PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. By agreeing to use the services of Action Transportation, Inc. and its affiliated entities, Customer signifies its assent to these Terms and Conditions and their application to all services provided by Action Transportation, Inc. If you are acting on behalf of an entity, then you represent that you have the authority to enter into this Agreement on behalf of that entity.
1. Service
Action Transportation, Inc. (hereinafter "BROKER") agrees to provide transportation brokerage services for CUSTOMER's freight pursuant to these terms and conditions of service. It is understood that BROKER's responsibility shall be limited to arranging for transportation of CUSTOMER's freight as a broker of freight transportation, as that term is defined by 49 U.S.C. § 13102(2).
2. Customer's Responsibilities
Shipping Instructions. CUSTOMER shall be responsible for providing BROKER with timely and accurate delivery instructions and description of the cargo, including weight, dimensions, any special handling requirements, for any shipment.
Hazardous Materials. CUSTOMER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR § 172.800 and § 173 et seq. to the extent that any shipments constitute hazardous materials. CUSTOMER is obligated to inform BROKER immediately if any such shipments do constitute hazardous materials. CUSTOMER shall defend, indemnify and hold BROKER harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of CUSTOMER's failure to comply with applicable hazardous materials laws and regulations.
Freight. CUSTOMER shall be primarily responsible for the payment of all carrier charges, including freight and accessorial charges, for the shipments.
Classification. CUSTOMER shall be responsible for the accurate freight classification for all shipments. In the event CUSTOMER places a shipment via Action Transportation, Inc's web portal, CUSTOMER shall be responsible for the actual freight classification as determined by the carrier, including any corresponding freight charges.
3. Freight Carriage
BROKER shall use reasonable care in its selection of third parties to perform the transportation of CUSTOMER's freight. In the performance of its brokerage duties hereunder, BROKER has entered into, or may enter into, agreements with entities which will perform the carriage and/or freight forwarding services for the transportation of CUSTOMER's freight. It is expressly understood that BROKER does not assume responsibility as a carrier or freight forwarder of cargo under said agreements and CUSTOMER expressly acknowledges that BROKER does not assume such responsibility as a carrier.
4. Receipts and Bills of Lading
It is understood that the insertion of BROKER's name on the bill of lading and/or delivery receipt shall be for the convenience of the CUSTOMER or carrier only and shall not change BROKER's status as a Transportation Broker or make BROKER liable as a carrier of the shipment.
5. Payments
The compensation of BROKER for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by BROKER or CUSTOMER to transport CUSTOMER's shipments and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by BROKER from carriers, insurers and others in connection with the shipment. BROKER shall invoice CUSTOMER for its services within thirty (30) days of shipment. If rates are negotiated between BROKER and CUSTOMER and not otherwise confirmed in writing, such rates shall be considered "written", and shall be binding, upon BROKER's invoice to CUSTOMER and CUSTOMER's payment to BROKER. CUSTOMER agrees to pay BROKER's invoice within thirty (30) days of invoice date without deduction or setoff. In any dispute involving monies owed to BROKER, BROKER shall be entitled to all costs of collection, including reasonable attorney's fees and interest at 15% per annum or the highest rate allowed by law, whichever is greater. The confiscation or detention of a shipment by any governmental authority shall not affect or diminish the liability of CUSTOMER to BROKER to pay all charges or other money due promptly on demand.
6. Independent Contractor
At all times, BROKER shall be considered an independent contractor with respect to the performance of all services performed on behalf of CUSTOMER and neither BROKER nor anyone employed by BROKER shall be deemed, subject to the filing of claims on behalf of CUSTOMER as set forth in paragraph 8 below, for any purpose to be the employee, agent, servant or representative of CUSTOMER in the performance of any service or part thereof in any manner dealt with hereunder. It is understood that BROKER is not an agent for the carriers and shall remain at all times an independent contractor. BROKER does not exercise or retain any control or supervision over the carriers, their operations, employees, or agents.
