CUSTOMER TERMS AND CONDITIONS – CT-AA (eff. 5/6/2020)
Please read these Customer Terms and Conditions carefully before utilizing the services of Clever Transco, LLC (“CT”). These Customer Terms and Conditions (these “Terms”) as well as the terms and conditions of any CT-provided rate quote/confirmation, if any, apply to the arrangement of transportation services (“Services”) by CT. These Terms set forth the rights and obligations of CT and the Customer (defined below). By requesting CT to provide the Services for a freight rate, Customer expressly accepts these Terms and warrants that acceptance of these Terms has been authorized by a representative of Customer as of the date the Services were first provided to Customer by CT. CT may change these Terms at any time without notice to Customer. The changed Terms shall be effective immediately as of the date of said change.
I. DEFINING PARTIES
A. CT: “CT” is a broker of motor carriage as the term “Broker” is defined in 49 U.S.C.
§ 13102(2) and, as such, CT is an entity that, for compensation, arranges, or offers to arrange, the transportation of goods by an authorized motor carrier or rail transportation provider. CT is not a motor carrier or freight forwarder and under no circumstances does CT undertake liability for loss, damage, or delay to cargo.
B. Customer: “Customer” means the person or entity at whose request and/or for whose benefit CT provides any Services. Customer can include any third party logistics provider, shipper, consignor, consignee, beneficial cargo owner, or any other party or its agent acting on behalf of such person or entity with interest in the shipment.
C. Carrier: “Carrier” shall mean motor carrier, including its drivers and independent owner operators, rail carrier or rail transportation service provider, intermodal equipment provider, ocean and air carrier (including non-vessel operating common carriers and indirect air carriers), warehouse operator, or other person or entity that provides transportation, storage, handling or related services to the cargo of the Customer at the request of CT.
II. BILLING AND PAYMENT:
A. All rates quoted by CT to Customer shall be quoted subject to and in reliance on the applicability of the Terms herein and in reliance on the Customer providing accurate information as to the nature of each shipment including, but not limited to, weight, pallet count, commodity, appointment dates and times, accessorial charges, temperature-settings, where applicable, and special handling instructions.
B. Customer agrees to provide CT with accurate information as to each shipment for which Customer requests CT to arrange transportation. Any special handling or delivery requirements pertaining to a shipment must be addressed by Customer in writing to CT prior to shipment. In the event a Carrier arranged by CT reports that the nature of any shipment is contrary to the information provided by Customer to CT, Customer shall be responsible for any additional charges assessed by the Carrier or CT due to deviation from the information provided by Customer.
C. In the event that CT accepts and provides Services to Customer before reaching an agreement with Customer on pricing, Customer agrees to pay CT the last pricing quoted by CT to Customer for the particular lane and/or shipment or charged by CT to Customer on a reasonably similar lane and/or shipment or, in the event that no previous pricing has been provided by CT on the same or substantially similar lane or service , Customer agrees to pay CT based on CT’s current market rates.
D. Customer shall be liable for all charges payable on account of such Customer’s shipment including, but not limited to, all line haul charges, lumper fees, and accessorial charges.
E. CT agrees to invoice Customer and to provide a signed proof of delivery via e-mail for each shipment, and Customer agrees to accept CT invoices via e-mail.
F. Customer agrees to pay CT no later than 30 days following receipt from CT of an invoice and proof of delivery. Customer agrees to pay interest at the rate of 1½% per month or the highest allowable interest rate, if lower, on all overdue balances. All payments shall be made in United States dollars.
G. Customer agrees that Customer shall report to CT in writing any discrepancies or objections to the amounts invoiced by CT no later than 30 days following receipt of such invoice and proof of delivery. To the extent Customer fails to object or otherwise report any discrepancies within 30 days, it shall be understood that Customer has agreed that Customer has been properly invoiced and Customer waives any further objection or excuse for non-payment of said invoice.
H. Customer agrees to be responsible for and to pay CT additional charges incurred as a result of, but not limited to, the follow circumstances:
1) If the original quoted amount was based upon the incorrect information provided by the Customer and the actual charges incurred increase as a result, or
2) If additional services by the Carrier were required in order to complete the transportation services to the benefit of Customer, or
3) If the Customer authorized Carrier to perform the pickup, transportation and delivery functions other than contemplated by the bill of lading.
I. Customer agrees that Customer shall be responsible for all court costs and reasonable attorneys’ fees incurred by CT arising out of any breach by the Customer of any Terms stated herein including, but not limited to, Customer’s failure to pay amounts due to CT for services provided herein.
J. Customer and consignee, holder, or assignee on any bill of lading shall be jointly and severally liable for all unpaid fees for services provided under this Agreement. When CT is instructed to collect charges from any person or entity other than Customer, Customer shall remain liable for the charges and interest if CT is not paid.
K. Customer is responsible for all costs, including without limitation, forklift service, tow truck service, storage or recovery/release fee, or crane service in regards to the freight Customer has requested CT to arrange for transport.
