The following Motor Carrier Services Terms and Conditions (“Terms and Conditions”) are a legal contract between Mario’s Express Service, Inc., dba MX Logistics (“Carrier”) and any shipper, consignor, consignee, or other entity claiming an interest in the Cargo (defined herein) for which Carrier performs transportation services (“Shipper”).
1. Carrier’s Operating Authority and Compliance with Applicable Law.
1.1 Compliance with Applicable Law. Carrier represents that it is duly and legally qualified to operate as a for-hire motor carrier and provide all transportation services contemplated herein. Carrier agrees to comply with all applicable federal, state, local, provincial, and foreign law, regulation, or ordinance (“Appliable Law”) regarding the provision of such motor carrier services.
1.2 Exclusivity. Neither Carrier nor Shipper intend to create an exclusive agreement hereunder.
1.3 Carrier’s Operations. Unless otherwise stated herein, Carrier shall furnish all fuel, oil, tires and other parts, supplies and motor vehicle equipment necessary for the performance of its obligations hereunder (the “Equipment“). As it relates to Shipper, Carrier shall have responsibility of the personnel used in the operation of the Equipment and shall perform the services hereunder as an independent contractor.
1.4 Shipments Containing Food. Shipper warrants that it shall not tender to Carrier any shipments containing food or that require controlled-temperature transportation. Shipper shall indemnify, defend, and hold Carrier, its employees, and agents harmless from and against, and shall pay and reimburse, any and all third-party claims of direct loss, damage, delay, fine, civil penalty, or expense, including reasonable attorneys’ fees and legal costs to the prorated extent caused by Shipper’s breach of this provision by tendering food or controlled-temperature shipments to Carrier.
1.5 Shipments Containing Hazardous Material. Shipper warrants that it shall not tender to Carrier any shipments containing hazardous materials, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 5101 et seq… Shipper shall defend, indemnify, and hold harmless Carrier for any claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out or related to the exposure to a release of any hazardous material, including without limitation, fines or expenses relating to the removal or treatment of hazardous material or other remedial action pertaining to the hazardous material under federal or state law, if: (i) Shipper breaches this provision and tenders hazardous materials to Carrier; or (ii) the contact, exposure or release resulted from the improper packaging of loading or other acts or omissions of the Shipper, its employees or agents.
1.6 Notification of Accidents or Delays. Carrier agrees to notify Shipper of any accident or other event of which Carrier is apprised and which prevents Carrier from making a timely or safe delivery.
2. Shipper’s Representations and Warranties.
2.1 Shipper warrants that it is the owner of the cargo, freight, products, goods, commodities, packages, and/or parcels (collectively, the “Cargo”), or is otherwise authorized to engage Carrier to provide the transportation of the Cargo pursuant to these Terms and Conditions. Shipper will provide complete and accurate information regarding the Cargo and is solely responsible for complying with legal obligations imposed under Applicable Law on any shipper or offeror of Cargo. Shipper shall be solely responsible for preparing, marking, packing, labeling, and securing the Cargo so as to ensure safe transportation with ordinary care in handling.
2.2 Shipper will advise Carrier in writing, prior to tendering any Cargo, whether transportation services require specific licensing, registration, or permitting. Shipper warrants and represents that each shipment for which it requests services is valued at less than $0.50 per pound, and less than $100,000 in total, unless Shipper notifies Carrier in writing, at least twenty-four (24) hours prior to scheduled pick-up, that a specific shipment exceeds such values. Carrier is under no obligation to assume full-value liability unless specifically agreed in a writing signed by an authorized representative of Carrier, which such writing must specifically identify the individual shipment to which it relates.
2.3 If Carrier has provided Shipper with any information regarding the identity of its driver, including, but not limited to, the driver’s name, Shipper will (or, if Shipper is not the consignor, Shipper will require the consignor to) confirm the information, as well as Carrier’s information, prior to tendering a shipment and will not tender if the information of Carrier or the driver that arrives to retrieve a shipment is not the same as the information provided by Carrier. Carrier will not be liable for any loss or damage incurred by Shipper arising from or related to the tendering party’s failure to verify all such information.
3. Shipping Documents.
Unless otherwise agreed in writing, all Cargo tendered shall be accepted on a bill of lading which shall function as a receipt of the Cargo only; the terms and conditions of such bill of lading will not apply to transportation provided pursuant to these Terms and Conditions. Upon written request of Shipper, Carrier will obtain a delivery receipt from the consignee, showing the products delivered, condition of the shipment, and the date and time of such delivery. Shipper is solely responsible for properly identifying and describing the Cargo to be transported on any shipping documentation, as well as for complying with Applicable Law regarding tender of Cargo for transportation. Shipper acknowledges and agrees that Carrier is under no obligation to perform any special handling or other services unless expressly requested in writing by Shipper receipt of which is acknowledged in writing by Carrier.
4. Rates and Charges; Payment Terms.
1. Carrier will charge and Shipper will pay the rates and charges agreed by the Parties in writing, including communication via email, for services provided by Carrier. Shipper agrees to pay Carrier, 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, Carrier incurs in collecting its rates and charges. Shipper shall also be responsible for any additional accessorial charges accrued by Carrier and that were not otherwise included in the rate set forth in Carrier’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 Carrier’s sole discretion, be revised to reflect the goods actually tendered. Carrier 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 Carrier.
2. In no event will Carrier have any responsibility for, and Shipper will defend, indemnify, and hold Carrier 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) amounts intended to cover assessments by third parties (including government regulators). Without limiting the generality of the foregoing, Carrier 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.