7. Cargo Loss, Damage or Shortage
BROKER shall not be liable for the acts or omissions of third parties, including, but not limited to, carriers, warehousemen, customs brokers, and other entities performing services related to the transportation of the freight. All claims for cargo loss shall be asserted only against the carrier(s) or entities responsible for the transportation. Notwithstanding the foregoing, upon request from CUSTOMER, BROKER may act as agent for CUSTOMER solely for the purpose of filing claims on CUSTOMER's behalf against the responsible third party. CUSTOMER agrees to notify BROKER immediately in the event of any cargo loss, damage or shortage. In the event BROKER is to act as CUSTOMER's agent with regard to the filing and/or processing of the claim against the responsible third party, CUSTOMER shall provide BROKER with all documentation requested by BROKER to assist in the filing and/or processing of the claim, and will otherwise fully assist and cooperate with BROKER with regard to the claim. Upon request by CUSTOMER, BROKER shall assign its rights against the responsible third party to CUSTOMER. Nothing herein shall be construed to restrict any right or cause of action CUSTOMER may have against any carrier or other responsible third party.
8. Disclaimers; Limitation of Liability
Except as specifically set forth herein, BROKER makes no express or implied warranties in connection with its services; CUSTOMER agrees that in connection with any and all services performed by BROKER, BROKER shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to CUSTOMER, including loss or damage to CUSTOMER's freight; in any event, BROKER's liability shall be limited to $50.00 per shipment or transaction; in no event shall BROKER be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, including any and all loss or damages arising from delay of services.
Liability. It is expressly understood that BROKER shall assume no liability for loss or damage to cargo for which BROKER acted as a broker as that term is defined by 49 U.S.C. § 13102. In the event BROKER performs other services relating to the transportation of CUSTOMER's freight, BROKER'S liability shall be limited to $50 per shipment, or the limitation as set forth in the applicable bill of lading or transport document, whichever is less.
CUSTOMER understands and acknowledges that the carrier(s) performing the transport of the freight may limit its liability, by way of tariff, contract or otherwise, unless the value of the freight is declared and additional freight charges are paid. If CUSTOMER intends to declare value and pay the corresponding higher freight it shall so notify BROKER in writing prior to shipment.
9. Insurance
Unless requested to do so in writing and confirmed to CUSTOMER in writing, BROKER is under no obligation to procure insurance on CUSTOMER's behalf; in all cases, CUSTOMER shall pay all premiums and costs in connection with procuring requested insurance. CUSTOMER will be responsible to provide their own Insurance for all loads into Mexico.
10. Indemnification
CUSTOMER agrees to defend, indemnify and hold BROKER harmless against any claims, suits, demands, actions, damages, expenses, including attorney's fees, arising out of or relating to: (a) CUSTOMER's responsibilities under these terms and conditions, including, but not limited to, the payment of rates and/or accessorial charges to the carriers; (b) any claims and/or liability arising from the transportation of CUSTOMER's cargo and/or any conduct of CUSTOMER, which violates any Federal, State and/or other laws. The obligation to defend shall include all costs of defense as they accrue. In addition, CUSTOMER shall defend, indemnify and hold BROKER harmless for any claims, suits, demands, actions, damages, expenses, including attorney's fees relating to any loss, damages, or injury, of whatever kind, caused by the freight, regardless of whether CUSTOMER packaged the freight and/or loaded the freight onto the motor carrier.
11. Entire Agreement
Except as otherwise set forth herein, these terms and conditions constitute the entire agreement intended by and between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.
12. Severability / Survivability
In the event that the operation of any portion of these terms and conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the terms and conditions shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of this Agreement for any reason.
13. Nonwaiver
Failure of either party to insist upon performance of any provision of these terms and conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the provisions hereof, shall not be construed as thereafter waiving any such provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
14. Choice of Law and Venue
All questions concerning the construction, interpretation, validity and enforceability of this Agreement, shall be governed by and construed and enforced in accordance with the laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply. In the event of any disagreement or dispute with regard to any services provided hereunder same shall be brought in the federal or state courts located in Jackson County, Oregon. CUSTOMER expressly agrees to the exclusive jurisdiction of the Federal and State courts in Jackson County, Oregon for any such suit or claim and waives any objection to personal jurisdiction in such courts.