III. INSURANCE:
A. CT agrees that CT shall enter into a Broker-Carrier Agreement with all Carriers arranged by CT which shall require said Carriers to have the following insurance:
1. Commercial Automobile Liability Insurance, with a combined single limit of not less than ONE MILLION DOLLARS ($1,000,000.00) (U.S. Dollars), each occurrence including coverage for any and all liabilities for personal injury (including death) and property damage arising out of the use or operation of the Carrier’s equipment.
2. Cargo insurance in an amount not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per shipment.
3. Commercial General Liability, with a combined single limit of not less than ONE MILLION DOLLARS ($1,000,000.00) bodily injury and property damage per occurrence.
B. CT further agrees that CT shall maintain a contingent cargo policy with limits in the amount of $100,000.00.
C. Customer Insurance: Customer shall be responsible for maintaining its own property insurance covering the Goods while in transit or in temporary storage and including loading and unloading where the value of such goods exceeds $100,000.
IV. CLAIMS FOR INJURY TO CARGO AND OTHER CLAIMS
A. Cargo Claims. Customer understands CT’s Claim Department only facilitates Cargo Claims for loads that have been transported by a Carrier arranged by CT. Customer acknowledges and agrees that CT is not liable for claims arising out of injury to cargo including as a result of loss, damage, or delay. CT agrees to assist Customer in pursuing Cargo Claims on Customer’s behalf.
B. No Right to Setoff. Customer agrees to not withhold payment to CT for services provided herein because of any pending cargo claims. Customer agrees that CT has no obligation to assist Customer in the filing of claims arising out of injury to cargo on behalf of Customer if Customer has not paid CT’s invoices current and in full.
C. Broker Discretion to Pay. In the event CT elects in its sole and absolute discretion to pay a claim for freight loss or damage (even though CT has no contractual, regulatory, or statutory obligation to do so) upon such payment, Customer automatically assigns and transfers to CT, without further action required, all of Customer’s rights and claims against any and all parties (including the Carrier) that may be liable for the freight loss or damage. Where CT elects to pay aclaim and Customer assigns its rights to CT, Customer agrees to provide such documents and other assistance as necessary to enable CT to prosecute its claim.
D. No Consequential Damages. IN NO EVENT SHALL BROKER HAVE ANY LIABILITY FOR NOR SHALL CUSTOMER HAVE A CLAIM OR REMEDY AGAINST BROKER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNTIVE DAMAGES, OR FOR ANY LOSS OF PROFITS OR SAVINGS, LOSS OF USE OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS.
E. If events or circumstances, including Customer’s or its consignee’s failure to take delivery, occur that affect performance, CT will take reasonable steps to obtain Customer’s further instructions. If, for whatever reason, CT does not receive timely instructions, or CT, in its sole discretion, determines that compliance with such instructions is impracticable, CT may:
a) arrange for storage of, or store, the Goods at the sole risk and expense of Customer, or;
b) authorize any Carrier to abandon transportation and make the Customer’s cargo or any part of them available to Customer at a place that is reasonable under the circumstances. In the event that any shipment is refused or remains unclaimed at destination or any transshipping point in the course of transit or is returned for any reason, Customer will nevertheless pay CT for all charges and expenses in connection therewith.
V. SERVICE TERMS:
A. Cross Border Documentation. Customer is responsible for all border crossing documentation and must submit to CT or agent prior to crossing. Neither CT nor any Carrier arranged by CT shall be responsible for any delays related to border or customs agents, etc. and Customer agrees to pay any accessorial charges incurred by CT or the Carrier arranged by CT relating to such delays.
B. Hazmat Shipments: CT does not accept or arrange for transportation of Hazmat shipments. To the extent Customer nevertheless tenders such a shipment, Customer shall comply with all applicable laws and regulations relating to the transportation of such materials as defined in 49 CFR parts 172 and 173. Customer shall be solely responsible for determining the hazard class of a particular Hazmat shipment, transloading Hazmat shipments, marking and labeling packages for Hazmat shipments, preparing and reviewing shipping papers for compliance with applicable regulations, certifying that the Hazmat shipment is in proper condition for transportation in conformance with regulations, loading, blocking, and bracing Hazmat packages in a freight container or transport vehicle, segregating Hazmat packages in a freight container or transport vehicle from incompatible cargo, selecting, providing, or affixing placards for a freight container or transport vehicle to indicate that it contains a hazardous material, and providing emergency response information for Hazmat shipments. No transportation of Hazmat shipments arranged pursuant to this Agreement shall be deemed offered for transportation by CT. Customer shall indemnify and hold CT harmless from any penalties or liability of any kind, including reasonable attorneys’ fees, arising out of the Customer’s failure to comply with applicable Hazmat laws and regulations, and indemnify CT for reasonable attorneys’ fees incurred in pursuing indemnity under this section.
C. Reasonable Dispatch. Unless arranged or agreed upon, in writing, prior to Customer’s request for shipment, CT is not bound to arrange transport of a shipment by a particular schedule or in time for a particular market.
