Terms and Conditions
NOW COURIER, INC.
- Application of Standard Terms and Conditions and Bill of Lading. The provisions of these Standard Terms and Conditions (the “Terms”), as amended, shall apply to services provided by Carrier in interstate, intrastate and/or foreign commerce between points in North America, except that the provisions of the Terms shall not apply to any services or transportation provided in Mexico. The provisions of the Terms may be waived in a written agreement signed by Carrier and a Customer. For purposes of the Terms, the term “Customer” shall mean any entity responsible for requesting that Carrier provide services governed by the Terms, any entity responsible for payment to Carrier for such services, or any entity receiving the benefit of such services.
Unless expressly disclaimed by a written agreement signed by Carrier and Customer, the Terms shall apply to all services provided by Carrier that are otherwise within the scope of the Terms (including services performed pursuant to a short form rate confirmation or “spot” move agreement which such agreement does not specifically disclaim the provisions of the Terms) and the terms and conditions of Carrier’s standard bill of lading shall apply notwithstanding the use of any other bill of lading or shipping document. If there is a conflict between the terms and conditions of the Terms and the terms and conditions on any air bill, manifest, label, bill of lading, or other transit documentation, the terms and conditions of the Terms, as amended, modified, changed, or supplemented, will control.
2. Mileage. Mileage shall be calculated using commercially acceptable means of estimating distance traveled.
3. Notice and Amendments. Upon written request, Carrier will provide a Customer with copies of all applicable rules circulars and rates. When the Terms is amended by revised pages, the cancellation of prior pages will be affected by means of this item. A revised page will not show a cancellation notice for the prior version. A revised page takes effect at 12:01 A.M. Eastern time as of the Effective Date shown thereon and cancels any and all uncancelled revised or original pages, or uncancelled portions thereof.
4. Rates and Schedules. Rates and schedules may be published in rate catalogues or sheets, on a shipper specific basis or pursuant to a spot market rate quotation. Rates and service quotations are good faith estimates based upon information provided to Carrier, but final rates and service may vary based upon the shipment actually tendered, unknown circumstances, and incorrect or incomplete information.
5. Payment. Absent a written waiver by Carrier or contractual specification to the contrary, all freight transportation and related charges are due and payable within fifteen (15) days of invoice date. Customer, consignee, and owner of the goods are jointly and severally liable for the payment of all unpaid transportation charges, advances, and disbursement of Carrier. Carrier shall be indemnified of such charges, including all collection and legal expenses which Carrier may incur during the course of any action Carrier may take to enforce collection of outstanding charges due to Carrier. Approved methods of payment are ACH and Check. A 3% convenience charge applies to all credit card payments and/or orders.
6. Delinquent Accounts. Payments received more than 30 days after the date of Carrier’s bill will be assessed a late payment fee equal to 1.5% of the total freight bill for each 30-day period or portion thereof, from the date of the Carrier’s freight bill until the date the payment is received, in addition to all other charges. In any action to recover unpaid freight bills from delinquent accounts, Carrier shall be entitled to interest, reimbursement for reasonable attorney’s fees, court costs and any related fees associated with the collection or attempted collection of past due bills.
7. Additional Costs. Whenever Carrier incurs costs due to Customer requirements, the customer shall be invoiced at 100% of any and all fees, charges, repairs, replacements and/or general expenses associated with those incurred costs.
8. Lien Rights. Carrier shall have a possessory lien on shipments and any proceeds therefrom in its dominion and control for the payment of any amounts due and owing to Carrier. In addition, to the extent permitted by applicable law, Carrier will have a general lien on any goods that have come or will come into its possession, and on any proceeds thereof, for any and all charges due and owing to Carrier regardless of whether those charges related to the goods or proceeds against which the general lien is enforced.
9. Application of Accessorial Charges. In addition to line haul or base transportation rates, accessorial charges and fees are applicable, unless otherwise agreed upon by Carrier and Customer.
