, damage or shortage claim filed with FREIGHT FLEX must have a minimum claim amount of one hundred fifty US dollars ($150 USD). Any claim filed by Customer that is less than one hundred fifty US dollars ($150 USD) will be rejected by FREIGHT FLEX. In addition to the standard documentation required to support a cargo claim in the United States, cargo claims involving Services rendered within Mexican territory (regardless of point of origin or destination) must also be supported (if allowable despite Section XII.D above) by a copy of the Servicing Carrier’s carta de porte (which is the confirmation of the shipping instructions with all information necessary for the carrier to perform the service), Customs Declaration, if applicable, and the Inspection or Surveyor’s Report of Damage, if available, for the lost or damaged cargo. These documents may be provided in copy, facsimile or other electronic form. They may also be extracted or excerpted from other documents.
C. Claims Procedures under United States Federal Regulations
Claims will be filed, processed, investigated, and settled in accordance with procedures established by 49 C.F.R. Part 370 (and interpreted by United States courts under federal common law).
D. Concealed Damage; Notations on Delivery Receipt
Customer must report concealed damage in writing to FREIGHT FLEX or the Servicing Carrier within five (5) calendar days from the date of delivery. If the loss, damage, is not noted on the bill of lading or delivery receipt, the Goods are considered to have been received and delivered in good condition; thereafter, Customer will be obligated to offer reasonable evidence that loss, damage, delay, injury, or shortage did not occur while the Goods were in the consignee’s possession.
E. No Offsets
Customer will not withhold or set-off outstanding invoices for claims of loss, damage, delay, injury, or shortage of Goods and will timely pay all invoices in full.
F. Mitigation; Salvage Allowance
Customer is obligated to mitigate its damages for loss, damage, delay, injury or shortage of Goods and is not entitled to abandon the Goods to FREIGHT FLEX or the Servicing Carrier. Customer must promptly provide disposition instructions for handling of damaged Goods. Any claim for loss, damage, delay, injury, or shortage of Goods will nevertheless be reduced by a reasonable salvage allowance (even if Customer does not permit the Goods to be salvaged) and by reasonable storage, equipment use charges or other costs incurred while waiting for disposition instructions, as such salvage allowance and other costs are determined by FREIGHT FLEX in its discretion.
G. Seal Procedures
(1) Unless otherwise agreed by FREIGHT FLEX, Customer is responsible for applying the seal to any trailer or container tendered for Services. For shipments of food or certain other commodities, Customer will apply 1.5 mm diameter or greater cable seals. If the seal originally applied to the trailer or container is intact upon delivery, neither FREIGHT FLEX nor the Servicing Carrier will be liable for shortage or theft unless there is (a) physical evidence of unauthorized entry into the trailer or container while it was in the possession of the Servicing Carrier and (b) proof of actual damage to or loss of Goods. Absent such physical evidence and proof, claimed shortages shall be declined.
(2) Shortage or theft claims must be supported by seal records and actual loading and unloading records. FREIGHT FLEX and the Servicing Carrier shall be absolved of liability for shortage or theft if the seal is broken:
(a) at the direction and under the supervision of a governmental authority and is resealed after inspection by such governmental authority;
(b) because it becomes reasonably necessary to do so to inspect, reposition, or protect the Goods or the trailer/container or to comply with applicable laws or regulations; or
(c) at the direction of the Customer.
(3) The Servicing Carrier will be requested to document the breaking of the original seal and application of a new seal while the Goods are in its custody. A broken seal, missing seal, tampered seal, mismatched seal number or other seal integrity issue alone is not sufficient to support a claim; claimant must provide additional evidence which supports actual loss, damage, shortage or contamination of the Goods. The consignee may not refuse delivery of a shipment, even for food grade loads, due to broken or missing seals unless there is direct physical evidence of product tampering or contamination beyond the broken or missing seal. Food contamination claims must be supported by appropriate quality inspections by a qualified person within the meaning of the Food Safety Modernization Act (“FSMA”) and applicable regulations of the U.S. Food and Drug Administration (“FDA”) outlining the actual loss.
