SOLO 世界合作伙伴
已认证： IATF 16949 | ISO 14001 | FTZ | C-TPAT | RO | IMMEX | Bonded
SOLO 条款和条件
SOLO 的采购订单条款和条件确保透明度、公平交易和合规性。这些条款和条件明确了双方的期望、责任和政策，旨在保护双方利益，促进牢固、专业的合作关系和顺畅的采购流程。
关键术语
采购订单
SOLO 的采购订单概述了采购的明确指导方针，确保了准确性、合规性和效率。它们规定了条款、责任和期望，以简化采购并建立快速、可靠的业务关系。
付款条款
SOLO 的付款条款政策为发票、付款时间表和合规性提供了明确的指导方针。这些政策确保透明度、及时交易和公平协议，从而与合作伙伴和供应 商建立信任和诚信的财务关系。
免责声明
SOLO 的免责声明政策概述了责任限制、准确性保证和使用指南。它们确保严格、明确的责任并保护双方，同时在所有业务交互中保持信任和专业性。
报价和发票
SOLO 的报价和发票政策确保定价清晰、准确、交易不止。它们规定了条款、期望和合规要求，提高了与客户和合作伙伴进行财务交易的透明度和效率。
采购订单条款和条件
Effective date: October 18, 2020
These Purchase Order Terms and Conditions ("Terms") apply to every purchase order issued by a SOLO entity for goods or services. They set out what SOLO expects from its suppliers and what suppliers can expect from SOLO.
1. Definitions
1.1 "Buyer" or "SOLO" means the SOLO entity named on the Purchase Order: SOLO World Partners LLC, SOLO Louisville LLC, or SOLO WORLD PARTNERS DE MEXICO S. DE R.L. DE C.V. Only the entity named on the Purchase Order is bound by that Purchase Order. No other SOLO entity is responsible for it.
1.2 "Seller" means the person or company to which the Purchase Order is issued, including its employees, agents, and permitted subcontractors.
1.3 "Purchase Order" means Buyer's written or electronic order form, including any continuation pages, special provisions, and documents Buyer incorporates by reference, together with these Terms.
1.4 "Goods" means all materials, parts, components, products, packaging, tooling, equipment, software, documentation, technical data, and other items that Seller furnishes or must furnish under a Purchase Order.
1.5 "Services" means all work that Seller performs or must perform under a Purchase Order. Examples include transportation, handling, warehousing support, sorting, repack, inspection, containment, rework, technical assistance, maintenance, consulting, on-site work, and any other services described on the Purchase Order.
1.6 "Buyer's Customer" means any customer of Buyer for whom the Goods or Services are purchased.
2. Order of Acceptance; Entire Agreement
2.1 A Purchase Order is an offer by Buyer. Acceptance is limited to these Terms. Seller accepts the Purchase Order when it does any of the following, whichever happens first: it acknowledges the order in writing or electronically, it ships any Goods, or it starts any Services.
2.2 Buyer objects to any additional or different terms in Seller's quotations, acknowledgments, invoices, websites, or other documents. Those terms do not apply unless an authorized Buyer representative expressly agrees to them in a signed writing.
2.3 If Buyer and Seller have signed a separate written agreement covering the same Goods or Services (such as a supply agreement or master services agreement), that agreement controls wherever it conflicts with these Terms.
2.4 Order of precedence. If the documents conflict, they apply in this order unless the Purchase Order says otherwise: (a) a signed agreement under Section 2.3; (b) the special provisions on the face of the Purchase Order; (c) Buyer's specifications, drawings, and quality requirements referenced in the Purchase Order; (d) these Terms. Seller must ask Buyer to resolve any conflict or ambiguity before performing. Where a document is referenced, the version in effect on the date the Purchase Order is issued applies.
2.5 These documents are the entire agreement on their subject matter and replace all earlier discussions about it. They may be changed only by a written amendment signed by both parties that is identified as an amendment.
3. Price
3.1 Prices on the Purchase Order are firm and include all packaging, packing, labeling, documentation, and loading, unless the Purchase Order says otherwise. Taxes, duties, and freight are handled as stated on the Purchase Order and in Section 9.
3.2 Buyer does not owe any extra charge, surcharge, expedite fee, storage, cartage, or price increase unless Buyer agreed to it in writing in advance.
4. Invoicing and Payment
4.1 Seller may not date an invoice before the date the Goods ship or the Services are completed. Each invoice must show the Purchase Order number, line items, quantities, unit prices, and any other information the Purchase Order requires.
4.2 Unless the Purchase Order states other terms, Buyer will pay undisputed amounts net thirty (30) days from the date of a correct invoice. An invoice is correct when it matches the Purchase Order and meets Section 4.1. Payment will be made by the method stated on the Purchase Order.
4.3 Buyer may withhold any amount it disputes in good faith. Buyer will notify Seller of the dispute, and both parties will work promptly to resolve it.
4.4 Setoff. Buyer may set off any amount Seller owes Buyer against amounts Buyer owes Seller.
4.5 Payment is not acceptance of the Goods or Services and does not waive any of Buyer's rights.
5. Changes
5.1 Buyer may change a Purchase Order in writing at any time before delivery. Changes may cover specifications, drawings, quantities, packaging or shipping method, place of delivery, or delivery schedule.
5.2 If a change increases or decreases Seller's cost or time to perform, Seller must promptly ask for an equitable adjustment in writing, and in any event before it performs the change. Seller must then continue performing as changed while the adjustment is agreed.
5.3 Seller may not change materials, sources, manufacturing or service processes, sub-suppliers, or the location of manufacturing or performance without Buyer's prior written approval. Seller also may not substitute materials or accessories without that approval.
6. Delivery, Shipping, and Packaging
6.1 Delivery as stated on each Purchase Order. Delivery dates, quantities, shipping terms, and the place of delivery are as stated on each Purchase Order. Time is of the essence. Seller must notify Buyer right away if it expects any delay, and say why and when it expects to recover. Buyer may reject early, late, or over-quantity shipments, or return them at Seller's expense. Over- or under-shipment tolerances, if any, are as stated on the Purchase Order.
6.2 Seller must follow Buyer's routing and shipping instructions. Seller pays any extra freight or handling caused by not following them. Seller may not ship at premium freight unless Buyer approves it in writing.
6.3 Seller must package, label, load, block, brace, and secure the Goods to prevent damage and to meet carrier requirements and any packaging specification in the Purchase Order. Each shipment must include a packing list showing the Purchase Order number, part numbers, quantities, and country of origin. Each shipment also needs a bill of lading and any other documents Buyer requires. If a shipment arrives without a packing list, Buyer's count and weight are final.
6.4 Hazardous materials must be classified, packaged, marked, labeled, documented, and shipped in compliance with all applicable laws. Seller must give Buyer safety data sheets and advance written notice before shipping them.
7. Inspection, Acceptance, and Rejection
7.1 Buyer, Buyer's Customer, and any government or regulatory authority with jurisdiction may inspect and test the Goods and Services, and Seller's related facilities and records, at reasonable times before and after delivery.
7.2 Inspection and rejection period. Buyer has thirty (30) days after delivery of Goods, or after completion of Services, to inspect them and to reject any that are nonconforming. Receipt, inspection, use, or payment during that period does not mean Buyer has accepted the Goods or Services or waived any rights.
7.3 Acceptance. Goods and Services are accepted when Buyer accepts them in writing or when the 30-day period in Section 7.2 ends without rejection, whichever happens first. Acceptance does not waive Buyer's rights for latent defects, for defects found during Buyer's or Buyer's Customer's later processing, or under Seller's warranties.
7.4 Buyer may reject any Goods or Services that do not conform to the Purchase Order, Buyer's specifications, or Seller's warranties, or that are delivered late. For nonconforming items, Buyer may, at its option: (a) return them at Seller's risk and expense for full credit or refund; (b) require Seller to promptly repair, replace, or re-perform them at Seller's expense; (c) sort, contain, rework, or repair them itself or through a third party and charge Seller the reasonable cost; or (d) accept them with an equitable price reduction. Buyer has no payment obligation for rejected items.
7.5 Seller must notify Buyer in writing before shipping any Goods that Seller knows or suspects are nonconforming. Seller may ship them only with Buyer's prior written approval.
7.6 When Buyer asks, Seller must provide certificates of conformance, material certifications, test reports, inspection records, and other quality documents. Seller must also meet any quality requirements stated on or referenced in the Purchase Order.
8. Warranties
8.1 Seller warrants that all Goods will: (a) conform to the Purchase Order, specifications, drawings, samples, and descriptions; (b) be new (unless the Purchase Order says otherwise), merchantable, and free from defects in material and workmanship (and in design, to the extent Seller is responsible for design); (c) be fit for Buyer's intended purpose, to the extent Seller knows or has reason to know that purpose; and (d) be delivered with good title, free of all liens, claims, and encumbrances.