10. Loading and Unloading. Rates in the Terms contemplate loading of cargo by the consignor and unloading by the consignee, except that if the Customer, consignor or consignee requests that Carrier furnish outside labor to load or unload, all charges for such outside labor will be passed through to Customer, who will be billed of actual time of outside labor. If the driver or any other Carrier personnel is requested to assist with loading and/or unloading, an hourly charge will be assessed in addition to all other applicable charges.
a. When Carrier’s vehicles are delayed or detained at premises of consignor or consignee, or other places designated by consignor or consignee for loading or unloading, the following charges will be assessed which will be in addition to all other lawful transportation charges.
b. Time per vehicle shall begin upon notification by driver to the consignor or consignee that the vehicle is available for loading or unloading, and end upon completion of loading or unloading and receipt by driver of a signed bill of lading or delivery receipt.
12. Fuel Surcharge. Absent Carrier’s written waiver, a fuel surcharge shall be applied. The calculated fuel cost is determined using the U.S. Department of Energy’s Energy Information Administration U.S. National Average price published each week for regular unleaded fuel or diesel depending on vehicle type.
Adjustments, if any, in surcharges will be made bi-weekly effective for shipments picked up the calendar day following the calendar day of publication of each week’s price. The surcharge shall be applied and utilize the criteria established herein regardless of whether shipments are entirely within the U.S., involve the U.S. and Canada, or entirely within Canada.
13. Special Permits or Fees. Any fees paid to any Federal, State or Municipal Government or Canadian Authority, or any subdivision thereof for special permits as may be required in connection with such movement will be added at a cost plus a reasonable mark up.
14. Tolls. In concert with mileage calculations, toll charges will be assessed in addition to any and all other lawful transportation and related charges.
15. Vehicle Furnished But Not Used. When an order is canceled after a vehicle has already been dispatched with pickup orders, fees will be charged at the applicable round trip rate based on the type of equipment ordered for all miles from the point of dispatch to point of pickup times the applicable rate per mile, and subject to a minimum charge of equal to the base or mileage rate; whichever is greater, of the original service request.
16. Carrier Liability and Released Value.
a. Carrier’s liability for loss, damage, destruction or delay to cargo transported shall be that of a motor carrier as set forth in the Carmack Amendment currently codified at 49 U.S.C. § 14706 (Carmack), as amended from time to time, regardless of whether transport is interstate or intrastate, or involves foreign commerce. Unless a higher value is declared by Customer in accordance with the provisions herein and the additional freight charges applicable to such declaration have been paid, Carrier’s liability for loss, damage, or delay as to any shipment shall not exceed $50,000 per trailer or conveyance.
b. Declaring value in excess of $50,000.
- Carrier must be notified at the time it agrees to transport cargo that a value in excess of $50,000 will be declared, and the amount that will be declared. The released value shall be valid (meaning Carrier’s $50,000 limitation of liability shall apply) unless Carrier has agreed in writing signed by an authorized representative to accept the cargo at the declared value.
- The declared value must be clearly stated as such on the face of the bill of lading.
c. In no event shall Carrier’s liability exceed the lesser of the actual value of the cargo or the declared value.
d. The value of shipments involving documents (including checks, bonds, stock certificates, or any other negotiable or non-negotiable instrument), records and data records, without limitation as to the type, including but not limited to electronic or paper hard copy, shall be limited to the value of the actual media upon which it is contained. Further, no costs, expenses, or claims of any nature will be assumed or accepted which is associated with the replication, duplication or recreation of lost data or documentation. For example, in the case of paper documents the value shall be limited to the value of the paper.
e. Regardless of commodity shipped or valuation, all transportation charges must be paid in full before any settlement for a claim for loss or damage will be made. No payor or other party with an interest in a shipment may deduct or offset any cargo loss, damage, or delay claims from any freight charges owed to Carrier. Carrier reserves the right, at its sole discretion, to either credit an account or provide an actual refund for any sums determined to be owed by Carrier.