H. Temperature Controlled Shipments (other than Intermodal)
Neither FREIGHT FLEX nor any Servicing Carrier is responsible for any damage or loss to Goods requiring protection from heat or cold (including any Goods regulated by FDA under FSMA) unless Customer, in advance, provides FREIGHT FLEX with written notice and instructions for handling the shipment, including but not limited to the temperature at which the refrigerated trailers should be set during transportation, and an authorized FREIGHT FLEX representative (at the Manager or Director level or higher) has signed the notice and provided special rates for such commodities. A bill of lading will not be considered “notice” of handling requirements and will not be binding.
I. Intermodal Shipments Requiring Protection from Heat or Cold
Neither FREIGHT FLEX nor any Rail Servicing Carrier will have any responsibility whatsoever, either in whole or in part, for any loss or damage resulting from a failure to protect a shipment against heat, cold, or the elements in general, including, but not limited to that arising from any equipment failure, damage, and/or shipment delays. The issuance or inclusion of instructions on shipping documents regarding temperature protection (e.g., shipments requiring tarping, transportation in temperature-controlled containers or other protection from heat or cold) will not be binding on FREIGHT FLEX nor any Rail Servicing Carrier unless and until FREIGHT FLEX or the Rail Servicing Carrier agrees in writing to be bound by such terms.
XIV. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
IN NO EVENT WILL FREIGHT FLEX OR ANY SERVICING CARRIER BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INCOME OR SAVINGS, REGARDLESS OF WHETHER FREIGHT FLEX OR ANY SERVICING CARRIER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES. FREIGHT FLEX’S TOTAL LIABILITY WITH RESPECT TO ANY CLAIMS OR DAMAGES (OTHER THAN CLAIMS FOR LOSS, DAMAGE, INJURY OR SHORTAGE OF GOODS, WHICH SHALL BE GOVERNED BY THE LIMITATIONS IN SECTIONS XII and XIII) ARISING FROM OR RELATED TO SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNT CHARGED BY FREIGHT FLEX WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES AS TO WORKMANSHIP OR FITNESS FOR A PARTICULAR PURPOSE.
XV. FORCE MAJEURE
FREIGHT FLEX and the Servicing Carrier will not be liable for any failure to perform, including failure to timely perform, the Services where such failure is wholly or partially due to an act of God, flood or other natural disaster, war, epidemics, pandemics, government-instituted quarantines, shelter-in place orders, embargoes, fire, weather, explosion, riot, civil commotion, acts of terrorism, closures of highways, marine ports, airports or other transportation infrastructure, restrictions by government or other authority, strikes, lock-outs, failure of suppliers, or to any cause whatsoever that is beyond the direct and exclusive ability of FREIGHT FLEX or the Servicing Carrier to control, or that could not be reasonably anticipated by FREIGHT FLEX or the Servicing Carrier.
XVI. REFUSED OR REJECTED SHIPMENTS; DISPOSAL
On refused, rejected or other shipments where FREIGHT FLEX or the Servicing Carrier have notified Customer that they are unable to deliver a shipment or part of a shipment to its intended final destination, FREIGHT FLEX will be entitled to recover any and all costs in any way associated with the storage of any Goods and will have no liability arising from or related to such storage or its arrangement. At its sole option, FREIGHT FLEX may arrange for deposit of the Goods in a public warehouse or storage facility under the Customer’s name so that storage fees do not accrue against FREIGHT FLEX. If Customer fails to give FREIGHT FLEX instructions for the disposal of undeliverable, refused or rejected shipments within a reasonable time, FREIGHT FLEX may sell or otherwise dispose of the Goods without further liability.
XVII. SEVERABILITY; ENTIRE AGREEMENT
If a court of competent jurisdiction determines that any portion of these Terms and Conditions results in a violation of any law or is invalid or unenforceable, that portion of these Terms and Conditions will be severable and the remaining provisions of these Terms and Conditions will continue in full force and effect. These Terms and Conditions, and any Acceptance, rate quotation, load confirmation or other documents issued by Freight Flex to Customer regarding the Goods, constitute the full and complete understanding and agreement of Customer and FREIGHT FLEX and supersedes all prior understandings on such matters, whether oral or written. FREIGHT FLEX has not made any representation, promise, inducement or statement which is not stated in these Terms and Conditions, and FREIGHT FLEX will not be bound by or liable for any alleged representation, promise, inducement or statement of intention not so stated.