8.2 Seller warrants that all Services will be performed with skill, care, and diligence that meet sound industry practice, by qualified personnel, and in line with the Purchase Order.
8.3 Seller warrants that the Goods and Services, and Buyer's use or resale of them, will not infringe any patent, copyright, trademark, trade secret, or other intellectual property right of any third party.
8.4 Seller warrants that the Goods and Services comply with all applicable laws, including the requirements in Section 12.
8.5 Warranty period. These warranties last for twenty-four (24) months from Buyer's acceptance of the Goods or Services, or for any longer period required by law or by Seller's standard warranty. The title and intellectual property warranties have no time limit.
8.6 The warranties survive inspection, acceptance, and payment. They benefit Buyer, its successors, and Buyer's Customers. They are in addition to all warranties implied by law.
8.7 When Buyer asks, Seller must give Buyer a formal lien waiver or release for the Goods and Services, from Seller and from Seller's sub-suppliers.
9. Title, Risk of Loss, Taxes, and Duties
9.1 Unless the Purchase Order states otherwise, title to the Goods passes to Buyer on Buyer's receipt and acceptance of the Goods at the destination stated on the Purchase Order, and risk of loss stays with Seller until that time, except for loss caused by the gross negligence or willful misconduct of Buyer.
9.2 Seller pays all taxes, duties, fees, and charges on the Goods and Services up to the point of delivery, unless the Purchase Order states otherwise or the law requires Buyer to pay them. The importer of record for imported Goods is as stated on the Purchase Order.
10. Buyer's Property and Confidential Information
10.1 Any tooling, dies, fixtures, gauges, patterns, materials, packaging, or other property Buyer or Buyer's Customer furnishes or pays for ("Buyer Property") stays the property of Buyer or Buyer's Customer. Seller must clearly mark it, keep it insured and in good condition, use it only for Buyer's orders, and return it promptly when Buyer asks.
10.2 Seller must keep confidential all non-public information that Buyer provides or that Seller prepares for Buyer in connection with a Purchase Order ("Confidential Information"). This includes drawings, specifications, pricing, data, business plans, customer lists, and Buyer's Customers' information. Seller may use it only to perform for Buyer and may disclose it only to its personnel and permitted subcontractors who need to know it and are bound by similar obligations. Seller may not copy it without Buyer's written permission. Seller must return or destroy it when Buyer asks or when the Purchase Order is complete. These obligations do not apply to information that is or becomes public through no fault of Seller, that was lawfully known to Seller beforehand without restriction, or that Seller must disclose by law (after prompt notice to Buyer where the law allows).
10.3 Seller may not use Buyer's or Buyer's Customer's name, logo, or the existence of the Purchase Order in any advertising or publicity without Buyer's prior written consent.
10.4 Seller must protect any personal data or system access Buyer provides with reasonable security measures, and must notify Buyer promptly of any security incident that affects Buyer's information.
11. Work on Buyer's or Buyer's Customer's Premises
11.1 When Seller performs work at Buyer's facilities or Buyer's Customer's facilities, Seller must follow all site safety, security, environmental, and access rules that Buyer or Buyer's Customer communicates, including any customs-bonded, foreign-trade-zone, or other controlled-area rules that apply. Seller must take all precautions needed to prevent injury to people and damage to property.
11.2 Seller is responsible for its personnel and subcontractors. They are not employees of Buyer.
12. Compliance with Laws and Trade Requirements
12.1 General. Seller must comply with all laws and regulations that apply to the Goods, the Services, and its performance. These include labor, employment, wage-and-hour, health and safety, environmental, transportation, equal employment opportunity, and anti-discrimination laws, as required by law.
12.2 Import, export, and customs. Seller must comply with all import, export, customs, and trade-sanctions laws that apply to the Goods. Seller must provide accurate and complete information that Buyer needs for customs and trade purposes, including country of origin, Harmonized Tariff Schedule classification, value, export classification, and, where applicable, trade-program qualification or certificates of origin (such as under USMCA). Seller must mark the Goods with their country of origin as the law requires. Seller is responsible for duties, penalties, and costs caused by inaccurate information it provides.
12.3 Forced labor and supply-chain integrity. Seller warrants that no Goods or components are made, in whole or in part, with forced, indentured, convict, or child labor. When Buyer asks, Seller must provide the supply-chain tracing documents required by law so Buyer can show compliance with forced-labor import restrictions.
12.4 Restricted parties. Seller warrants that neither it nor its owners, officers, or sub-suppliers are on any U.S., Mexican, or other applicable government restricted- or denied-party list. Seller must notify Buyer immediately if that changes.
12.5 Anti-corruption. Seller may not offer, pay, or receive any bribe, kickback, or improper payment in connection with Buyer's business. That includes payments to any government official, such as customs officials. Seller must comply with the U.S. Foreign Corrupt Practices Act and other anti-corruption laws that apply.
12.6 Supply-chain security. Where Buyer communicates supply-chain security criteria to Seller, Seller must meet them.
12.7 Product content. When Buyer asks, Seller must provide material-content and regulatory declarations that apply to the Goods, as required by law.
12.8 Flow-down. Seller must pass Buyer's applicable requirements, including key characteristics and Buyer's Customer requirements, down to all sub-tier suppliers. Seller stays responsible for their performance.
13. Records and Audit
13.1 Seller must keep complete and accurate records of the Goods and Services, including quality, traceability, origin, and invoicing records, for the period required by applicable law, or longer if the Purchase Order requires.
13.2 On reasonable notice, Buyer, Buyer's Customer, and government or regulatory authorities with jurisdiction may audit Seller's facilities and those records as they relate to the Purchase Order.
14. Insurance
14.1 Seller must carry, at its own cost, standard commercial insurance from reputable insurers that is customary for Seller's business and the Goods and Services it provides, including workers' compensation as required by law, plus any coverage stated on the Purchase Order.
14.2 Seller must provide certificates of insurance when Buyer requests them. Insurance does not limit Seller's liability.
15. Indemnification
15.1 Seller will defend, indemnify, and hold harmless Buyer, its affiliates, and their officers, employees, agents, and Buyer's Customers from all claims, losses, damages, liabilities, fines, penalties, judgments, costs, and expenses (including reasonable attorneys' fees) arising from: (a) Seller's breach of warranty or of any term of the Purchase Order; (b) defective or nonconforming Goods or Services, including recall, field action, containment, and sorting costs to the extent caused by Seller; (c) actual or alleged infringement under Section 8.3; (d) personal injury (including death) or property damage caused by an act or omission of Seller or its personnel or subcontractors; or (e) Seller's violation of law, including customs and trade laws. This obligation does not apply to the extent a claim is caused by the negligence or willful misconduct of the party seeking indemnity.
15.2 Infringement remedies. If the use of any Goods is enjoined or likely to be, Seller must, at its own expense and at Buyer's option, either (a) get Buyer the right to keep using them; (b) modify or replace them so they no longer infringe without losing functionality; or (c) take them back and refund the price plus Buyer's transportation and installation costs.
15.3 Buyer will notify Seller promptly of any claim and give reasonable cooperation. Seller may not settle any claim in a way that imposes an obligation on Buyer or admits fault on Buyer's behalf without Buyer's written consent.
16. Limitation of Buyer's Liability
16.1 Buyer is not liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for lost profits or revenue, arising out of or related to a Purchase Order. Buyer's total liability under any Purchase Order will not exceed the amount Buyer has paid to Seller under that Purchase Order.
17. Termination
17.1 For convenience. Buyer may terminate a Purchase Order, in whole or in part, at any time before delivery by written or electronic notice. Seller must stop work as directed, keep its costs to a minimum, and continue any part that is not terminated. Buyer will pay Seller for Goods and Services that Buyer has already accepted and not yet paid for. Buyer has no other liability for a termination for convenience.
17.2 For cause. Buyer may terminate a Purchase Order, in whole or in part, without liability, if Seller: (a) fails to deliver on time or otherwise breaches and does not cure within ten (10) business days after notice (or right away if the breach cannot be cured); (b) becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of bankruptcy or similar proceedings; or (c) violates Section 12. Seller is liable for Buyer's reasonable excess costs of obtaining substitute Goods or Services.
17.3 After any termination, Seller must deliver to Buyer any completed Goods, work in process, Buyer Property, and Confidential Information that Buyer requests.
