STANDARD TERMS AND CONDITIONS

These Standard Terms and Conditions (“Conditions”) constitute a legally binding contract between Updike Distribution Logistics, LLC (“Updike” or “Company”) and customer (As defined below). These Conditions apply to any and all services Updike provides, including, but not limited to, providing and/or arranging for transportation, loading, transloading, handling, storage, warehouse, brokerage and/or related services (the “Services”). These Conditions supersede any prior agreement, tariff, or understanding and cannot be altered, amended, or waived unless in a writing signed by an officer of both updike and customer.

the term “Customer” refers to a person or entity for whom the Company provides any Services, including shippers, consignors, consignees, receivers, third-party logistics providers, holders of an applicable bill of lading, any person or entity with a present or future interest in goods shipped, and/or their agents. Updike Distribution Logistics, LLC is an authorized motor carrier with the FMCSA under docket number MC-651505 with offices at 435 S. 59th Avenue, Suite 100, Phoenix, Arizona 85043. Updike Distribution Logistics, LLC is also registered as a transportation freight broker with the FMCSA under docket number MC-669958, with offices at 435 S. 59th Avenue, Suite 100, Phoenix, Arizona 85043. Updike may be referred to herein as “Carrier” in reference to Services Updike may provide as a motor carrier and referred to as “Broker” in reference to Services Updike may provide as a transportation freight broker. Updike and Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” herein.

customer acknowledges and agrees that in a response to any request for service that updike may operate pursuant to its motor carrier authority or pursuant to its broker authority and that The determination as to which such authority updike provided Services pursuant to will be made by updike in its sole discretion.  to the extent updike provides services in its capacity as a broker for any given customer shipment, customer hereby waives any argument or claim it may have otherwise had that updike operated as a motor carrier.

Scope of Services.

  1. Updike carrier services. Requests for Services may be evidenced by bills of lading, waybills, delivery receipts and associated documentation including, but not limited to, updike-issued service quotations, rate sheets and load confirmations (“Shipping Documents”).    these conditions apply even if no shipping documents have been issued, in which case, updike’s then-current rates will apply to the services. Prior to tendering any shipment to updike, customer shall (i) ensure that the Materials are properly packed for shipment as may be necessary to withstand the loss or damage associated with the ordinary risks of transportation, (ii) properly describe the Materials in the applicable Shipping Document, (iii) ensure that the shipment is properly labeled and that the label or labels are securely attached to the shipment in a clear and prominent location on the outer surface of the shipment, (iv) declare the proper weight of the shipment, (v) ensure that the recipient’s full proper address has been entered on the applicable Shipping Document, and (vi) ensure that all information provided with respect to Materials is accurate and complete in all regards.  Carrier’s obligations with regard to any shipment shall not begin until Carrier assumes complete custody and control of the goods at the origin and terminate upon delivery and relinquishment of custody of the goods at the DESTINATION. In the event transportation services are or are expected to undergo any hindrance, risk, delay, or interference of any kind, including, but not limited to, labor unrest, governmental action, acts of terror, war, riots, severe weather, ice, road closures, quarantine, or the condition of the goods, at any time, Carrier may, without notice to Customer:
    • abandon all or part of the goods to the Customer’s disposal at any place the Carrier determines is safe and convenient (where possible), at such time Carrier’s responsibilities for such goods shall cease; or
    • subject to the Carrier’s continuing right to abandon the goods under (a) above, continue the transportation services. Notwithstanding, Customer shall pay full freight charges on goods received for transportation and shall pay any additional expenses arising from any circumstances described above.
  2. updike broker services. Updike’s sole responsibility with respect to providing broker services shall be to make reasonable efforts to place CUSTOMER’s loads with third-party motor carriers (“Servicing Motor Carriers”) who are (i) authorized to perform the services required by CUSTOMER; (ii) do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that provide reasonable assurance that they possess all insurance coverages required by applicable law.  BROKER makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by CUSTOMER.  CUSTOMER understands and agrees that updike functions as an independent entity, and not as a carrier, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of shipments tendered to BROKER shall be performed by Servicing Motor Carriers. 

Route. Carrier and, as applicable, servicing motor carriers, in their sole discretion, may perform transportation services in any reasonable manner and by any route, means, or method and do not guarantee delivery at any particular time or subject to any contract or requirement of Customer apart from the Conditions contained herein.

