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April 8, 2020

Standard Terms and Conditions

NOW COURIER, INC.

Updated 11/17/2020
1.                   Scope. Except as otherwise set forth herein, the provisions of these Standard Terms and Conditions (the “Terms”) apply to all services provided by Now Courier, Inc. (“Carrier”) in interstate, intrastate and/or foreign commerce between points in North America (the “Services”). For purposes of these Terms, the term “Customer” or “Shipper” means any person or entity at whose request, for whose benefit, or on whose behalf Carrier 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. By tendering goods to Carrier for Services, Customer accepts these Terms and warrants that acceptance of these Terms has been authorized by a representative of Customer as of the date the Services were first provided to Customer by Carrier (collectively the “Parties” and individually each a “Party”).
Unless and except to the extent expressly superseded, waived, or disclaimed by a written agreement signed by authorized representatives of Carrier and Customer (a “Service Contract”), including but limited to a Shipper-Carrier Agreement, the Terms shall apply to all Services provided by Carrier. Carrier and Customer may, in a Service Contract, agree to additional or amended Service terms. In the case of conflict between any of these Terms and any Service Contract, the terms of the Service Contract will govern. Customer certifies and represents to Carrier that any information inserted on the face of any shipping document, including any bill of lading, proof of delivery, waybill, cargo receipt applicable to any Services is complete and accurate. The bill of lading, waybill or other transportation document evidencing the Services shall be used only to document the service parameters of the Shipment (e.g., commodity, origin, destination, special handling requirements, etc.). The terms and conditions of any such document shall not apply to Services provided by Carrier under these Terms and these Terms shall supersede any terms and conditions contained on the shipping document.
Carrier may modify these Terms. The terms and conditions on this site on the date a shipment is tendered to Carrier shall apply to such shipment.

 

2.                   Carrier’s Operating Authority.  Carrier represents and warrants that it is duly and legally qualified to provide all transportation Services contemplated herein, including that it will hold motor carrier authority issued by the FMCSA and that its drivers will be duly licensed for the provision of the Services.  Shipper shall provide to Carrier an accurate and complete description of all goods tendered for transportation.  Shipper shall give Carrier written notice prior to requesting Services for which special permits or authorities may be required, including, but not limited to, transportation of hazardous materials, oversize or overdimension loads, etc.  In no event will Shipper tender for transportation by Carrier any product regulated as waste or otherwise intended for disposal. Shipper shall not tender to Carrier cargo moving to, from or within Mexico.

 

3.                   Bills of Lading.  Each shipment hereunder shall be evidenced by a bill of lading.  The bill of lading shall act as a receipt only and in no event shall any terms, conditions and provisions of the bill of lading, manifest or other form of receipt apply to transportation performed pursuant to this Agreement.  Carrier’s failure to issue a bill of lading shall not affect its liability hereunder.  Carrier shall notify Shipper within a reasonable timeframe of any exception made on the bill of lading or delivery receipt.
4.                   Freight Charges and Payments.
(a)     The freight charges and payment terms for the services performed hereunder shall be in accordance with the rates, charges and rules set forth in [insert].
(b)    Payment shall be made by Shipper within fifteen (15) days of the date of Carrier’s invoice, and in the event the payment is not made within fifteen (15) days, Shipper agrees that interest shall accrue daily and be payable to Carrier at the interest rate of 1.5 percent per month (18% per annum), together with any and all collection costs, including attorney fees.  In no event shall Shipper offset any amount owed to Carrier by Shipper against any Carrier invoice.
(c)     Carrier and Shipper agree that any payments made are made in payment of debts incurred in the ordinary course of business and are made according to ordinary business terms.  Shipper shall be liable for all charges arising out of Services requested by Shipper and performed by Carrier.
(d)    Shipper understands and agrees that in the event of failure to pay freight charges as due, Carrier shall be entitled to a general lien on any cargo in the possession of Carrier which is tendered or owned by Shipper regardless of whether such freight charges apply to the cargo in the possession of Carrier.  Carrier’s rights and obligations with respect to disposal of such cargo and enforcement of its lien shall be as set forth under the law of the state selected by the Parties to govern disputes under the Terms assuming a valid carrier lien under such state law regardless of whether the lien at issue qualifies for enforcement under such law.

 