18. Excusable Delay (Force Majeure)
18.1 Neither party is liable for a delay or failure to perform that is caused by events beyond its reasonable control and without its fault. Examples include fire, flood, natural disaster, war, terrorism, epidemic, government action, or a strike that is not limited to Seller's workforce. The affected party must notify the other promptly and use reasonable efforts to resume performance. Changes in market conditions, Seller's supplier failures (unless they are themselves caused by such an event), and Seller's own labor disputes are not excusable delays.
18.2 During an excusable delay, Buyer may obtain the Goods or Services elsewhere and reduce the Purchase Order quantities accordingly. If the delay will prevent Seller from meeting Buyer's needs, Buyer may terminate the affected Purchase Order under Section 17.1.
19. Assignment and Subcontracting
19.1 Seller may not assign, transfer, delegate, or subcontract a Purchase Order, or any right or obligation under it, without Buyer's prior written consent.
20. Independent Contractor
20.1 Seller is an independent contractor. Nothing in a Purchase Order creates a partnership, joint venture, agency, or employment relationship.
21. Remedies; Waiver; Severability; Survival
21.1 Buyer's rights and remedies are cumulative and add to those available at law or in equity.
21.2 If Buyer does not enforce a term, or waives it once, that is not a continuing waiver of that term or any other term.
21.3 If any provision is held invalid or unenforceable, the rest of these Terms stays in effect, and the provision will be enforced to the maximum extent the law allows.
21.4 Sections that by their nature should survive termination, completion, or acceptance (including warranties, indemnities, confidentiality, compliance, records, insurance, and governing law) do survive.
22. Governing Law and Venue
22.1 These Terms and each Purchase Order are governed by the laws of the State of Michigan, U.S.A., without regard to its conflict-of-law rules, except to the extent federal law applies. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
22.2 Any lawsuit arising out of a Purchase Order must be brought in the state or federal courts located in Wayne County, Michigan, and each party consents to the jurisdiction of those courts.
23. Notices
23.1 Notices under a Purchase Order must be in writing and sent to the addresses on the Purchase Order. Email counts as written notice.
24. Changes to These Terms
24.1 Buyer may update these Terms from time to time by posting a new version at www.solowp.com/po-terms. The version in effect on the date a Purchase Order is issued applies to that Purchase Order.
Questions about these Terms may be sent to the SOLO contact named on the Purchase Order, to info@solowp.com, or by calling +1.734.282.7200.
客户标准要求
Effective date: October 18, 2020
These Customer Standard Terms and Conditions (these "Conditions"), together with the terms of any Company-provided rate quote or confirmation (the "Quote"), apply to the provision or arrangement of any transportation, warehouse, transloading, storage, customs brokerage, or handling services ("Services") by one or more of the following distinct corporate entities (individually and collectively, the "Company"):
-
SOLO World Partners LLC
-
SOLO Louisville LLC
-
SOLO WORLD PARTNERS DE MEXICO S. DE R.L. DE C.V.
Each Company may operate under the trade name "SOLO."
These Conditions set out the rights and obligations of the Company and Customer (defined below), except as otherwise stated in them.
By tendering goods to the Company for Services, Customer expressly accepts these Conditions and warrants that a representative of Customer authorized that acceptance as of the date the Company first provided Services to Customer.
The Company may update these Conditions from time to time by posting a new version on its website. The version of these Conditions in effect on the date a shipment is tendered to the Company applies to that shipment.
Definitions
1. "Bill of Lading" means a document issued by the Company or a Carrier (or a Carrier Representative), as applicable, that evidences the receipt of Goods for shipment to a specified destination and person. The term may include a waybill as context requires.
2. "Carrier" means any motor carrier, including its drivers and independent owner-operators; any rail carrier or rail transportation service provider; any intermodal equipment provider; any ocean or air carrier (including non-vessel-operating common carriers and indirect air carriers); any warehouse operator; or any other person or entity that provides transportation, storage, handling, or related services to the Goods at the request of the Company.
3. "Carrier Representatives" means any employees, contractors, subcontractors, and agents of a Carrier.
4. "Claims" means any and all liabilities, claims, losses, suits, actions, costs, fines, penalties, expenses (including attorneys', paralegals', and expert witnesses' fees, and other costs of defense, investigation, and settlement), judgments, or demands on account of damage of any kind, including personal injury, property damage, cargo damage, environmental damage, or any combination of them, suffered or claimed to have been suffered by any person or entity, as well as the costs of enforcing indemnification obligations and the costs of containment, cleanup, and remediation of spills, releases, or other environmental contamination.
5. "Company" means whichever of SOLO World Partners LLC, SOLO Louisville LLC, or SOLO WORLD PARTNERS DE MEXICO S. DE R.L. DE C.V. is providing or arranging Services at the request of Customer.
6. "Conditions" means these Customer Standard Terms and Conditions.
7. "Customer" means the person or entity at whose request, for whose benefit, or on whose behalf the Company provides any Services, including any third-party logistics provider, shipper, consignor, consignee, beneficial cargo owner, or any agent acting on behalf of such person or entity.
8. "DOT" means the United States Department of Transportation.
9. "Facility" means a warehouse facility operated by the Company, or another warehouse facility contracted by the Company, to provide storage, handling, transloading, or warehousing services for Customer.
10. "Goods" means the cargo or goods for which the Company is arranging transportation or providing other Services, and includes packaging, pallets, packing materials, containers, and any related equipment.
11. "Governmental Authority" means any U.S. or foreign (including supra-national organizations such as the European Union) federal, state, provincial, regional, or local government, or any of their agencies, authorities, departments, regulatory bodies, tribunals, services, or similar entities.
12. "IMC" means a person or entity that, for compensation, arranges or offers to arrange the transportation of Goods by intermodal transportation performed by authorized motor carriers and rail service providers.
13. "Intermodal Tariff" means the published directory, rules, policies and procedures, tariff, shipping guide, or agreement of the applicable rail Carrier for its intermodal transportation services in effect at the time of shipment.
14. "Parties" means the Company and Customer unless otherwise specified, and "Party" means the Company or Customer, as applicable.
15. "Property Broker" means a person or entity that, for compensation, arranges or offers to arrange the transportation of Goods by an authorized motor carrier or rail transportation provider.
16. "Service Agreement" means a written agreement signed by an authorized representative of Customer and the applicable Company concerning the Services provided by that Company.
17. "Trailer" means a container and chassis, or a trailer, used for the rail, highway, or ocean transportation of Goods.
18. "Warehouse Services" means storage, handling, transloading, or warehousing services provided by the Company.
1. Application of These Conditions
Except as otherwise expressly stated, these Conditions apply to all of the Company's activities in arranging or providing Services, except to the extent expressly superseded or waived in a Service Agreement. The Company and Customer may agree to additional or amended service terms in a Service Agreement. If any of these Conditions conflicts with a Service Agreement, the Service Agreement governs. Where a Service Agreement is silent on a matter and does not expressly disclaim these Conditions, these Conditions apply to that matter. If these Conditions conflict with the terms of a Quote, the Quote governs.
Sections 12 and 13 explain how Bill of Lading terms apply to air and ocean transportation Services.
Carrier services are provided subject to and governed by the Carrier's Bill of Lading (including tariffs, service guides, and similar documents incorporated in it) and by the contractual arrangements between the Company and the Carrier, and Customer agrees that its rights against Carriers are subject to them.
2. Services Requiring Special Arrangements
Customer will not request, and the Company will have no responsibility to:
a. arrange for Goods to be carried, stored, or handled separately from other Goods;
b. arrange for Carriers or delivery agents to hold Goods until payment of any amount or until surrender of a document; or
c. arrange for the transport of any of the following: Goods with a replacement value over $100,000; luxury Goods (including works of art, jewelry, pharmaceuticals, electronics, currency, negotiable instruments or securities of any kind, precious metals or stones, and antiques); human remains; livestock or plants; hazardous materials or dangerous goods; fresh produce; waste of any kind; oversize or overweight shipments; coiled or rolled products; commodities requiring protection from heat or cold or temperature-controlled equipment; or any other freight with special requirements or that is restricted or prohibited by Carriers.
Customer will defend, indemnify, and hold the Company harmless against any Claims resulting from the Company's not making the arrangements listed above.