Rates and payment. For all loads, regardless of type or classification, transit times are estimates only and are not guaranteed. For all loads, regardless of type or classification, pickup dates are not guaranteed. Customer accepts unconditional liability for all charges, fees, and costs incurred for Services rendered.  updike will charge and CUSTOMER will pay the rates and charges set forth shipping documents issued by and acceptable to updike or as otherwise agreed for services provided by updike without offset.  CUSTOMER agrees to pay updike without offset and within thirty (30) days of service, with interest accruing monthly at a rate of two percent (2%) per month on any unpaid balance.  CUSTOMER shall also be liable for any expenses, including attorney fees and court costs, updike incurs in collecting its rates and charges.  If any information provided by CUSTOMER is inaccurate or incomplete, CUSTOMER acknowledges and agrees that agreed upon rates may, in updike’s sole discretion, be revised to reflect the goods actually tendered. CUSTOMER shall also be responsible for any additional accessorial charges which were not anticipated by updike at the time updike agreed to transport the shipment pursuant to its motor carrier authority or arranged for services with a Servicing Motor Carrier pursuant to its broker authority or which were not otherwise included in the rate set forth in the shipping documents.  Without limiting the foregoing,  Customer’s charges for Services are calculated on the basis of particulars provided by Customer, and may include costs related to transportation, fuel, storage, special delivery, waiting time, tolls, layovers, and other applicable accessorial charges. Charges may also include fees, penalties, duties, assessments, fines, and/or taxes assessed by government authorities. Updike reserves the right to re-invoice Customer in the event additional services are required due to incorrect information provided by Customer or Customer authorization of additional services.  In no event will updike have any responsibility for, and CUSTOMER will defend, indemnify, and hold updike harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of CUSTOMER is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities.  Without limiting the generality of the foregoing, updike shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations.  updike shall have a possessory lien on all cargo, and any proceeds therefrom, in its, or in its Servicing Motor Carrier’s, dominion or control for the payment of any and all amounts due and owing from CUSTOMER or with respect to services rendered at the request, or for the benefit of, CUSTOMER.  In addition, to the extent not prohibited by applicable law, Updike will have a general lien on any cargo under its, or its Servicing Motor Carrier’s, dominion or control, and any proceeds thereof, for any and all amounts due and owing from CUSTOMER or with respect to services rendered at the request, or for the benefit of, CUSTOMER, regardless of whether those amounts relate to cargo or proceeds against which the general lien is enforced.  Customer disputes as to invoices must be submitted, in writing, to Updike within thirty (30) days from the date of the invoice. Customer agrees to waive the right to contest any invoice for which it fails to provide timely written notice of dispute.

Cargo Liability.

  1. CARGO LIABILITY (CARRIER). where operating pursuant to its motor carrier authority, updike’s liability for cargo loss or damage shall be limited to $100,000 per trailer or conveyance; provided however, that in no event shall updike’s liability for such loss or damage exceed the lesser of the actual repair or replacement cost of the cargo.  if customer wishes for updike to assume additional liability, Shipper must make such request to updike by emailing [email protected] at least seventy-two (72) hours prior to the scheduled pick-up which request is not valid unless agreed upon in writing by an officer of updike.  If such request is accepted by updike in a signed writing, and Shipper pays additional freight charges quoted by updike in response to such request, then updike will be liable for the lesser of the full value declared by Shipper or the cost to repair or replace the goods.  NOtwithstanding the foregoing, Carrier shall not be liable for any loss or damage arising from any act or omission of Customer and/or Customer’s agents, the inherent vice of the goods, improper or inadequate packing and/or labeling of the goods, acts of God, public enemy, or public authority. Carrier shall not be liable for nonreceipt, misdescription, and/or improper loading as described in 49 U.S.C.S. § 80113(b).
  2. Cargo Liability (Broker). As to any shipments for which Updike arranges for transportation services by a servicing motor carrier pursuant to its broker authority, Broker shall not be liable for any claims for loss or damage to goods whatsoever. CUSTOMER acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay.  It will be CUSTOMER’s responsibility to insure product in-transit and CUSTOMER acknowledges that if CUSTOMER wishes to declare excess value higher than the Servicing Motor Carrier’s limitation, updike will have no responsibility to do so and it will be CUSTOMER’s responsibility to do so directly with the Servicing Motor Carrier.  updike may facilitate claims filing and processing with the Servicing Motor Carrier if CUSTOMER submits to BROKER, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage.  updike may, in its sole discretion and without liability to CUSTOMER, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by updike or if CUSTOMER, in updike’s sole discretion, fails to cooperate with updike in filing of claims with the Servicing Motor Carrier.
  3. CUSTOMER acknowledges and agrees that failure or alleged failure by updike or the Servicing Motor Carrier, as applicable, to comply with shipment handling instructions, or a broken trailer seal, shall not result in any presumption that the cargo  has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage.