f. The valuation as determined by the provisions of this item shall be the maximum liability in connection with a shipment of the specific cargo, including, but not limited to, any loss, damage, delay, misdelivery, non-delivery, misinformation, any failure to provide information, or misdelivery of information relating to the shipment. It is the shipper’s responsibility to prove actual damages. Exposure to and risk of any loss in excess of the released value provisions or declared value provisions as provided for in this item is assumed by the shipper.
g. Carrier shall not be liable for punitive, exemplary, indirect or consequential damages including, but not limited to, loss of profit or income, whether or not Carrier has knowledge that such damage may be incurred.
17. Filing of Cargo Claims.
a. Claims in Writing Required. Claims for loss, damage, injury, or delay to cargo must be filed in writing, as provided in subparagraph (b) below, and as otherwise may be required by law.
b. Minimum Filing Requirements. The communication in writing from a claimant must be filed within fifteen (15) days after the delivery of the property. Claims must include:: (1) facts sufficient to identify the shipment (or shipments) or property involved, (2) assertion of liability for alleged loss, damage, injury, or delay, and (3) claim for the payment of a specified or determinable amount of money, will be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage.
c. Documents Not Constituting Claims. Notations of shortage or damage, or both, on freight bill, delivery receipts, or other documents will not be considered by Carrier as sufficient to comply with the minimum claim filing requirements specified in subparagraph (b) above.
d. Claims Filed for Uncertain Amounts. Whenever a claim is presented against Carrier for an uncertain amount, such as “$100 more or less,” Carrier will determine the condition of the shipment involved at the time of delivery by it, if it was delivered, and will ascertain as nearly as possible the extent, if any, of the loss or damage for which it may be responsible. It will not, however, voluntarily pay a claim under such circumstances unless and until a formal notification in writing for a specified or determinable amount of money will have been filed in accordance with the provisions of subparagraph (b) above.
e. Concealed Damage Claims. When damage to contents of a shipping container is discovered by the consignee which could not have been determined at the time of delivery, it must be reported by the consignee to Carrier upon discovery and a request for inspection by Carrier’s representative made by consignee. Notice of loss or damage and request for inspection may be given by telephone or in person, but in either event must be confirmed in writing by mail or overnight courier. If more than fifteen (15) days pass between date of delivery of shipment by Carrier and the date of report of loss or damage and subsequent request for inspection by consignee, it shall be the obligation of the consignee to offer reasonable evidence to Carrier’s representative when inspection is made that loss or damage was not incurred by the consignee after delivery of shipment by Carrier. While awaiting inspection by Carrier, the consignee must hold the shipping container and its contents in the same condition they were in when damage was discovered insofar as it is possible to do so.
f. Institution of Suits. Suit for loss, damage, injury or delay shall be instituted against Carrier no later than two years and one day from the day when written notice is given by the Carrier to the claimant that Carrier has disallowed all or any part of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, Carrier shall not be liable, and such claims will not be paid.
18. Investigations of Cargo Claims. Each claim for loss or damage to cargo filed against Carrier in the manner prescribed herein will be promptly and thoroughly investigated. Carrier reserves the right to require any and all other documentation it deems necessary, in its sole discretion, to investigate any claim. Regardless of the foregoing, each claim will be supported by the original bill of lading, evidence of the freight charges, if any, and either the original invoice, a copy of the original invoice, or an extract made therefrom, certified by the claimant to be true and correct. For shipments or any part thereof which are not delivered, Carrier reserves the right to require certification from the claimant that the missing cargo has not been received from any other source.
19. Acknowledgement of Claims. Carrier will, upon receipt in writing of a proper claim in the manner and required, acknowledge the receipt of such claim in writing to the claimant within 30 days after the date of its receipt by Carrier unless Carrier will have paid or declined such claim in writing within 30 days of the receipt thereof. Carrier will indicate in its acknowledgment to the claimant what, if any, additional documentary evidence or other pertinent information may be required by it to further process the claim as its preliminary examination of the claim as filed, may have revealed.