3. Company's General Responsibilities and Disclaimers
a. Nothing in these Conditions or otherwise requires the Company to accept Goods tendered by Customer for Services. If the Company agrees to provide Services, the Company will exercise reasonable care in arranging for or providing Services in accordance with these Conditions, and will arrange for transport and related Services within a reasonable time after receiving Customer's instructions. HOWEVER, THE COMPANY IS NOT RESPONSIBLE FOR COMPLIANCE WITH TRANSIT, PICK-UP, OR DELIVERY APPOINTMENT DATES OR TIMES AND WILL NOT BE LIABLE IN ANY WAY FOR TRANSPORTATION DELAYS. Where the Services include providing or arranging transportation, the Company's obligation is to provide or arrange that transportation with reasonable dispatch.
b. Except as otherwise stated in these Conditions, the Company will take all reasonable steps to inform any Carrier of Customer's written instructions received by the Company, unless the Company has told Customer that it will not provide Services in accordance with those instructions, in which case the Company will have no liability arising from or related to failure to comply with them. If, after the Company has agreed to arrange transportation of a shipment, events or circumstances make it impossible or impracticable, in the Company's sole discretion, for the Company to fulfill its obligations under these Conditions, the Company may depart from Customer's instructions without prior authorization from Customer and will not incur any additional liability as a result.
c. The Company is not responsible to Customer or others for delay, or for deterioration of Goods from delay, whether with or without cause. The Company is also not responsible for deterioration of Goods arising from breakdown or malfunction of refrigerated equipment or from changes in temperature, even if the rates quoted are for temperature-controlled equipment or temperature-sensitive Goods.
d. The Company, its agents, and the Carriers remain at all times independent contractors with respect to Customer. Carriers engaged by the Company have sole and exclusive control over the manner in which they and their Carrier Representatives perform transportation services, including the operation of all vehicles and equipment used. Carriers engaged by the Company and their Carrier Representatives are not employees or agents of the Company and are not in any joint venture or partnership with the Company. However, the Company and a Carrier may agree that the Company will act as the Carrier's agent for the sole purpose of collecting the agreed freight charges related to the Services. Except for that specific designation, nothing in these Conditions, and no act or omission of either Party, creates or implies a joint venture, partnership, principal-agent, fiduciary, or employer-employee relationship among Customer, the Company, or the Carriers.
e. On request, the Company will provide Customer with proof of acceptance and delivery of Goods shipped, in the form of an original or imaged signed Bill of Lading or proof of delivery. This documentation may be made available to Customer through a web-based or other system. Additional charges may apply.
f. For shipments moving intermodally or over the road, insertion of the Company's name on the Bill of Lading as the "carrier" by any entity other than the Company is for Customer's convenience only, does not mean that the Company is actually the Carrier of that shipment, and does not otherwise change the Company's status in handling that shipment.
4. Customer's General Responsibilities
a. Customer must provide all information and instructions reasonably necessary for the Company to arrange the transportation and related services Customer requests in accordance with applicable laws, rules, regulations, and conventions. Customer will provide detailed and accurate descriptions and accurate weights of all Goods tendered for transportation. Customer is responsible for knowing and complying with the customs, import, export, and transportation laws, rules, practices, and regulations of the Governmental Authorities of the countries involved in a shipment; for completing and providing all required documentation; and for applying and paying for all licenses, permits, and authorities that Governmental Authorities require for the business and transportation Customer contemplates.
b. Customer will not tender any Goods that will, or would reasonably be expected to, contaminate, taint, corrode, or otherwise adversely affect the quality or condition of other Goods being transported or of the Trailer used to transport the Goods.
c. Customer warrants that it is the owner, or the authorized agent of the owner, of the Goods tendered for Services, and that it has the authority to accept, and does accept, these Conditions for itself and, where applicable, as agent for the owner and any other person involved in the transportation, including any consignor, consignee, logistics provider, freight forwarder, or insurer, and that these Conditions bind those persons and entities.
d. Except to the extent the Company has accepted instructions and explicitly accepted responsibility for the preparation, packing, stowage, labeling, or marking of the Goods, Customer warrants that (1) all Goods have been properly and sufficiently prepared, packed, and stowed, and are fully and accurately described, labeled, and marked, in a manner appropriate to any operations or transactions affecting the Goods and to the characteristics of the Goods; (2) the Goods are suitable for transportation in or on the Trailer; and (3) the Trailer is in suitable condition to carry the Goods loaded in it. If the Goods are transported by intermodal transportation, Customer also warrants that, except to the extent the Company has accepted instructions and explicitly accepted responsibility for loading, blocking, and bracing, (i) the Goods have been packaged, loaded, blocked, and braced within the intermodal container to prevent shifting during intermodal transportation and in accordance with applicable industry standards, including the Intermodal Loading Guide of the Association of American Railroads and the guidelines of the applicable rail Carrier; and (ii) the weight of the Goods and the intermodal container or trailer will not exceed applicable weight limits and will be accurately stated in Customer's shipping instructions. Acceptance of a shipment by the Company or the Carrier does not waive Customer's obligation to comply with this Section.
e. Customer will obtain all permits and authorizations needed to ship the Goods, including export and import licenses and permits, and will comply with all applicable laws, including any prohibition on selling to any person on a U.S. or Canadian export control list.
f. Customer will comply with applicable United States, European Union, and United Nations export control and trade sanctions laws and regulations ("Export Control and Trade Sanctions"). Without limitation: (i) Customer warrants that neither it nor its directors, officers, or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions; (ii) Customer will not request services in connection with goods, countries, regions, or parties subject to Export Control and Trade Sanctions, including countries and regions subject to comprehensive embargoes under applicable law, without government authorization and the Company's prior written agreement; (iii) the Company may refuse to receive, process, or release an order that appears to the Company to involve goods, countries, regions, or parties subject to Export Control and Trade Sanctions; and (iv) for cross-border transactions in which the Company provides transportation or customs-related services, Customer will provide the Company, within a reasonable time before export or entry, with the complete and accurate information required by Export Control and Trade Sanctions, including product descriptions, quantities, weights, values, country of origin, harmonized tariff code, export classification, and any required government authorization.
5. Quotations and Invoicing
a. The Company will invoice Customer for its Services (including services it has arranged with a Carrier) in accordance with the rates, charges, and provisions in any Quote provided to Customer or in the Service Agreement with Customer. The Company may also impose charges in accordance with its then-current rules and accessorial charges, as amended from time to time, which are available from the Company on request.
b. If rates are negotiated between the Parties and not otherwise confirmed in writing, those rates will be considered "written," and will be binding, when the Company invoices Customer.
c. Quotes are given on the basis of immediate acceptance and are subject to withdrawal or revision. Customer is solely responsible for additional charges such as waiting time, layover, and demurrage, unless those charges arise directly from the Company's failure to perform the Services in accordance with Customer's instructions and that failure is not excused under these Conditions.
d. Quotes and associated charges do not include any state, county, or harmonized sales taxes, or other use or value-added taxes, duties, or similar charges, and Customer is liable for those taxes, duties, and charges.
e. Rates quoted by the Company do not include any fees, charges, or duties related to customs, border crossing, or government taxes, unless otherwise stated. Among other charges, shipments crossing borders are subject to charges for set-outs of railcars, customs inspections, customs duties, delays for incorrect documentation, and governmental fees. Generally, the Company will invoice Customer before it is billed by the Carriers involved in the shipment. Where additional third-party charges have been applied, the Company will review them and, if they relate to Services provided to or received by Customer, may issue an adjusted invoice to Customer, unless the third-party charges were incurred solely as a result of the Company's error or omission.
f. Customer acknowledges that the Company may invoice Customer an amount different from the amount it pays the Carriers. The Company may charge Customer a management fee and pay the Carrier the amount agreed for the services provided.
g. Customer will pay invoices within the agreed credit period without deduction or setoff. If no credit period has been established, payment is due within thirty (30) days of the date of the Company's invoice. The Company may, in its sole discretion, establish and revise credit limits for Customer. The Company will apply each payment to the invoice specified, regardless of whether earlier invoices remain unpaid. Overdue amounts are subject to any late charge or interest stated in the applicable Quote, Service Agreement, or invoice, not to exceed the maximum amount permitted by applicable law, plus reasonable costs of collection.
h. Customer must notify the Company in writing of any dispute regarding a Company invoice within sixty (60) days of the invoice date. If Customer does not notify the Company of the dispute in time, the Company's original invoice will be final, and Customer will be deemed to have accepted it in full and to have waived all Claims and defenses to paying it. As a condition of collecting any such Claim, Customer must start an arbitration or lawsuit for overcharges, duplicate payment, overcollection, or other invoice-related dispute within eighteen (18) months of delivery or tender of delivery of the shipments involved.
6. Collect Shipments
Where Goods are accepted or handled with instructions to collect freight charges, duties, charges, or other expenses from the consignee or any other person, Customer remains responsible for them if the consignee or other person does not pay them immediately when due, regardless of any contrary term on the Bill of Lading and regardless of whether Customer or the consignor signed a provision the same as or similar to Section 7 of the Uniform Bill of Lading. The Company has no liability arising from or related to acceptance of payment in the wrong form, inadequate payment (including dishonor of payment for any reason, such as insufficient funds), or the consignee's or other person's refusal to pay.