Delivery. In the event Customer refuses delivery or otherwise fails to take possession of the goods at the destination designated on the applicable BOL, updike may, at its sole discretion and without notice to Customer, unload and/or store such goods at the sole risk and expense of Customer. updike’s actions described herein shall constitute final delivery of such goods and shall terminate updike’s obligations and/or liability related thereto.

Subcontracting. Updike shall be entitled to subcontract directly or indirectly on any terms the whole or any part of the handling, storage, transportation, and/or all duties undertaken by Updike in relation to any goods Customer tenders to Updike for transportation services.

Hazardous Cargo. Customer will not tender goods of a dangerous nature, including, but not limited to, goods with flammable, explosive, radioactive, corrosive, and/or toxic properties, unless Customer first provides Updike with notice describing the hazardous nature of the goods, including all proper documentation and classifications as required by applicable laws and regulations, and unless Updike provides written consent for such goods. Customer shall ensure that such goods are labeled and packed pursuant to any and all applicable laws and regulation. Customer shall be solely responsible for any and all damages and expenses related to Customer’s failure to comply with its obligations described herein, and shall defend, indemnify, and hold harmless Updike from any related loss, damage, or expense, including reasonable attorney’s fees.

Representations and Warranties. Customer represents and warrants that it will comply with all applicable laws and regulations with respect its obligations under these Conditions. Customer warrants that it is legally competent and has the authority to agree to these Conditions, and that any individual or entity acting as Customer’s agent with respect to Customer’s obligations hereunder is authorized to act on behalf of and legally bind Customer. Customer warrants that all declarations, documents, weight, dimensions, measurements, insurance, and value provided to Updike related to all goods tendered are correct and proper. Customer shall indemnify and hold harmless Updike with respect to any loss, damage, or expense arising from Customer’s failure to provide accurate declarations. Customer shall ensure goods tendered shall be properly packed and labeled; Updike shall not be liable for any loss, damage, or expense related to improper packing and/or labeling of goods.

Disclaimers. Except as specifically provided herein, Updike makes no express or implied warranties with regard to the Services. Updike cannot and does not agree to guarantee delivery of goods by any particular time or date. in no event shall Updike be liable for any direct, indirect, or consequential loss or damages regardless of whether the party to be charged had notice of the possibility of such damages.

Lien. Updike shall have a general lien on all goods with respect to any shipment for which Updike provides Services, for monies owed to Updike related to Services rendered. Customer shall notify, or shall authorize Updike to notify, any third-parties with an interest in the shipment(s) regarding Updike’s lien rights and/or intent to exercise the same.

Limitation of Actions. Customer must file, in writing, any claim against Updike for alleged or actual damage or loss to goods no later than nine (9) months after the date of delivery. Customer may not maintain any lawsuit or action related to loss or damage of goods unless Customer files a timely written claim as described herein. Customer shall have no more than two (2) years to file a civil action related to loss or damage to goods from the date Updike provides written notice of that Updike has disallowed all or part of Customer’s goods identified in its timely written notice of claim.

Insurance. Updike shall have no obligation to procure or arrange for insurance on behalf of Customer, unless otherwise agreed to in writing.

Severability. If any provision of this Agreement is deemed to be illegal, invalid, unenforceable, or inoperative for any reason by a court of competent jurisdiction, that provision shall be deemed modified to the extent necessary to make it valid and operative. If it cannot be so modified, then that provision shall be severed from the Agreement. In either event, the remainder of the Agreement shall continue in full force and effect unless it would be inequitable for the remainder to so continue.

Choice of Law; Forum. These Conditions and the rights of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action or suit arising out of or related to these conditions or the services provided by updike shall be brought solely and exclusively in any court of competent jurisdiction in the State of Arizona without regard to principles of conflict of laws or forum non conveniens.  customer hereby waives any defense or objection to such jurisdiction and venue.

Modification. These Conditions shall not be modified, amended, or waived except upon written agreement executed by the Parties.

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