XVIII. NON-WAIVER
Customer’s or FREIGHT FLEX’s delay or failure to insist upon performance of any of these Terms and Conditions or to exercise any of its rights or privileges will not be construed as waiving any such terms, conditions, provisions, rights, or privileges, all of which will continue and remain in full force and effect as if no forbearance or waiver or delay had occurred. Customer’s or FREIGHT FLEX’s consent or approval to any act requiring consent or approval will not be deemed to waive or render unnecessary consent or approval of any subsequent similar act.
XIX. DISPUTE RESOLUTION; CHOICE OF LAW; CHOICE OF FORUM
A. The provisions of Sections XII through XIV of these Terms and Conditions will govern the processing of claims for loss, damage, delay, injury, or shortage to Goods transported, or accepted for transportation in intrastate, interstate or foreign commerce. No state laws shall apply to cargo claims in any manner. FREIGHT FLEX and Customer agree to cooperate fully with one another in connection with the resolution of any dispute that may arise in connection with the Services provided by FREIGHT FLEX.
B. If representatives of FREIGHT FLEX and Customer are unable, after reasonably diligent effort, to resolve any dispute or controversy, the matter may, by mutual agreement, be referred to binding arbitration, or either party may resort to litigation. Any civil action shall be brought by either party exclusively in the federal and/or state courts serving Tarrant County, Texas; and, such courts shall have jurisdiction over the parties and venue will be proper for such suits in Tarrant County, Texas. Except to the extent that preemptive provisions of federal transportation law apply, the laws of the state of Texas, without regard to its choice or conflict of laws rules, will govern these Terms and Conditions and the Services contemplated herein. Each Party hereby irrevocably waives any and all rights it has or may acquire in the future to request a trial by jury in any action or proceedings.
XX. INDEPENDENT CONTRACTORS; RELATIONSHIP BETWEEN CUSTOMER, FREIGHT FLEX, AND SERVICING CARRIERS
A. FREIGHT FLEX’s and Customer’s relationship is non-exclusive and is entered between them as independent contractors engaged in separate and distinct businesses. Their respective employees are under the exclusive management and control of the Party employing such persons. The Servicing Carrier engaged by FREIGHT FLEX will have sole and exclusive control over the manner in which it performs the actual transportation, including the operations of all vehicles and equipment used to perform the transportation. The Servicing Carriers and their drivers, employees or representatives will not, under any circumstances, be deemed employees or agents of FREIGHT FLEX or involved in any kind of joint venture and/or partnership with FREIGHT FLEX.
B. The foregoing notwithstanding, FREIGHT FLEX and the Servicing Carriers may agree to designate FREIGHT FLEX to act as the Servicing Carrier’s agent for the sole purpose of collecting the agreed-to freight charges, fuel surcharges and accessorial charges from Customer related to the Services. Except for such specific designation, none of the provisions of these Terms and Conditions, or any act or omission of either Customer or FREIGHT FLEX, will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between or among Customer, FREIGHT FLEX, any Servicing Carriers, or employees or agents of any of the foregoing.
XXI. OPERATIONS OF SERVICING CARRIERS
FREIGHT FLEX shall arrange for all physical transportation Services to be provided under written agreements between itself and Servicing Carriers, or under those carriers’ written and published service guides, which shall:
A. Require the Servicing Carrier to (1) specify the type, issuing agency and number for each license or authorization necessary for the Servicing Carrier to perform such Services, (2) notify FREIGHT FLEX of any change, revocation or suspension of such licenses or authorizations, and (3) notify FREIGHT FLEX of any change in the Servicing Carrier’s FMCSA safety rating.
B. Prohibit the Servicing Carrier from subcontracting or “double brokering” any such Services to another provider without advance written permission from FREIGHT FLEX as to specific shipments or a specific series of shipments.
C. Require the Servicing Carrier to issue invoices solely to FREIGHT FLEX for its Services, and to look solely to FREIGHT FLEX for payment of such invoices.
