MX Logistics Group Terms and Conditions

1. Rates and Charges; Payment Terms.

• Broker will charge and Shipper will pay the rates and charges agreed by the Parties in writing, including communication via email, for services provided by Broker. Shipper agrees to pay Broker without deduction or offset, within thirty (30) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month on any unpaid balance. Shipper shall be liable for any expenses, including attorneys’ fees and legal costs, Broker incurs in collecting its rates and charges. Shipper shall also be responsible for any additional accessorial charges imposed by the Carrier that were not anticipated by Broker at the time Broker arranged for services with Carrier or which were not otherwise included in the rate set forth in the Broker’s quote or other communication. If any information provided by Shipper is inaccurate or incomplete, Shipper acknowledges and agrees that agreed upon rates may, in Broker’s sole discretion, be revised to reflect the Cargo actually tendered. Broker and Shipper agree that any payments made hereunder are made in payment of debts incurred in the ordinary course of business and are made according to ordinary business terms. Shipper shall be liable for all charges arising out of services requested by Shipper and performed by Broker and its Carriers.

5.2       In no event will Broker or any of its affiliated entities, each of which shall be an intended third-party beneficiary of these Terms and Conditions, have any responsibility for, and Shipper will defend, indemnify, and hold Broker harmless from, and will pay and reimburse, any charges imposed by third parties with respect to: (i) use of equipment in which Cargo tendered by, to, or on behalf of Shipper is, has been, or will be 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; (ii) charges arising from services, including, but not limited to, any and all amounts assessed by third parties related to requests for cancellation (including charges for services rendered prior to cancellation), costs related to requests for reconsignment or otherwise due to inaccurate or incomplete information provided by or on behalf of Shipper; or (iii) any rates or charges, or any increase in any rates or charges, the Carrier assesses to Broker, such as fuel surcharges, peak season surcharges, general rate increases, or amounts intended to cover assessments by third parties (including government regulators). Without limiting the generality of the foregoing, Broker shall have no liability for any such changes arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations.  

5.3       Broker shall have a possessory lien on all Cargo, and any proceeds therefrom, in its, or in its Carrier’s, dominion or control for the payment of any and all amounts due and owing from Shipper or with respect to services rendered at the request, or for the benefit of, Shipper. In addition, to the extent not prohibited by Applicable Law, Broker will have a general lien on any Cargo under its, or its Carrier’s, dominion or control, and any proceeds thereof, for any and all amounts due and owing from Shipper or with respect to services rendered at the request, or for the benefit of, Shipper, regardless of whether those amounts relate to Cargo or proceeds against which the general lien is enforced.

2. Broker’s Insurance Obligations. Broker shall comply with all insurance and bonding requirements imposed upon it by Applicable Law, including its obligation to maintain a surety bond to benefit the Shipper.

3. Cargo Liability and Claims.

• In the event of Cargo loss or damage, including loss or damage due to unreasonable delay in delivery, Broker may facilitate claims filing and processing with the Carrier if Shipper submits to Broker, within thirty (30) calendar days of the date of delivery (or if no delivery, within thirty (30) calendar days of the date Cargo should have been delivered), 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. Failure to do so will result in an absolute bar to any such claim and will relieve Broker of any obligation to pursue the claim with Carrier.

• Shipper understands and agrees that the Carrier may have a limitation of liability in place that limits Shipper’s recovery with respect to such claims.

• Broker may, in its sole discretion and without liability to Shipper, discontinue pursuit of claims with the Carrier if such claim is not resolved within sixty (60) days of receipt by Broker.

• Broker shall have no liability for Cargo loss, damage, or shortage except to the extent such claims are caused directly and proximately by Broker’s negligent or intentionally wrongful acts or omissions, in which event, Broker’s liability shall be limited to the amount owed to Broker by Shipper with respect to the services provided by Broker that relate to the Cargo at issue. Broker shall have no liability for delay in delivery of Cargo except to the extent that Broker’s negligence or intentional misconduct directly and proximately causes an unreasonable delay, which delay results in loss or damage to the Cargo.

• Broker shall be under no obligation to arrange, and Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; Broker’s sole obligation is to require Carriers to agree to provide services with reasonable dispatch. In no event will Broker or the Carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries.

• Any lawsuit arising from a Cargo claim must be commenced within six (6) months of denial of all or any part of such claim. Shipper acknowledges and agrees that its sole recourse, and that Broker’s sole liability, with respect to Cargo loss, damage, shortage, or delay shall be pursuant to this provision. Shipper further acknowledges and agrees that if Shipper is not the owner of such Cargo, then Shipper is authorized to bind the owner to the provisions set forth herein regarding loss, damage, shortage, or delay.