7. Changed Circumstances; Failure to Take Delivery
If events or circumstances affecting performance occur, including Customer's or its consignee's failure to take delivery, the Company will take reasonable steps to obtain Customer's further instructions. If the Company does not receive timely instructions, or determines in its sole discretion that following the instructions is impracticable, the Company may:
a. arrange for storage of, or store, the Goods at Customer's sole risk and expense; or
b. authorize any Carrier to abandon transportation and make the Goods, or any part of them, available to Customer at a place that is reasonable under the circumstances.
If any shipment is refused or unclaimed at destination or at any transshipment point, or is returned for any reason, Customer will still pay the Company all related charges and expenses.
8. Dangerous Goods and Hazardous Materials
Customer will not tender for transportation or storage any dangerous goods or hazardous materials (as defined by applicable international convention or code, or applicable federal, state, or provincial law or regulation, including DOT regulations at 49 C.F.R. Parts 100 to 185 and the Transportation of Dangerous Goods Regulations of Canada) without first giving the Company full particulars of the Goods. The Company or the Carriers may refuse to transport dangerous goods or hazardous materials, or may charge an additional surcharge. Customer and its shippers will comply with all applicable laws and regulations relating to the transportation of dangerous goods and hazardous materials, including those on descriptions, marking, packing, and shipping papers. Customer is responsible for, and will defend, indemnify, and hold harmless the Company and the Carriers from, any Claims arising from Customer's failure to comply with this Section. Goods that, in the opinion of the Company, the Carrier, or any other person with custody or possession of them, are or may become dangerous, or present a hazard or nuisance (due to leakage, odors, appearance, or other reasons), may at any time or place be unloaded, destroyed, stored, disposed of, or rendered harmless at Customer's expense and without liability to the Company. The Company is not responsible for reviewing any shipping instructions provided by Customer for classifying commodities to a hazardous materials class, or for verifying whether a commodity is subject to any hazardous materials regulation or is properly classified.
9. Rail Carrier Terms for Intermodal Transportation and Equipment
a. Each rail Carrier imposes requirements, limitations, and restrictions on shipments transported on its intermodal network. All intermodal transportation is subject to the terms, conditions, requirements, limitations, restrictions, and procedures of the applicable rail Carrier's Intermodal Tariff. Intermodal Tariffs set limitations of liability, cargo claims procedures, commodity restrictions, loading, blocking, and bracing requirements, indemnification obligations, payment terms, dispute arbitration requirements, and other important restrictions. Customer should be familiar with and comply with the Intermodal Tariffs before becoming involved in any intermodal movement. Customer represents and warrants that it will notify all persons and entities involved in the transportation, including the consignee, beneficial cargo owner, consignor, and other third parties such as freight forwarders, freight brokers, third-party logistics providers, IMCs, and insurers, that these Conditions (or any different terms in a written agreement signed by the Company's authorized representative) and the Intermodal Tariff apply to intermodal transportation arranged by the Company. All such persons and entities will be conclusively presumed to have agreed to these Conditions (except to the extent of any different terms the Company has agreed to in writing) and to the Intermodal Tariff.
b. Customer will have all empty intermodal Trailers tendered for loading inspected before loading and will reject any unit that is not in apparently suitable condition to protect and preserve the Goods during transportation. Customer will promptly notify the Company of any rejected unit. If Customer asks the Company to arrange for Trailers to be dropped at a location for Customer's convenience and left unattended, Customer will pay for loss of or damage to the Trailer occurring during or as a result of that possession or use.
c. Customer warrants that the Company may rely on Customer's documentation of the weight of a loaded container or trailer tendered for intermodal transportation. In determining the weight, Customer will take into account the tare weights of the container and chassis or trailer, the position of the vehicle tandems (if sliding) before loading, and the weight distribution of the cargo (including any blocking or bracing).
d. Special rules and requirements apply to shipments crossing the borders between the United States and Canada or Mexico. Customer should allow additional time for the Company and Carriers to process shipping information on cross-border shipments. The Company and the rail Carriers assess additional charges for shipments that do not comply with customs requirements or that must be set off from the train in transit because of inspection, paperwork, or other customs-related issues. By tendering freight to the Company, Customer will be conclusively presumed to agree to cooperate, and to require the beneficial cargo owners, consignors, and consignees to cooperate reasonably with each other, the Company, and the Carriers, in defending against Claims or proceedings by Governmental Authorities alleging violations of customs, import, export, border-crossing, transportation, or related laws or regulations, or breach of customs bond conditions. For intermodal shipments, the Company and the rail Carriers will hold shipments at the origin ramp or at intermediate ramps, or may prevent the shipment from entering the terminal gate, if customs and other documentation is not provided when the shipment arrives at the origin terminal. Customer is responsible for all origin storage charges, equipment per diem charges, and other costs until complete and accurate documentation is received. There will also be delays if a customs authority decides to inspect a shipment. Customer is responsible for all drayage, loading, and unloading charges; customs brokerage costs; filing costs; and other costs associated with government inspections or documentation requirements for cross-border shipments.
10. Import-Export Services
The Company acts as Customer's agent for the purpose of performing duties in connection with the entry and release of Goods, post-entry services, securing export licenses, filing export documentation on behalf of Customer, and other dealings with Governmental Authorities, and when arranging transportation, handling, and storage with Carriers and other third parties on behalf of and in the name of Customer.
a. Customer will provide complete and accurate information required for submitting import and export documentation to Governmental Authorities. Customer acknowledges that it must review all documents and declarations prepared or filed with any customs service, other Governmental Authority, or Carrier, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer's behalf. Customer is advised that submitting incomplete or inaccurate information related to an import entry, including descriptions, quantities, weights, purchase prices, discounts, commissions, changed selling prices at the time of exportation, assists, importer security filing data, or country of origin, may expose Customer to severe governmental penalties, fines, or sanctions, or to delays in transportation or release of a shipment.
b. Customer will indemnify, defend, and hold the Company harmless from all Claims resulting from Customer's failure to disclose information; Customer's provision of inaccurate or incomplete entry, export, or security information or data, shipping details, or documents; or any incorrect or false statement by Customer on which the Company has relied. CUSTOMER'S INDEMNITY OBLIGATIONS WILL APPLY NOTWITHSTANDING ANY NEGLIGENCE ON THE PART OF THE COMPANY, INCLUDING ANY FAILURE BY THE COMPANY TO IDENTIFY A CUSTOMER OR THIRD-PARTY DOCUMENTATION ERROR.
c. Where the Company is arranging importation or exportation on behalf of Customer, Customer will furnish to the Company, within the timeframes required by applicable law and in any event a reasonable time before the Goods arrive at the initial port of entry or exit, invoices in proper form and other documents necessary or useful for preparing the entry and export documentation, and any further information needed to establish dutiable value, classification, and admissibility or exportability. If Customer does not timely furnish that information or those documents, in whole or in part, or if what it furnishes is inaccurate or incomplete, the Company will be obligated only to use reasonable judgment in connection with the shipment and may, in its sole discretion and without liability to Customer, refuse to make any export- or import-related filing. Where a bond is required for the production of any document or the performance of any act, Customer will be bound by the terms of the bond even though the Company executed the bond as principal, it being understood that the Company entered into that undertaking at Customer's request and on Customer's behalf; Customer will indemnify and hold the Company harmless for the consequences of any breach of the bond's terms. The Company will not be responsible or liable for any increased duty, tax, penalty, fine, cost, or expense unless caused by the Company's negligence or willful misconduct, in which case the Company's liability to Customer will be limited as provided in these Conditions. Customer is bound by, and warrants the accuracy of, all invoices, documents, and information furnished to the Company by Customer or its agent for export, entry, or other purposes.
d. For purposes of this Section 10, "customs services" has the meaning of "customs business" in 19 C.F.R. § 111.1. Customer acknowledges that the Company has no obligation to provide customs business-related services unless and until Customer issues the Company a valid power of attorney and agrees to be bound by these Conditions. Customer also acknowledges that customs services are separate from any ancillary transportation, handling, or storage the Company may arrange or provide, which are covered by other provisions of these Conditions.
e. Customer is responsible for knowing and complying with all licensing, classification, valuation, marking, and other Governmental Authority requirements, and all laws, regulations, and rules of any Governmental Authority with jurisdiction over the shipment. The Company is not responsible for any action taken, or any liquidated damages, fines, or penalties assessed by any Governmental Authority against the shipment, because of Customer's failure to comply with (i) applicable laws, statutes, regulations, or rules, or (ii) these Conditions or the terms of any power of attorney. The Company has no duty to take any pre- or post-customs-release action, including obtaining binding rulings, advising of liquidations, or filing petitions or protests.