20. Processing of Salvage. Whenever baggage or material, goods, or other property transported by Carrier is damaged or alleged to be damaged and is, as a consequence thereof, not delivered or is rejected or refused upon tender thereof to the owner, consignee, or person entitled to receive such property, Carrier, after giving due notice whenever practicable to do so to the owner and other parties that may have an interest therein, and unless advised to the contrary after giving such notice, will undertake to sell or dispose of such property or by the employment of a competent salvage agent. Carrier will only dispose of the property in a manner that will fairly and equally protect the best interests of all persons having an interest therein. Carrier will make an itemized record sufficient to identify the property involved so as to be able to correlate it to the shipment or transportation involved and claim, if any, filed thereon. Carrier also will assign to each lot of such property a successive lot number and note that lot number on its record of shipment and claim, if any claim is filed thereon.
Whenever disposition of salvage material or goods will be made directly to an agent or employees of Carrier or through a salvage agent or company in which Carrier or one or more of its directors, officers, or managers has any interest, financial or otherwise, Carrier’s salvage records will fully reflect the particulars of each transaction or relationship, or both as the case may be.
Upon receipt of a claim on a shipment on which salvage has been processed in the manner hereinbefore prescribed, Carrier will record on its claim file thereon the lot number assigned, the amount of money recovered, if any, from the disposition of such property, and the date of transmittal of such money to the person or persons lawfully entitled to receive the same.
If Carrier does not receive disposition instructions within forty-eight (48) hours of sending its initial notice, Carrier may, in its sole discretion, attempt to issue a second and final confirmed notification. Such second notice shall advise that if Carrier does not receive disposition instructions within ten (10) days of that notification, Carrier may offer the shipments for sale at a public auction and Carrier has the right to offer the shipment for sale. If Carrier determines in its sole discretion that the potential for recovery will be prejudiced by such second notice period (e.g., where the goods to be salvaged are perishable), Carrier may shorten the second notice period or forego the second notice altogether. The amount of sale will be applied to the costs of the sale and Carrier’s invoice for transportation and other lawful charges. The owner will be responsible for the balance of the charges not covered by the sale of goods. If there is a balance remaining after all charges and expenses are paid, such balance will be paid to the owner of the property sold hereunder, upon written claim and proof of ownership.
21. Claims for Overcharge, Undercharge or Duplicate Payment.
a. “Overcharge” means an overcharge as defined in Section 49 U.S.C. § 14704(b). It also includes duplicate payments and unidentified payments as hereinafter defined when a dispute exists between the parties concerning such charges.
b. “Duplicate payment” means two or more payments for transporting the same shipment. Where one or more payment is not in the exact amount of the applicable rates and charges, refunds shall be made on the basis of the excess amount over the applicable rates and charges.
c. “Unidentified payment” means a payment which a carrier has received but which the carrier is unable to match with its open accounts receivable or otherwise identify as being due for the performance of transportation services.
d. “Claimant” means any shipper or receiver, or its authorized agent, filing a request with a carrier for the refund of an overcharge or duplicate payment.
e. “Undercharge” means charges for transportation services which are less than those applicable thereto.
22. Filing, Documenting, and Processing Claims. Claims for overcharge or duplicate payment shall be accompanied by sufficient information to allow Carrier to conduct an investigation and pay or decline the claim within 180 days of the date of the invoice. Claims shall include the name of the claimant, its file number and the amount of the refund sought to be recovered and shall be accompanied by the original freight bill along with all other documents or data in the possession of the claimant which substantiates the basis for the claim. Claims for duplicate payment shall be accompanied by the original freight bill(s) for which charges were paid and by applicable payment information.