4. Indemnification.

• Other than claims for cargo loss, damage, delay, or destruction, Broker shall indemnify, defend, and hold Shipper and its affiliates harmless from and against, and shall pay and reimburse them for, any and all third-party claims including loss, damage, fine, civil penalty, or expense, including reasonable attorneys’ fees and legal costs, to the extent caused by (i) the negligence or intentional misconduct of Broker; (ii) Broker’s or its employees’ violation of Applicable Law; or (iii) Broker’s or its employees’ or agents’ material breach of these Terms and Conditions. The foregoing obligations shall not apply to the extent such liabilities or obligations arise from the negligence or other wrongful conduct of Shipper, its employees, or agents.

• Shipper shall indemnify, defend, and hold Broker and its affiliates harmless from and against, and shall pay and reimburse them for, any and all third-party claims including loss, damage, fine, civil penalty, or expense, including reasonable attorneys’ fees and legal costs, to the prorated extent caused by (i) the negligence or intentional misconduct of Shipper; (ii) Shipper’s or its employees’ or agents’ violation of Applicable Law; (iii) Shipper’s or its employees’ or agents’ material breach of these Terms and Conditions; or (iv) compliance with or reliance on information or instructions provided by or on behalf of Shipper. The foregoing obligations shall not apply to the extent such liability, claims or loss are the result of the negligence or other wrongful conduct of Broker, its employees, or agents.

• In the event that such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, reasonable attorney fees) are caused by the joint and concurrent negligence or other fault of the Parties, or the Parties and a third party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses shall be borne by each Party in proportion to its degree of negligence or other fault.

• Broker shall also indemnify, defend, and hold Shipper and its affiliates harmless from and against any and all claims by Carriers seeking payment for transportation services rendered with respect to loads tendered to the Carrier by Broker to the extent Shipper has made timely payment in accordance with the provisions of these Terms and Conditions to Broker of the full amount owing to Broker for the services underlying the Carrier’s claim.

• Shipper shall also indemnify, defend and hold Broker and its affiliates harmless from and against third-party claims seeking to impose liability on Broker for loss, damage, delay, or destruction of or to Cargo in excess of the liability expressly assumed by Broker pursuant to this Agreement.

• Any indemnified party shall promptly tender the defense of any claim to the indemnifying party.

5. Relationship of the Parties. The Parties intend to create a relationship of independent contractors and in no event will the Parties be deemed to be involved in an employment relationship, joint venture, partnership, or agent-principal relationship.

6. Legal Restraint or Force Majeure. In the event performance by one Party is affected by any cause beyond the reasonable control of such Party, including, without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, government shutdown, pandemic, epidemic, health emergency, or governmental request as requisition for national defense, or requests of governmental officials, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time, and the performance of all obligations required herein, shall be suspended during the continuance of such interruption and such Party shall not bear any liability for loss or damage to Cargo resulting therefrom. Such Party shall make reasonable efforts to promptly notify the other Party of such interruption. On resumption of operations, any affected performance by such Party shall be resumed. The affected Party shall be permitted an extension period equal to the period of suspension to complete shipments adversely affected by the suspension. No liability shall be incurred by either Party for damages resulting from such suspensions.

7. Communications. To the extent practicable, communications between Broker and Shipper, including, but not limited to, invoicing, payment, shipment-specific rates and charges, and proofs of delivery, will be electronic in a format mutually agreeable to the Parties. The Parties hereby waive any objection to the authenticity of such electronic communications as long as such communications comply with the Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or related legislation as applicable.

8. Broker’s Records. To the extent allowable under Applicable Law, Shipper hereby waives its right to obtain copies of Broker’s records as provided for under 49 C.F.R. Part 371. Notwithstanding the foregoing, to the extent that Shipper obtains records set forth in 49 C.F.R. § 371.3 by any means whatsoever, Shipper agrees to refrain from utilizing such records in negotiating for the provision of services with any third party, including Carriers. Shipper further agrees and understands that all such records comprise Broker’s Confidential Information (as defined below) and trade-secrets.

9. Confidentiality. “Confidential Information” shall mean any business, financial, marketing, technical, scientific or other information which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the Parties, exercising reasonable business judgment, to be confidential. Neither Party will disclose the Confidential Information of the other Party to a third party for any reason without the written consent of the other Party, except (i) as required by Applicable Law; (ii) to the extent disclosure is made to its accountants, tax advisors, attorneys, or any parent, subsidiary, or affiliate company; or (iii) as is reasonably necessary to the performance of operations hereunder (including Broker’s disclosure of shipment-specific information to Carriers); or (iv) for purposes of defending or prosecuting any claims or rights arising from or related to this Agreement.

10. Governing Law and Dispute Resolution. These Terms and Conditions and the Parties’ business dealings shall be deemed to have been drawn in accordance with the statutes and laws of the United States and the state of New Jersey, without regard to the choice-of-law rules of that or any other jurisdiction. The Parties agree that any claim or dispute arising from or in connection with these Terms and Conditions and the Parties’ business dealings, whether under federal, state, local, or foreign law, must be brought exclusively in the state or federal courts or appropriate subject matter jurisdiction serving Middlesex County, New Jersey. The Parties consent to the exclusive personal jurisdiction of these courts.