f. The Company has no obligation to keep or maintain records on behalf of Customer, and will keep and maintain only the records that the Company itself is required to keep by laws or regulations specifically applicable to the Company. Customer acknowledges that under Sections 508 and 509 of the Tariff Act, as amended (19 U.S.C. §§ 1508 and 1509), and the related regulations (including 19 C.F.R. Parts 141 and 142), Customer has the duty to maintain, and is solely liable for maintaining, all required records.
g. For Customer's benefit, the Company provides the following notice under 19 C.F.R. § 111.29(b)(1): "If you are the importer of record, payment to the broker will not relieve you of liability for customs charges (duties, taxes, or other debts owed CBP) in the event the charges are not paid by the broker. Therefore, if you pay by check, customs charges may be paid with a separate check payable to the 'U.S. Customs and Border Protection' which will be delivered to CBP by the broker."
h. Customer agrees that the Company's liability is limited as provided in Section 15, and that the Company is not liable for loss, damage, misdelivery, or delay of any shipment caused by or arising from the acts, omissions, negligence, or willful misconduct of Carriers, customs brokers, forwarders, or agents to whom the Goods may be entrusted.
i. Customer acknowledges that it may be necessary or beneficial for the Company to use third-party customs brokers and other documentary agents in certain locations, and authorizes the Company to engage them. Customer also acknowledges that these third parties typically limit their liability and that, by authorizing the Company to engage them on Customer's behalf, Customer agrees to be bound by those limitations. Unless higher liability is obtained under Section 15(l), any valuation Customer places on a shipment applies solely for export or customs purposes, and the shipment will be transported subject to all restrictions and limitations of liability in these Conditions, including Section 15, and any others that apply to the Goods.
11. Warehouse Services
The following additional terms apply when the Company provides Warehouse Services for Customer. If these Conditions conflict with the terms of any warehouse receipt issued by the Company, the warehouse receipt governs.
a. Customer will ensure that all Goods are delivered to the Facility properly marked and packaged for storage and handling. At or before delivery, Customer will furnish a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. For any imported Goods, Customer will be the importer of record and is solely responsible for all duties, taxes, and fees on those Goods.
b. Customer will ensure that all Goods shipped to any Facility identify Customer on the Bill of Lading or other contract of carriage as the named consignee, in care of the Company, and do not identify the Company as the consignee. If Goods are shipped to the Company as the named consignee, Customer will immediately notify the Carrier in writing, with a copy to the Company, that the Company is the "in care of" party only and has no beneficial title or interest in the Goods. The Company may refuse such Goods and will not be liable for any loss, misconsignment, or damage of any kind to or related to them. Whether the Company accepts or refuses Goods shipped in violation of this Section, Customer will indemnify and hold the Company harmless from all Claims for transportation, storage, handling, and other charges relating to those Goods, including undercharges, rail demurrage, driver, truck, or intermodal equipment detention, and any other charges.
c. No Goods will be delivered or transferred to the Company for Warehouse Services until the Company receives Customer's complete written instructions. Written instructions include facsimile, EDI, email, or similar communication, and the Company has no liability when relying on the information in the communication as received. Goods may be delivered on telephone instructions in accordance with Customer's prior written authorization, but the Company is not responsible for loss or error caused by following or not following telephone instructions.
d. When Goods are ordered out of the Facility, the Company will be given a reasonable time to carry out the instructions. If it is unable to do so because of force majeure, because of loss of or damage to Goods for which the Company is not liable, or because of any other excuse provided by law, the Company is not liable for failing to carry out the instructions, and Goods remaining in storage continue to be subject to regular storage charges.
e. Labor provided by the Company for work other than ordinary Warehouse Services will be charged to Customer at the Company's then-current standard hourly labor rate or other charges agreed in writing by Customer and the Company. Special services requested by Customer, including compiling special stock statements; reporting marked weights, serial numbers, or other data from packages; physical checks of Goods; and handling transit billing, are subject to a charge. Any physical inventory work, including an annual or quarterly physical inventory, will be done at Customer's request and expense at an hourly labor rate set by mutual agreement. Dunnage, bracing, packing materials, or other special supplies may be provided to Customer at a charge in addition to the Company's cost. By prior arrangement, Goods may be received or delivered outside usual business hours, subject to a charge. A charge in addition to regular rates will be made for merchandise in bond. Where a warehouse receipt covers Goods in U.S. Customs bond, the Company has no liability for Goods seized or removed by U.S. Customs.
f. The Company's custody of and liability for the Goods, and its burden of risk, do not begin until both of the following have occurred: (1) the Company has physically opened the Trailer delivering the Goods into the Facility to transload the Goods into another Trailer or to place them in the Facility for storage; and (2) the Company has signed the Bill of Lading or delivery receipt for that inbound load. The Company's custody, liability, and burden of risk end once the Goods have been loaded into the outbound Trailer, the Trailer has been sealed, and the outbound carrier has been notified that the Goods are available for pick-up.
g. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO GOODS TENDERED, STORED, OR HANDLED, HOWEVER CAUSED, UNLESS THE LOSS OR DAMAGE RESULTED FROM THE COMPANY'S FAILURE TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES, AND THE COMPANY IS NOT LIABLE FOR DAMAGES THAT COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. GOODS ARE NOT INSURED BY THE COMPANY AGAINST LOSS OR DAMAGE, HOWEVER CAUSED. WHERE LOSS OR DAMAGE OCCURS TO TENDERED, STORED, OR HANDLED GOODS FOR WHICH THE COMPANY IS NOT LIABLE, CUSTOMER WILL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF THOSE GOODS AND FOR THE COST OF ANY ENVIRONMENTAL CLEANUP AND SITE REMEDIATION RESULTING FROM THE LOSS OR DAMAGE.
h. If the Company negligently misships Goods, the Company will pay the reasonable transportation charges incurred to return the misshipped Goods to the Facility. If the consignee does not return the Goods, the Company's maximum liability for the lost or damaged Goods is as set out in Section 15, and the Company has no liability for damages due to the consignee's acceptance or use of the Goods, whether they are Customer's Goods or another's.
i. If a physical inventory shows that Goods have been lost, stolen, or damaged, or are missing, on a net basis (after netting against Goods gains, without regard to commodity groups) in excess of an allowance of one-half of one percent (0.5%) of the annual throughput with the Company over the twelve (12) months immediately preceding the inventory reconciliation (or, if less than twelve months of data is available, on an annualized basis using the data available), the Company will compensate Customer for the net loss of Goods based on Customer's landed cost. "Landed cost" means manufacturer's cost plus transportation costs as shown on Customer's books and records maintained in the ordinary course of business, consistent with past practice and in accordance with U.S. generally accepted accounting principles consistently applied. "Annual throughput" means the manufacturer's cost of all Goods received at the Facility plus the manufacturer's cost of all Goods shipped from the Facility, divided by two. If the net inventory variance in a physical inventory is an overage and the Company paid for a shortage after the preceding physical inventory, Customer will refund the Company based on the overage, but only up to the amount of the shortage the Company paid. Any presumption of conversion imposed by law does not apply to such loss, and a Claim by Customer for conversion must be established by affirmative evidence that the Company converted the Goods to its own use.
j. If at any time Customer's records and the physical inventory do not match, the Company and Customer will exchange their records of all inventory adjustments from the previous reconciliation to the inventory count in which the discrepancy was found, and the Company's records will be presumed correct absent evidence to the contrary.
k. The Company may, at its expense and fourteen (14) days after giving notice, move any Goods in storage from the Facility in which they are stored to any other Company facility. The Company may store the Goods at, and may without notice move them within and between, any warehouse buildings the Company controls. The Company may also, on at least thirty (30) days' written notice to Customer, require removal of any Goods from the Facility. If the Goods are not removed before the end of the notice period, the Company may sell them in accordance with applicable law. If the Company in good faith believes the Goods are about to deteriorate or decline in value to less than the amount of the Company's lien before the end of the 30-day notice period, the Company may specify in the notice any reasonable shorter time for removal, and if the Goods are not removed, may sell them at a public sale held one week after a single advertisement or posting as provided by law.
l. If, because of a quality or condition of the Goods of which the Company had no notice at the time of deposit, the Goods are a hazard to other property, to the Facility, or to persons, the Company may sell the Goods at public or private sale without advertisement on reasonable notice to all persons known to claim an interest in them. If, after reasonable effort, the Company cannot sell the Goods, it may dispose of them in any lawful manner and will incur no liability for doing so. Pending disposition, sale, or return of the Goods, the Company may remove them from the Facility and will incur no liability for doing so.
m. On any termination of the Warehouse Services, Customer will remove all Goods from the Facility before the termination effective date. The Company may require that all outstanding charges be paid before it releases any remaining Goods from the Facility.
n. If this Section 11 conflicts with any other provision of these Conditions that imposes liability on the Company for loss of or damage to Goods for which the Company is providing Warehouse Services, this Section 11 governs to the extent of the conflict.