5.                   Freight Loss, Damage or Delay.
(a)     Carrier shall be liable for cargo loss or damage, including cargo loss or damage caused by Carrier’s failure to exercise reasonable dispatch (in no event shall a time quotation be considered a guarantee of delivery time), in accordance with the provisions of 49 U.S.C. § 14706, which liability shall be limited to the lesser of the cost to repair or replace the goods or $1,000 per shipment (goods moving on a single bill of lading or in a single box or container) and in the event multiple shipments are on the same vehicle or in the same location, in no event greater than $50,000 per incident or accident.
(b)    In the event Shipper wishes to declare higher values of liability than are set forth in Section 6(a) with respect to any shipment(s) subject to these Terms, Shipper must make such request to Carrier in writing prior to the scheduled pick-up which request is not valid unless agreed upon in writing by an officer of Carrier.  If such request is accepted by Carrier in a signed writing, and Shipper pays additional freight charges applicable thereto, then Carrier will be liable for the full value declared by Shipper, but such liability shall in no event exceed the lesser of the full cost to repair or replace the goods, or $10,000 per shipment (goods moving on a single bill of lading or in a single box or container) and in the event multiple shipments are on the same vehicle or in the same location, in no event greater than $50,000 per incident or accident, whichever is less.
(c)     The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. Part 370. Carrier shall have no liability with respect to cargo loss or damage unless Shipper shall submit to Carrier written notice of any cargo claim, for loss, damage or delay, within sixty (60) days of the delivery date of the shipment or, if no delivery, the date delivery would have been reasonably expected.  Any proceeding related to any such cargo claim must be filed no later than two (2) years from the date of denial of all or any part of such claim, or Carrier shall be relieved of any liability with respect to any such claim.
(d)    The foregoing notwithstanding: (i) in no event will the concept of deviation apply to Services provided hereunder; and (ii) Carrier will not be liable for cargo loss, damage or delay occurring or arising in Mexico and if it is unclear whether such a claim arose in Mexico there will be a rebuttable presumption that loss, damage or delay arose in Mexico unless rebutted by Shipper by clear and convincing evidence.
(e)     In no event will Carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries.
(f)      Carrier’s sole liability, and Shipper’s sole recovery, with respect to cargo loss, damage or delay will be as set forth in this Section and in no event will Carrier be liable under any other theory of law, nor to any party other than the actual beneficial owner of cargo, or its direct assignee, with respect to any claim arising from or related to loss or damage to cargo or delay.  If Shipper is not the beneficial cargo owner, then Shipper warrants and represents that it is authorized to bind the beneficial cargo owner to this provision.
(g)    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.

 