If Carrier invoices the shipper, receiver or its authorized agent for charges for transportation services which are less than those applicable to such services, Carrier shall file an undercharge claim within 180 days of the date of the original invoice to the party responsible for payment of the freight charges. Carrier shall provide the amount of the undercharge sought to be recovered and such claim shall be accompanied by a copy of the original freight bill and a corrected freight bill along with all other documents or data substantiating Carrier’s claim.
23. Disposition of Unidentified Payments, Overcharges or Duplicate Payments Not Supported by Claims. If Carrier is not provided sufficient information with which to properly apply a payment, Carrier shall notify the payor of the unidentified payment within 60 days of receipt of the payment and request information which will enable it to identify the payment. If Carrier does not receive the information requested within 90 days from the date of the notice, Carrier may treat the unidentified payment as a payment of freight charges owing to it. Following the 90-day period, the regular claims procedure shall be applicable.
24. Liabilities Not Assumed. CARRIER SHALL NOT BE LIABLE, REGARDLESS OF THE ACTUAL OR ALLEGED NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CARRIER, ITS EMPLOYEES, CONTRACTORS, OR UTILIZED INDIVIDUALS OR BUSINESS ENTITIES, FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, REGARDLESS OF WHETHER CARRIER HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.
25. Force Majeure Events. Carrier shall not be liable for any failure to perform, including failure to timely perform, services under the Terms where such failure is wholly or partially due to an Act of God, War, Fire, Weather, Explosion, Riot, Civil Commotion, Act of Terrorism, Restriction by Government or other Authority, Strikes, Lock Outs, Failure of Suppliers, or to any cause whatsoever which is beyond the direct and exclusive ability of Carrier to control, or which could not be reasonably anticipated by Carrier.
26. Appointments. Carrier is not bound to transport a shipment by a particular appointment schedule, or in time for a particular market, but is responsible to transport a shipment with reasonable dispatch. Carrier will not be liable for late deliveries or unkept appointments unless such late delivery or unkept appointment is beyond Carrier’s duty of reasonable dispatch. In no event shall a time quotation be considered a guarantee of delivery time.
27. Impracticable Operations. Nothing in the Terms shall be construed as making it binding upon Carrier to accept freight from or make delivery to locations to which it is impracticable to operate vehicles, inclusive of performing pickup or delivery services, because of conditions of alleys or streets, because of riots or strikes, conditions typically referred to as Acts of God or Force Majeure events, inclusive of Force Majeure events as defined in that item of the Terms, local, state, or federal regulations restricting or prohibiting certain vehicle types, commodities, services, or if perceived to constitute a risk to environment, vehicle, cargo, vehicle operators, the general public, or pose a security risk. Further, at its sole discretion, Carrier reserves the right to refuse or reject requests for service, or to return accepted shipments, if it is known or perceived that any of the foregoing may exist or occur. Any applicable service guarantees are rendered null and void in the event any of the foregoing are experienced.
28. Limitation of Size and Weight. The obligation to accept articles for shipment shall be subject to capacity, type of vehicle, facilities, equipment, and to requirements of laws or ordinances limiting or regulating the transportation of property or the use of vehicles.
29. Warranties. CARRIER MAKES NO WARRANTIES, IMPLIED OR OTHER, FOR ANY TRANSPORTATION AND/OR RELATED SERVICES PROVIDED.
30. Non-Waiver. Failure by Carrier to apply or enforce the provisions of the Terms, service guides, standard operating procedures, terms and conditions, or requirements shall not be considered a waiver of its ability to enforce application of such on any past, current or future transportation services provided.
31. Packaging, Marking and Paperwork. Customer is responsible for adequate packaging to protect shipment and ensure safe transportation handling fragile goods including, but not limited to, glassware and electronics. Fragile goods must be identified and appropriately packaged or crated for shipment or any liability claim will be denied. Carrier undertakes only to use reasonable care in the handling of the shipment to ensure the provision of goods in a safe, timely, and professional manner. Customer, not Carrier, is responsible for ensuring compliance with all applicable laws and/or governmental authority relating to packing, marking, labeling, commodity identification, certifications, and all paperwork required for the safe and lawful transportation of its tendered cargo.