12. Air Transportation Services
Any air transportation for which the Company issues its own Bill of Lading as the "carrier" (as opposed to, for example, a Bill of Lading issued by the Company as agent for the underlying air Carrier, or a waybill issued directly to Customer by the underlying air Carrier) is subject to and governed by the terms of the Bill of Lading issued by the Company. If that Company-issued Bill of Lading conflicts with these Conditions, the Bill of Lading controls. Where the Company arranges air transportation but does not issue its own air waybill, these Conditions govern the rights and obligations between the Company and Customer, and Customer agrees that its rights and obligations with respect to the underlying air Carrier are governed by the waybill issued by that Carrier.
13. International Ocean Transportation Services
Any international ocean transportation provided by the Company as a non-vessel-operating common carrier, as defined in 46 C.F.R. Part 515, is subject to and governed by the terms of the Bill of Lading and the applicable tariff issued by that Company, and is not subject to these Conditions. The Company's Bill of Lading terms are available by calling +1.734.282.7200, by emailing info@solowp.com, or at www.solowp.com. The Company has a policy against the payment, solicitation, or receipt of any rebate, directly or indirectly, that would be unlawful under the United States Shipping Act of 1984, as amended. Where the Company arranges international ocean transportation but does not issue its own ocean Bill of Lading, these Conditions govern the rights and obligations between the Company and Customer, and Customer agrees that its rights and obligations with respect to the underlying ocean Carrier are governed by the bill of lading issued by that Carrier.
14. Insurance
a. Customer is responsible for maintaining property insurance covering the Goods, both in storage and in transit, including during loading and unloading.
b. Customer may consult an insurance broker to arrange insurance appropriate to its needs. Alternatively, where the Company agrees, the Company may offer, for an additional cost and through its designated insurance broker, to arrange for shipment-specific cargo policies to be issued in Customer's name. Once any such policy is issued through the insurance underwriter, the Company has no further duty regarding cargo insurance and no liability for loss of, delay of, or damage to the Goods during transport or storage, whether or not the Goods are covered by insurance, and whether or not the loss, delay, or damage was caused or contributed to by the Company's negligence, its breach of these Conditions, or otherwise. Any coverage on the Goods is subject to the terms and conditions of the specific policy or policies obtained. The Company is not liable if Customer, for any reason, fails to recover a loss in whole or in part from the insurer under any applicable policy, even if the premium charged by the insurer differs from the Company's charges to Customer. Customer agrees that the Company's role is limited to facilitating placement of coverage with entities licensed to sell insurance, and that the Company is not in the business of selling insurance or insuring risk.
15. Loss or Damage Claims and Limitations of Liability
a. Except as otherwise expressly stated in these Conditions, the Company is not liable for any claims for loss of or damage to Goods, except to the limited extent that Customer's direct damages are directly and proximately caused by the Company's negligence or willful misconduct. Any liability of the Company for such a claim is limited in accordance with these Conditions.
b. For Claims related to loss, damage, or delay of Goods where the Company has arranged, whether as an air, surface, or ocean freight forwarder or as a Property Broker, for a Carrier to perform the Services, the Company's sole responsibility under these Conditions is to facilitate settlement of, or assist in filing, the Claim between Customer or the owner of the Goods and the applicable Carriers. The Carrier's liability is subject to any applicable convention, law, rule, or regulation, and may be further limited by the Carrier's terms and conditions of service or by the contractual arrangements between the Company and the Carrier. Customer acknowledges and agrees that Carriers have limitations of liability that restrict Customer's recovery on such claims and that, except as otherwise expressly stated in these Conditions, the Company has no obligation to ensure that Carriers accept full-value liability for Goods.
c. As a condition of filing a claim against the Company, and of the Company assisting with the submission of any Claim for loss, damage, or delay of Goods, Customer, on its own behalf and on behalf of the owner of the Goods, must provide the Company with all information relating to the Claim:
1) for Goods moving by all-ground transportation (other than shipments covered by item 4 below), within 30 calendar days after the date of delivery;
2) for Claims for loss of or damage to Goods during Warehouse Services, by the earlier of (i) 60 calendar days after delivery of the Goods at the Facility to the outbound carrier for transportation out of the Facility, or (ii) 60 days after the Company notifies Customer that loss of or damage to part or all of the Goods has occurred;
3) for Claims arising out of the Company's preparation or submission of import entries or other customs brokerage Services, by the earlier of ninety (90) days after the date of liquidation of the entry or ninety (90) days after the date of the event giving rise to the Claim;
4) where the Company provides motor carrier transportation using vehicles operating under its motor carrier authority, within nine (9) months after the date of delivery or, for lost shipments, within nine (9) months after the expected delivery date;
5) for Claims arising out of ocean transportation, within the time period in the applicable ocean Bill of Lading or 60 days after the date of delivery, whichever is earlier; and
6) for Claims arising out of international air transportation, within the time period in the applicable Bill of Lading or 7 days after the date of delivery, whichever is earlier.
d. Customer recognizes that Carriers may impose claim-filing time limits and agrees that Carriers may validly deny claims filed after those limits.
e. For shipments where the Company performs Services as a motor carrier operating vehicles owned by or leased to the Company, the Company assumes liability for loss of and damage to Goods in accordance with its applicable published tariff, up to the maximum liability set out in that tariff (which generally includes per-package or per-pound limits and a maximum liability of $100,000 per trailer, container, or other conveyance), unless Customer has followed the procedures in that tariff for declaring a higher limit of liability.
f. Neither the Company nor the Carrier is liable for: (1) damage to Goods or equipment to the extent due to packaging, loading, unloading, blocking, bracing, or securing of the Goods; (2) damage to Goods or equipment to the extent due to inherent vice or defect in the Goods, including rusting of metals, swelling of wood caused by humidity, moisture, or condensation, deterioration of perishable products, or damage caused by heat or cold; (3) damage to Goods or equipment to the extent due to force majeure events as described in these Conditions; (4) damage to Goods or equipment to the extent due to an act, omission, or default of Customer, including the consignor, the consignee, the beneficial owner of the Goods, or any other third-party logistics provider; (5) shipments stopped and held in transit at Customer's request; or (6) loss of or damage to Goods that violate any applicable law or regulation, that have not been accurately described, or that have been loaded in a Trailer so that the combined weight exceeds applicable weight limits. Customer will defend, indemnify, and hold the Company and the Carriers harmless from any Claim for loss, damage, or delay of Goods in excess of the liabilities assumed under, or the limitations contained in, these Conditions, or filed other than in accordance with these Conditions.
g. Neither the Company nor any Carrier has any liability for loss, damage, or delay of Goods or shipments occurring in Mexico. If this geographic limitation is determined to be ineffective for any reason, the Company's and the Carrier's liability for loss or damage in Mexico will be limited to the lesser of (1) five U.S. cents per pound (US$0.05 per pound) or (2) the standard liability limit under Mexican law then in effect for uninsured goods for which no higher value has been declared, and claims for such losses in Mexico must be made within the time limits provided under Mexican law.
h. If a shipment arrives with visible or obvious damage to or loss of Goods, Customer must notify the Company promptly. Carriers may treat failure to give that notice as a waiver of Customer's loss and damage claim or as creating a presumption that the loss or damage occurred after delivery. Customer will (or will cause its consignee to) preserve and make available to the Company and the Carriers all damaged Goods, the packaging, blocking, and bracing, and the Trailer in which the Goods were transported. Any failure by the Company or the Carrier to inspect a damaged shipment does not change the burden of proof and is not an admission of liability by the Company or any Carrier.
i. If there is a Claim for loss of or damage to Goods, Customer will not withhold or set off payment of outstanding invoices and will pay those invoices in full.
j. Customer must mitigate its damages for loss of or damage to Goods and may not abandon the Goods to the Company or the Carrier. If Customer does not elect to salvage the Goods, any Claim for loss of or damage to the Goods will still be reduced by a reasonable salvage allowance and by reasonable storage or other costs incurred while waiting for disposition instructions.
k. Notwithstanding anything else in these Conditions, the Company's maximum liability for loss of or damage to Goods in any one occurrence, whether the Claim is based in contract, tort, or otherwise, is limited as follows:
-
For loss or damage in connection with transportation management or brokerage services provided by the Company, the lesser of (1) the management fee the Company received for that shipment of Goods or (2) $500.