3. Carrier shall have a possessory lien on all Cargo, and any proceeds therefrom, in its 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, Carrier will have a general lien on any Cargo under its 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.
5. Cargo Liability and Claims.
1. Carrier shall be liable to Shipper for loss of or damage to Cargo, including loss or damage caused by Carrier’s failure to exercise reasonable dispatch, in accordance with the Carmack Amendment, at 49 U.S.C. § 14706, which liability shall be calculated based on the actual replacement cost of lost or damaged Cargo, not to exceed $100,000 per occurrence for full truckload shipments, and the lesser of (I) $0.50 per pound or (II) $50.00 per shipment for less-than-truckload shipments. Carrier’s sole liability with respect to delay shall be to the extent Carrier fails to exercise reasonable dispatch and that failure causes loss or damage to Cargo. In the event Shipper wishes to declare a higher value of liability in exchange for paying increased rates with respect to any Cargo, Shipper must make such request to Carrier in writing at least twenty-four 24) hours prior to the scheduled pick-up. If such request is accepted by Carrier in a signed writing, and Shipper pays additional freight charges applicable thereto, then Carrier will be liable for the actual replacement cost of lost or damaged Cargo not to exceed the value declared by Shipper. In no event will Carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries.
2. The foregoing notwithstanding: (i) in no event will the concept of deviation apply to services provided hereunder; and (ii) Carrier will not be liable for Cargo loss, damage, or delay occurring or arising in Mexico and if it is unclear whether such a claim arose in Mexico, there will be a rebuttable presumption that loss, damage, or delay arose in Mexico unless rebutted by Shipper with clear and convincing evidence.
3. Carrier shall not be liable for any shortage on a shipper-load-and-count shipment where the Cargo arrived at its destination with seals intact. The failure to indicate “SL&C,” “subject to shipper count” or like notations on shipping documents shall not be a conclusive determination of Carrier liability, nor shall Carrier be precluded from disclaiming liability therefore due to such omissions. Carrier shall not be liable for any loss or damage to Cargo caused by insufficient packing, securing, bracing, marking, or addressing by Shipper.
4. The filing, processing and disposition of all Cargo claims shall be governed by 49 C.F.R. Part 370. Shipper shall submit to Carrier written notice of any Cargo claim within thirty (30) calendar days of the delivery date of the Cargo or, if no delivery, the date delivery would have been reasonably expected. Any civil action filed by Shipper must be filed no later than six (6) months from the date the underlying claim, or a portion thereof, was denied. Shipper agrees to use best efforts to salvage damaged goods as soon as reasonably possible. All amounts received by Shipper from the salvage of damaged goods will be credited to the underlying Cargo claim.
5. Notwithstanding anything to the contrary herein, Carrier’s sole liability with respect to Cargo loss or damage, including loss or damage caused by Carrier’s failure to exercise reasonable dispatch, is as set forth under this Section 5. If Shipper is not the owner of the Cargo, Shipper represents and warrants that it is authorized to bind the owner of the Cargo to the provisions of these Terms and Conditions.
6. Insurance
Carrier shall procure and maintain the following insurance coverage with reputable insurance companies. Carrier shall furnish copies of certificates of insurance upon request.
1. Commercial automobile/trucking liability insurance coverage with limits of not less than $1,000,000 per occurrence.
2. Cargo liability insurance in an amount not less than $100,000 per occurrence.
3. Workers’ compensation insurance coverage with statutory limits
7. Indemnification
The provisions of this section shall not apply to claims for Cargo loss, damage or delay.
1. Carrier shall indemnify, defend, and hold Shipper, its employees, and agents harmless from and against, and shall pay and reimburse, any and all third-party claims of direct 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 Carrier; (ii) Carrier’s or its employees’ violation of Applicable Law; or (iii) Carrier’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.
2. Shipper shall indemnify, defend, and hold Carrier, its employees, and agents harmless from and against, and shall pay and reimburse, any and all third-party claims of direct 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) a third party seeking to impose liability on Carrier with respect to Cargo loss, damage, or delay in excess of the liability expressly assumed herein. 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 Carrier, its employees, or agents.
3. 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.
4. Any indemnified party shall promptly tender the defense of any claim to the indemnifying party.
8. 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.
9. 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, 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.
10. Communications
To the extent practicable, communications between Carrier 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.
11. 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.
12. 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 servicing Middlesex County, New Jersey. The Parties consent to the jurisdiction of these courts. Without waiving the foregoing, the Parties may agree to submit disputes to mediation or arbitration in New Jersey.
13. Waivers
13.1 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.
13.2 Third-Party Conduct. ANY PROVISIONS OF THESE Terms and Conditions TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT WILL CARRIER 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 CARRIER DOING BUSINESS OR SEEKING TO DO BUSINESS WITH A THIRD PARTY THAT HAS MISREPRESENTED ITS IDENTITY TO CARRIER.
13.3 ICCTA. Shipper and Carrier expressly waive any and all rights and remedies under Part B of Subtitle IV to Title 49 of the U.S. Code to the extent that such rights and remedies conflict with THESE Terms and Conditions as allowed by 49 U.S.C. § 14101.
14. Miscellaneous Provisions.
14.1 General. 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.
14.2 Severability. 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.
14.3 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.
14.4 Notices. 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.
14.5 No Third-Party Beneficiaries. Except as provided herein, 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.
14.6 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 Carrier.
14.7 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.
14.8 Survival. 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 Carrier or Shipper under, the liability or entitlement will continue until it is satisfied in full, notwithstanding the completion of services.
14.9 Captions. 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.