32. Redelivery. When a shipment is consigned to businesses, warehouses and other generally recognized receiving locations, and the Carrier vehicle is capable of making delivery and through no fault of Carrier such delivery cannot be accomplished, applicable detention charges will be assessed, with credit for any applicable free-time given, until delivery is made, subject to a maximum of ten (10) hours detention per calendar day, regardless of whether or not Carrier’s vehicle remains on the consignee premises or departs from said premises while waiting (a) to deliver on the consignees next regularly scheduled business day or (b) to deliver at a re-designated time as instructed by a consignee representative. If redelivery is to a location other than original consignee location, detention charges will accrue as provided for herein until Carrier receives instruction to deliver to a new consignee location. An additional charge based upon mileage and vehicle furnished will also be assessed for all miles from the original consignee location to the newly designated consignee location, provided however, that if redelivery is to a location within the confines of the same plant, compound or facility grounds, no additional mileage charges shall apply but in lieu thereof a stop-off charge shall be assessed.
33. Return, Rejected and Damaged Shipments. On shipments or portions thereof which are returned (refused), rejected or damaged, Carrier will return such shipments or portions thereof upon request of the shipper or owner back to the original point of origin and charges will be assessed at the mileage rates shown in carrier’s applicable terms (in effect on the date of the return shipment) with mileage calculated from delivery point to point of original pickup. Return charges will be in addition to all charges applicable for the original shipment prior to the requested return.
34. Specialized Services and/or Equipment. Upon request, Carrier may provide the following services and/or equipment. Carrier will not be responsible to provide special and/or extra equipment or perform accessorial services if not specifically requested to do so prior to the tender of the shipment. If prior arrangements for specialized services and/or equipment are not made with Carrier, Carrier reserves the right to refuse such shipment. Customer may however, at its own risk, choose to unload the shipment and wait for the required equipment to be furnished. Requests for special equipment and/or services must be noted on all shipping orders, bills of lading, and/or electronic media. The following charges shall be in addition to all other lawful transportation and related charges.
35. Storage Rights. On refused, rejected or other shipments where Carrier is unable to deliver a shipment or part of a shipment to its intended final destination, Carrier’s liability as a warehouseman shall begin immediately upon refusal or rejection and Carrier shall be entitled to recover any and all costs in any way associated with the storage of any cargo. At is sole option, Carrier may deposit the cargo in a public warehouse or storage facility under the consignee’s, and/or shipper’s name so that storage fees do not accrue against Carrier. Carrier liability for loss or damage to cargo is eliminated once cargo is deposited.
36. Shipper Bill of Lading / Airway Bills / Paperwork. Bills of Lading and/or paperwork provided by a shipper, broker, forwarder, other carrier, intermediary, or other documents not issued by Carrier, shall act solely as “receipts” for the transfer of custody of cargo only. All terms and conditions of transport shall be pursuant to Carrier’s Bill of Lading and applicable terms in effect when service is provided.
37. Subcontracting Rights. Carrier reserves the right to substitute or use alternate carriers or means of transportation and deviate from the regular route to expedite transportation. Such services shall only be used in the case that the services are in agreement with the provisions of the Terms and that Carrier uses reasonable care in the selection of such services. Carrier shall not be held liable for any loss, damage, expense, or delay to the goods serviced by third parties.
38. Confidentiality. Both Carrier and Customer agree that all information and data provided in relation to the shipments shall be kept confidential by the party receiving the information. The receiving party shall neither disclose such data to any third party without the written consent of the disclosing party nor use the data for any purposes aside from provision of the agreed upon services.
39. Governing Law. The Terms shall be governed by the laws of Indiana.
4814-4215-2047, v. 2