STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (“Conditions”) constitute a legally binding contract between Updike Distribution Logistics, LLC (“Updike” or “Company”) and its customers (“Customer”). 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 shall supersede any conflicting terms that may be contained in any applicable tariff or other agreement as to the rights and duties of the Parties as to each other.
INTRODUCTION
Customer is 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 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.
TERMS OF CARRIAGE
Scope of Services. Updike (or “Carrier”) will generate a Bill of Lading (“BOL”) for transportation of Customer’s goods. Customer shall provide all necessary information and documents required for carriage, including, but not limited to, description of the goods, origin and destination, services requested. Carrier’s obligations with regard to any shipment shall not begin until Carrier assumes complete custody and control of the goods at the origin indicated on the BOL, and terminate upon delivery and relinquishment of custody of the goods at the destination indicated on the BOL. 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:
(a) 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
(b) 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.
Route. Carrier, in its sole discretion, may perform transportation services in any reasonable manner and by any route, means, or method. Carrier does not agree to or otherwise guarantee delivery at any particular time or subject to any contract or requirement of Customer apart from the Conditions contained herein.
Rates. 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. If a load, regardless of type or classification, includes over-sized freight, then additional charges and transit days may apply. Additional fees may apply for charges including, driver assistance or detention such as trailer or tractor. Customer must tender the load to carrier at the agreed upon rate, or pay a penalty. “Less than Truck Load” Rates (“LTL”) rates are based on the calculated density and/or freight class as determined by the National Motor Freight Classification (“NMFC”). Truckload rates (“TL”) rates are mileage based from dock door pickup to dock door delivery with shipper load and consignee unload. Air Freight rates are based on the greater of actual or dimensional weight. Van Line rates are based on mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on transport equipment type, mileage and weight (actual or density).
Cargo Liability. Carrier’s liability for cargo claims shall be governed by 49 U.S.C. 14706 and 49 C.F.R. Part 370. Accordingly, liability for cargo damage is limited to the actual loss or injury to the property, less any recovered value from salvage or resale. 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). Carrier shall not be liable for any direct, indirect, or consequential loss or damage related to delay or any other cause except as mandated by applicable law.
Cargo Liability (Broker). As to any shipments for which Updike (or “Broker”) arranges for transportation services and does not act as a motor carrier within the meaning of USC Title 49, Broker shall not be liable for any claims for loss or damage to goods whatsoever. Broker shall not be liable for any loss or damage caused by the acts or omissions of any third-party, nor related to the selection of a particular carrier for a shipment. Broker 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. Broker’s sole responsibility with respect to any claims for damaged goods will be to assist in settlement or in the filing of a claim between the Customer and the applicable motor carrier(s).
Delivery. In the event Customer refuses delivery or otherwise fails to take possession of the goods at the destination designated on the applicable BOL, Carrier may, at its sole discretion and without notice to Customer, unload and/or store such goods at the sole risk and expense of Customer. Carrier’s actions described herein shall constitute final delivery of such goods and shall terminate Carrier’s obligations and/or liability related thereto.
GENERAL TERMS APPLICABLE TO ALL SERVICES
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 Updike 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. Updike shall not be liable for any direct, indirect, or consequential loss or damage related to delay or any other cause except as mandated by applicable law.
Payment. Customer accepts unconditional liability for all charges, fees, and costs incurred for Services rendered. Customer shall pay charges within thirty (30) days of delivery. Past due invoices shall accrue late fees charged from the date payable until payment in full at 2.0% per month, or such lesser amount representing the maximum allowable rate under applicable law. Where Updike provides past due invoices to an attorney or collection agency for collection, Customer agrees to pay all interest payments, collection costs, court costs, reasonable attorney’s fees, and other reasonable expenses incurred related thereto, in addition to unpaid principal.
Charges. 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. 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.
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 hereunder shall be brought in any court of competent jurisdiction in the State of Arizona without regard to principles of conflict of laws or forum non conveniens.
Modification. These Conditions shall not be modified, amended, or waived except upon written agreement executed by the Parties.