D. Force Majeure. Customer agrees that neither CT nor Carriers arranged by CT shall be liable for loss, damage, delay, or failure to perform any obligation resulting from circumstances beyond their control, including but not limited to any fire, explosion, act of God (including floods, hurricanes, tornadoes, earthquakes, severe weather conditions and natural disasters); strike, lockout or labor shortage or disturbance; war, terrorism, embargo, quarantine, riot, civil disobedience, hijacking or robbery; congestion, derailment or service issues affecting the Carriers; closing or disruptions affecting highways, rail networks, ports, air traffic or other transportation systems; the acts of any Government Authority or customs inspection requirements; acts or omissions of Customer; or any other cause outside of the reasonable control of CT or the Carrier.
E. Receipts and Bills of Lading. For all shipments moving intermodally or over the road, insertion of CT’s name on the Bill of Lading as the “carrier” will be for Customer’s convenience only and will not imply that CT is actually a motor carrier or otherwise change CT’s status to that of a motor carrier. To the extent CT’s name is inserted as the motor carrier on any bill of lading, Customer agrees to indemnify and hold harmless CT from any claims, expenses, including attorneys’ fees, damages and losses, arising out of Customer’s or any third party’s designation of CT as a motor carrier on the bill of lading.
F. Authority of Customer. For any shipment arranged by CT for Customer, Customer warrants that it is either the owner or the authorized agent of the owner of the cargo for which Customer requests CT to arrange transportation and that Customer has the authority to, and does, accept these Terms for itself and where applicable, as agent for and on behalf of the owner and any other person involved in the transportation.
G. Permits. Customer will obtain all necessary permits and authorizations necessary to transport the Goods, including but not necessarily limited to, overweight and overdimension permits and export and import licenses and permits, and Customer agrees to comply with all applicable laws, including, but not necessarily limited to, any prohibitions on selling to any person on a U.S. or Canadian export control list.
H. Independent Contractor Status. CT is not an agent for the Carrier or the Customer under any circumstances and is an independent contractor. Customer stipulates and agrees that Customer neither exercises nor retains control or supervision over CT, its operations, or the Carriers arranged by CT.
VI. INDEMNIFICATION
A. “Claims” mean any and all liabilities, claims, losses, suits, actions, costs, fines, penalties, expenses (including attorney’s, paralegal and expert witness’ fees, and other costs of defense, investigation and settlement), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage, environmental damage, or any combination thereof, suffered or claimed to have been suffered by any person or entity as well as the costs of enforcing indemnification obligations and costs of containment, cleanup and remediation of spills, releases or other environmental contamination.
B. Customer will defend, indemnify and hold CT and its employees, officers, owners, members, managers, and agents harmless from and against any and all Claims arising out of Customer’s acts or omissions where such Claim is caused by (1) the negligence or intentional misconduct of Customer; (2) Customer’s or its employees’ or agents’ violation of applicable laws or regulations; (3) Customer’s or its employees’ or agents’ failure to comply with these Terms; (4) Customer’s or its employees’ or agents’ failure to comply with obligations imposed by underlying Carriers; (5) Customer’s breach of any warranty or obligation contained herein or under any other agreement between Customer and CT; or (6) CT’s compliance with or reliance on Customer’s instructions; except in each case to the extent such Claim is the result of the sole negligence or other wrongful conduct of CT.
VII. CONFIDENTIALITY.
Customer acknowledges that by utilizing the services of CT subject to these Terms, Customer may obtain access to confidential information of CT including, but not limited to, names of carriers, freight and brokerage rates, amounts received for brokerage services, availability of carriers, vendor contact information, other financial and pricing information, and other information that constitutes a “Trade Secret” as defined under the Illinois Trade Secrets Act, 765 ILCS 1065/1 et seq. and other State trade secrets acts) concerning the business, customers, clients, contacts, prospects, and assets of CT that is unique, valuable and not generally known outside CT and which is obtained from CT while contracting with CT under these Terms (“Confidential Information”). Customer will not, at any time, directly or indirectly use, divulge, furnish, or make accessible to any person any Confidential Information, but, instead, will keep all Confidential Information strictly and absolutely confidential. In the event of a violation of this provision, Customer agrees that a remedy at law may be inadequate and that CT shall be entitled to an injunction restraining Customer from further violation of this Confidentiality term and Customer shall be responsible for all costs and expenses incurred, including reasonable attorneys’ fees.
VIII. GOVERNING LAW AND FORUM
These Terms and all services provided by CT will be deemed to have been drawn in accordance with and performed in accordance with the statutes and laws of the State of Illinois and in the event of any disagreement or dispute, the laws of Illinois will apply, without regard to its choice or conflict of law, and suit must be brought exclusively in the State or Federal Courts located in the County of DuPage or County of Cook, Illinois. Customer hereby waives any objections to jurisdiction and/or venue with regard to any matter brought in the State or Federal Courts of DuPage and/or Cook counties pursuant to this paragraph.