-
For loss or damage in connection with Warehouse Services, the lesser of (1) $5,000 per occurrence or (2) Customer's landed cost of the lost or damaged Goods.
-
For loss or damage in connection with services where the Company acts as agent for and on behalf of Customer, including customs brokerage, export filings, and arranging storage, handling, or transportation with third parties in the name and on behalf of Customer, the lesser of (1) $50.00 per occurrence or (2) the fees paid to the Company for the particular service.
-
For loss or damage, including loss of or damage to Goods in transit, in connection with any other Services provided by the Company, the least of (1) the freight charges imposed for those Goods, (2) two thousand dollars ($2,000.00), or (3) the liability of the Carrier under the applicable Bill of Lading.
l. If Customer wants the Carrier to accept liability above the underlying Carrier's limit of liability for loss of and damage to Goods, Customer must give the Company at least 5 business days' advance written notice (by emailing info@solowp.com or calling +1.734.282.7200), obtain a special Quote from the Company, prepay the shipping charges before pick-up, and enter into a written agreement expressly stating that full-value liability will apply. If Customer does not do all of these things, the Company and the Carriers involved in the transportation are released from liability above the otherwise applicable limits. The Company does not offer to arrange full-value (for example, Carmack) liability for intermodal or motor carrier shipments that originate outside the United States.
m. Unless the Company agrees otherwise, Customer is responsible for applying the seal to any Trailer tendered for Services. If the seal originally applied to the Trailer is intact on delivery, neither the Company nor the Carriers are liable for shortage or theft unless there is physical evidence of unauthorized entry into the Trailer while it was in the Carrier's possession and proof of actual damage to or loss of Goods. Shortage or theft claims must be supported by seal records and actual loading and unloading records. The same release from liability for shortage or theft applies if the seal is broken (1) at the direction and under the supervision of a Governmental Authority and the Trailer is resealed after inspection by that Governmental Authority, or (2) because it becomes reasonably necessary to inspect, reposition, or protect the cargo or the Trailer, or to comply with applicable laws or regulations. In both cases, the Company will ask the Carrier to document the breaking of the original seal and the application of a new seal. Without other evidence, a missing or broken seal does not create a presumption of loss to or contamination of the Goods. The consignee may not refuse delivery of a shipment, even for food-grade loads, because of broken or missing seals unless there is direct physical evidence of product tampering or contamination beyond the broken or missing seal. Contamination Claims must be supported by appropriate quality inspections documenting the full actual loss.
n. Customer may not reject a shipment, in whole or in part, because of ants or other insects on the outside of packaging. Without other evidence, the presence of ants or other insects does not create a presumption of loss to or contamination of the Goods.
16. Indemnity
a. Except for Claims for loss of or damage to Goods, which are governed by Section 15, or as otherwise stated in these Conditions, the Company will defend, indemnify, and hold Customer and its employees and agents harmless from all Claims arising out of the Company's performance under these Conditions to the extent the Claim is directly and proximately caused by (1) the negligence or intentional misconduct of the Company; (2) the violation of applicable laws or regulations by the Company or its employees or agents; or (3) the failure of the Company or its employees or agents to comply with these Conditions; except, in each case, to the extent the Claim is for consequential, punitive, or special damages or results from the negligence or other wrongful conduct of Customer or a Carrier.
b. Except for Claims for loss of or damage to Goods, which are governed by Section 15, Customer will defend, indemnify, and hold the Company and its employees and agents harmless from all Claims arising out of Customer's acts or omissions where the Claim is caused by (1) the negligence or intentional misconduct of Customer; (2) the violation of applicable laws or regulations by Customer or its employees or agents; (3) the failure of Customer or its employees or agents to comply with these Conditions; (4) the failure of Customer or its employees or agents to comply with obligations imposed by underlying Carriers; or (5) the Company's compliance with or reliance on Customer's instructions; except, in each case, to the extent the Claim is for consequential, punitive, or special damages or results from the negligence or other wrongful conduct of the Company or a Carrier.
c. If Customer or the Company receives a Claim for which the other is responsible as the indemnifying party, the party receiving the Claim will promptly notify the other and provide reasonable assistance and the information requested in defending the Claim.
17. Right of Detention and Lien
a. All Goods (and documents relating to Goods) are subject to a particular and general lien and right of detention for money owed, whether for those Goods or for any particular or general balance or other money owed, whether or not then due, by Customer, the consignor, the consignee, or the owner of the Goods to the Company. To protect its lien, the Company may, but is not required to, require advance payment of all charges before shipment of Goods.
b. If amounts remain unpaid for 28 days after the Company sends Customer notice that it is exercising its rights, by any means of communication reasonable in the circumstances, the Company may sell the Goods by private contract or otherwise, in its sole discretion, and apply the net proceeds to the money owed. The Company is not liable for any deficiency or reduction in value received on the sale, and Customer is not relieved of liability merely because the Goods have been sold.
18. Force Majeure
Neither the Company nor any Carrier is liable to Customer for delay in or failure to perform the Services during any time in which performance is prevented by fire; explosion; act of God (including floods, hurricanes, tornadoes, earthquakes, severe weather, and natural disasters); strike, lockout, or labor shortage or disturbance; war, plague, pandemic, terrorism, embargo, quarantine, riot, civil disobedience, hijacking, or robbery; congestion, derailment, or service issues affecting the Carriers; closures of or disruptions affecting highways, rail networks, ports, air traffic, or other transportation systems; acts of any Governmental Authority or customs inspection requirements; acts or omissions of Customer; or any other cause outside the reasonable control of the Company or the Carrier. The Company will notify Customer of any such delay or inability to perform within a reasonable time.
19. Severability; Survival
If any part of these Conditions violates any law, or any provision is held by a court of competent jurisdiction to be invalid or unenforceable, that part or provision is severable and the remaining provisions of these Conditions continue in full force and effect. The representations and obligations of the Parties survive termination of these Conditions for any reason.
20. Non-Waiver; Remedies
A Party's delay or failure to insist on performance of any of these Conditions or to exercise any right or privilege, or its waiver of any breach, does not waive those terms, rights, or privileges, which continue in full force and effect as if no forbearance, waiver, or delay had occurred. A Party's consent to or approval of any act requiring consent or approval does not waive or make unnecessary consent to or approval of any later similar act. The Company and Customer waive all rights and remedies provided by Part B of Subtitle IV of Title 49 of the U.S. Code to the extent those rights and remedies conflict with these Conditions. The Company's rights and remedies under these Conditions are cumulative, and its pursuit of any one of them does not prevent it from pursuing any other available right or remedy.
21. Governing Law and Venue
These Conditions and the Services are governed by the laws of the State of Michigan, U.S.A., without regard to its choice-of-law or conflict-of-law rules. Any lawsuit involving these Conditions or the Services must be brought exclusively in the state or federal courts located in Wayne County, Michigan, and each Party submits to the exclusive personal jurisdiction of those courts.
22. Limitation of Actions; Responsible Entity; Disclaimers
a. Other than Claims for loss, damage, or delay of Goods or invoice disputes, any action against the Company, whether based in contract or tort, is waived unless started within two (2) years after the date of the conduct giving rise to the Claim.
b. Any action to recover for loss of or damage to Goods is waived unless started: (1) for loss or damage during over-the-road transportation, within two years after the date the Company or the motor Carrier denies all or any part of the Claim; (2) for loss or damage during rail transportation, within one year after the date the Company or the rail Carrier denies all or any part of the Claim; (3) for loss or damage during air or ocean transportation, within the time limit in the air or ocean Bill of Lading or other terms governing that transportation; (4) for loss or damage during Warehouse Services, by the earlier of (i) nine months after the Company delivers the Goods to the outbound Carrier or (ii) nine months after Customer is notified that loss of or damage to part or all of the Goods has occurred; and (5) for loss or damage from any other source, within two years after the date the loss or damage occurred.
c. For each individual request by Customer for Services, the rights and obligations under these Conditions apply only to the particular Company that actually performs the requested Services. Customer has no rights against any Company other than the legal entity actually providing those Services. Carriers will seek recourse only against the particular Company that performed the Services for the applicable Goods. Nothing in these Conditions imposes any liability or obligation, to Customer or any third party, on any Company other than the particular Company that performs the Services to which the liability or obligation relates.
d. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR DAMAGES FOR LOSS OF PROFITS, USE, OR OPPORTUNITY, WHETHER OR NOT THOSE DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
e. THE SERVICES ARE PROVIDED "AS IS," AND THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS RELATING TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM, OR USAGE OF TRADE RELATED TO THE SERVICES PROVIDED UNDER THESE CONDITIONS.
Questions about these Conditions may be sent to info@solowp.com or by calling +1.734.282.7200.