D. Require FREIGHT FLEX to review, process, pay or dispute such invoices within specified times.
E. Prohibit the Servicing Carrier from asserting any possessory lien, general lien or other security interest in the Goods against FREIGHT FLEX, the Customer or its consignees/consignors, and from pursuing any claim in the nature of recourse against those persons, in the absence of material breach by FREIGHT FLEX of the foregoing Section XXI.D.
G. Require the Servicing Carrier to issue, sign and accept a bill of lading in a form approved by FREIGHT FLEX for the shipment.
H. Require the effective period of any written contract between FREIGHT FLEX and the Servicing Carrier to be subject to annual renewal and to termination with or without cause by written advance notice from either FREIGHT FLEX or the Servicing Carrier to the other party to such contract.
I. Require that in the event of any conflict between these Terms and Conditions on one hand and, on the other hand, a contract or a written and published service guide applicable between FREIGHT FLEX and a Servicing Carrier, the conflict shall be resolved in favor of these Terms and Conditions except as specifically stated in such contract or service guide.
XXII. CREDIT, BILLING AND PAYMENT TERMS
A. All Customers must obtain credit approval from FREIGHT FLEX before FREIGHT FLEX will provide them with Services. In order to obtain credit approval, Customers must complete the credit application form attached to these Terms and Conditions as Appendix C. Any exception must be signed off by an officer of Freight Flex.
B. Unless otherwise agreed in writing by the Parties, credit terms shall be Net 30 Days following email transmission by FREIGHT FLEX of its invoice to the designated accounts payable email address provided by Customer in its credit application form.
C. If Customer uses third party payment services, Customer ultimately remains responsible for timely payment of invoices. Third party payment details must be disclosed by Customer in its credit application form and approved in writing by FREIGHT FLEX.
D. Invoices by FREIGHT FLEX to Customer relating to a shipment accepted by FREIGHT FLEX shall include (1) all amounts billed by Servicing Carriers for freight charges, fuel surcharges and accessorial charges relating to the Goods, and (2) all commissions and fees charged by FREIGHT FLEX for such shipments, in each case as per prior Acceptances, agreements, rate quotations or load confirmations issued to Customer by FREIGHT FLEX or Servicing Carriers and agreed to by Customer in accordance with these Terms and Conditions. All undisputed amounts billed by FREIGHT FLEX and Servicing Carriers shall be paid in full by Customer to FREIGHT FLEX in accordance with Section XXII.B above. Disputed amounts shall be governed by Section XIX of these Terms and Conditions.
E. FREIGHT FLEX reserves the right, at any time and at its sole discretion, to refuse, increase, decrease or place a hold on credit issued to Customer.
XXIII. USE OF FREIGHT FLEX WEBSITE
CUSTOMER AGREES THAT ITS USE OF THIS WEBSITE OF FREIGHT FLEX, INCLUDING THE FREIGHT FLEX WEB PORTAL, THESE TERMS AND CONDITIONS, APPENDICES HERETO, AND ANY OTHER SITE HYPERLINKED HERETO (COLLECTIVELY, “THIS SITE”), SHALL BE AT CUSTOMER’S OWN RISK. NEITHER FREIGHT FLEX NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, PARTNERS OR JOINT VENTURERS (“FREIGHT FLEX PARTIES”) SHALL BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM USE OF THIS SITE. THIS EXCLUSION OF LIABILITY EXTENDS, WITHOUT LIMITATION, TO ANY LOST REVENUES, LOST PROFITS, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA FROM CUSTOMER’S ACCOUNTING OR DATA PROCESSING SYSTEMS, ARISING OUT OF THE USE OR MISUSE OF THIS SITE OR FROM CUSTOMER’S INABILITY TO USE IT. THIS EXCLUSION EXTENDS TO CLAIMS BY CUSTOMER AND TO RELATED CLAIMS BY THIRD PARTIES, EVEN IF FREIGHT FLEX OR FREIGHT FLEX PARTIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE AND TO PURSUE ANY CLAIMS RELATING TO SPECIFIC SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS.
APPENDICES
A Rate Quotations and Load Confirmations in Effect from Time to Time
B Credit Application Form for Customers