11. Waivers.

• Consequential Damages. In no event will either party be liable for any special, consequential, incidental, indirect, punitive, or exemplary damages, including, but not limited to, lost profits or damages arising from business interruption, with respect to any matters arising from or related to THEIR BUSINESS DEALINGS OR THESE TERMS AND CONDITIONS regardless of whether the party to be charged had notice of the possibility of such damages.

• Third-Party Conduct. ANY PROVISIONS OF THESE TERMS AND CONDITIONS TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT WILL BROKER HAVE ANY LIABILITY TO SHIPPER OR TO ANY THIRD PARTY FOR THE CONSEQUENCES OF IDENTITY THEFT OR FRAUDULENT CONDUCT PERPETRATED BY THIRD PARTIES, INCLUDING ANY LIABILITY ARISING FROM BROKER DOING BUSINESS OR SEEKING TO DO BUSINESS WITH A THIRD PARTY THAT HAS MISREPRESENTED ITS IDENTITY TO BROKER.

• Failure to Verify. IF BROKER HAS PROVIDED SHIPPER WITH ANY INFORMATION REGARDING THE IDENTITY OF THE CARRIER OR ITS DRIVER, INCLUDING WITHOUT LIMITATION THE CARRIER’S OR DRIVER’S NAME, SHIPPER WILL (OR, IF SHIPPER IS NOT THE CONSIGNOR, SHIPPER WILL REQUIRE THE CONSIGNOR TO) CONFIRM THE INFORMATION PRIOR TO TENDERING A SHIPMENT ARRIVES TO RETRIEVE A SHIPMENT IS NOT THE SAME AS THE INFORMATION PROVIDED BY BROKER. BROKER WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE INCURRED BY SHIPPER ARISING FROM OR RELATED TO THE TENDERING PARTY’S FAILURE TO VERIFY CARRIER OR DRIVER INFORMATIONAND WILL NOT TENDER IF THE INFORMATION OF THE CARRIER OR DRIVER THAT.

12. Miscellaneous Provisions.

• The subject headings of these Terms and Conditions are included for convenience only and must not affect the construction or interpretation of any of its provisions. All dollar amounts are based on U.S. Dollars. Unless otherwise specified, all references to “days” mean calendar days.

• If any provision (including any sentence or part of a sentence) of these Terms and Conditions is deemed invalid for any reason, these Terms and Conditions will be void only as to that provision, and these Terms and Conditions will remain otherwise binding between the Parties. Any provision deemed voided will be replaced with provisions that will be as close to the Parties’ intent as permissible.

• Non-waiver. A waiver of any provision of these Terms and Conditions will not constitute a waiver of any other provision, nor will any waiver constitute a continuing waiver. No waiver will be deemed effective or binding unless executed in writing by the Party making the waiver. The failure or refusal of a Party to insist upon the strict performance of any provision of these Terms and Conditions, or to exercise any right under these Terms and Conditions, will not be construed as a waiver of the provision or right, nor will the failure or refusal be deemed a customary practice contrary to the provision or right. The rights and remedies of each Party under these Terms and Conditions or under Applicable Law are cumulative, and the exercise of any of them will not be exclusive of any other right or remedy provided by these Terms and Conditions or allowed under Applicable Law.

• All notices and other communications required by these Terms and Conditions must be in writing and will be deemed to have been fully given: (i) upon delivery if delivered in person, by facsimile transmission, or electronic means; (ii) on the next day after being deposited with an overnight delivery company with the express charges prepaid; or (iii) on the date indicated on the return receipt, or if there is no receipt, on the third day after being deposited in the United States Mail with first-class postage prepaid.

• No Third-Party Beneficiaries. Nothing in these Terms and Conditions creates any rights in any party not a signatory to or expressly designated as a third-party beneficiary herein.

• Benefit and Assignment. these Terms and Conditions will be binding upon and inure to the benefit of the Parties and their respective successors. Shipper may not assign or subcontract any of its obligations under these Terms and Conditions without written consent from Broker.

• Non-Reliance. Each Party is acting for its own account and has sought and received the advice of an attorney and/or other business counsel or, if not, has chosen not to do so. Neither Party is relying on any representation or other communication (written or oral) of the other Party other than what is set forth in these Terms and Conditions.

• If, up to and including the date of completion of services, one or more events occur that give rise, before or after that date, to a liability or entitlement of Broker or Shipper under, the liability or entitlement will continue until it is satisfied in full, notwithstanding the completion of services.

• The captions in these Terms and Conditions are inserted for convenience of reference only and in no way define, describe, or limit the scope or intent of these Terms and Conditions or any provision thereof.

• Complete Agreement. These Terms and Conditions constitutes the entire agreement between Broker and Shipper and fully replaces and supersedes all prior and contemporaneous agreements, representations, and understandings pertaining to the subject matter contained herein.

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