6.                   Storage RightsIf the consignee refuses or otherwise rejects a shipment or part of a shipment or Carrier is unable to deliver a shipment or part of a shipment to its intended final destination because of fault or mistake of Shipper or the consignee, or if Shipper advises and instructs Carrier to stop movement of a shipment and to hold it in transit, Carrier’s liability thereafter immediately shall be that  as a warehouseman. Shipper will be responsible for actual storage costs and any and all other reasonable other costs in any way associated with the storage of any cargo. If Shipper gives Carrier timely disposition instructions, Carrier shall use any commercially reasonable steps to abide by such instructions. Shipper will pay Carrier’s additional transportation costs and other costs Carrier reasonably incurs in doing so. 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. 
7.                   INDEMNIFICATIONThis section shall not apply to claims for cargo loss, damage, or delay.
(a)     CARRIER SHALL INDEMNIFY, DEFEND, AND HOLD SHIPPER, its officers, directors, employees and agents, and its affiliated entities under common controlling ownership HARMLESS FROM AND AGAINST, AND PAY AND REIMBURSE, ANY AND ALL liabilitIES, claims, lossES, DAMAGES, costs, fines, penalties, INJURIES, DEMANDS, INTEREST, expenses (including COST OF DEFENSE, SETTLEMENT, AND REASONABLE attorney’s fees AND EXPENSES AND EXPERT WITNESS FEES AND EXPENSES), AND OTHER OBLIGATIONS (COLLECTIVELY, THE “CLAIMS”), BUT EXCLUDING CLAIMS REGARDING LOSS, DAMAGE OR DELAY OF CARGO which are addressed elsewhere in this Agreement, arising out of OR RELATED TO carrier’s services under these terms TO THE PRORATED EXTENT CAUSED BY: (I) the NEGLIGENCE OR intentional misconduct of carrier, its employees, or ITS agents; (II) carrier’s, its employees’, OR AGENTS’ violation of ANY FEDERAL, PROVINCIAL, STATE OR LOCAL STATUTE, REGULATION, RULE, OR OTHER LAW; OR (III) carrier’s, its employees’, or ITS agents’ FAILURE TO COMPLY WITH THESE TERMS. The foregoing obligations shall not apply to the extent such CLAIMS arise from the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless.
(b)    SHIPPER SHALL INDEMNIFY, DEFEND,  AND HOLD CARRIER, its officers, directors, employees and agents, and its affiliated entities under common controlling ownership HARMLESS FROM AN AGAINST, AND PAY AND REIMBURSE, ANY AND ALL claims arising out of OR RELATED TO Shipper’s acts or omissions TO THE PRORATED EXTENT CAUSED BY: (I) THE NEGLIGENCE or intentional misconduct of shipper, its employees, or ITS agents; (II) shipper’s, its employees’, OR AGENTS’ violation of ANY FEDERAL, PROVINCIAL, STATE OR LOCAL STATUTE, REGULATION, RULE, OR OTHER LAW; OR (III) SHIPPER’S, its employees’, or ITS agents’ FAILURE TO comply with these terms. The foregoing obligations shall not apply to the extent such CLAIMS arise from the negligence or other wrongful conduct of the party to be defended, indemnified or held harmless.
(c)     In the event that such claims are caused by the joint OR concurrent negligence or other fault of the Parties, or the Parties and any third party(ies), the indemnity obligations for such claims shall be borne by each Party in proportion to its degree of negligence or other fault.
(d)    ADDITIONALLY, IF SHIPPER USES ANY THIRD-PARTY ENTITY (A “THIRD-PARTY PAYOR”) TO COMPENSATE or otherwise PAY CARRIER TRANSPORTATION CHARGES EARNED PURSUANT TO THIS AGREEMENT, SHIPPER AGREES THAT IT SHALL INDEMNIFY, DEFEND AND HOLD CARRIER AND ITS OFFICERS, DIRECTORS AND EMPLOYEES HARMLESS FROM, AND SHALL PAY AND REIMBURSE, ANY AND ALL Claims ARISING IN ANY WAY FROM SHIPPER’S USE OF A THIRD-PARTY PAYOR AND/OR CARRIER’S RECEIPT OF PAYMENTS FROM A THIRD-PARTY PAYOR ON SHIPPER’S BEHALF, INCLUDING BUT NOT LIMITED TO, CLAIMS TO THE SUMS PAID BY THE THIRD-PARTY PAYOR ASSERTED IN A THIRD-PARTY PAYOR’S BANKRUPTCY, OR OTHERWISE.
(e)     IF EITHER PARTY SEEKS INDEMNIFICATION PURSUANT TO ANY OF THE PROVISIONS OF THIS AGREEMENT (THE “INDEMNIFIED PARTY”) FROM THE OTHER PARTY (THE “INDEMNIFYING PARTY”), THE INDEMNIFIED PARTY SHALL NOTIFY THE INDEMNIFYING PARTY AS PROMPTLY AS PRACTICABLE AND GIVE THE INDEMNIFYING PARTY AN OPPORTUNITY TO DEFEND THE CLAIM.  THE INDEMNIFIED PARTY WILL EXTEND REASONABLE COOPERATION IN CONNECTION WITH SUCH DEFENSE.  IF THE INDEMNIFYING PARTY FAILS TO ASSUME THE DEFENSE OF THE CLAIM WITHIN A REASONABLE TIME, THE INDEMNIFIED PARTY MAY ASSUME THE DEFENSE THEREOF, AND THE INDEMNIFYING PARTY SHALL REPAY THE INDEMNIFIED PARTY FOR ALL EXPENSES INCURRED IN CONNECTION WITH SUCH DEFENSE (INCLUDING REASONABLE ATTORNEY FEES, SETTLEMENT PAYMENTS AND PAYMENTS OF JUDGMENTS) UNTIL THE INDEMNIFYING PARTY ASSUMES SUCH DEFENSE.  THE FOREGOING INDEMNITY OBLIGATIONS WILL EXTEND ONLY TO THE LOSSES ACTUALLY SUFFERED BY THE INDEMNIFIED PARTY, REDUCED BY ANY OFFSETTING ASSETS OR SERVICES RECEIVED FROM ANY THIRD PARTY, INCLUDING ANY INSURER.  THE INDEMNIFYING PARTY WILL BE SUBROGATED TO ALL RIGHTS OF THE INDEMNIFIED PARTY AGAINST ANY THIRD PARTY WITH RESPECT TO ANY CLAIM FOR WHICH INDEMNITY WAS PAID.
(f)      Each Party hereby expressly waives any provision of governing law related to workers’ compensation to the extent such waiver is necessary to effectuate such Party’s obligations under this section (including each subsection hereof) with respect to claims arising from or related to injury of such Party’s employees.
8.                   Compliance with Law.  Both Parties shall comply with all applicable federal, state or provincial laws, rules, or regulations applicable to their operations.
9.                   Hazardous Materials.  Shipper shall comply with all laws, rules, regulations and ordinances regarding tender of hazardous materials, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 50101 et seq., as well as any other hazardous or non-hazardous waste (“Hazardous Material”), including any and all applicable notices and/or manifests related to such Hazardous Material.  Shipper further agrees that, prior to any shipment, it shall provide Carrier with written notice of the tender of Hazardous Material, including a current copy of the Material Safety Data Sheet for the Hazardous Materials to be tendered to Carrier for transportation.  Carrier shall comply with any and all applicable laws, rules and regulations applicable to its transportation of Hazardous Materials, including, but not limited to, providing property licensed and trained drivers.  Shipper shall indemnify, defend and hold harmless Carrier and its officers, employees, agents and insurers, against, and shall pay and reimburse, all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out or related to the exposure to a release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or other remedial action pertaining to the Hazardous Material under federal or state law, if: (i) Shipper fails to provide the notice required by this provision prior to tendering the Hazardous Material to Carrier; (ii) the contact, exposure or release resulted from the improper packaging, loading or other acts or omissions of the Shipper, its employees or agents; or (iii) the contact, exposure or release occurred subsequent to the transport of the Hazardous Material by Carrier.
10.                Shipments Containing Food.  Any food not requiring temperature control during transportation will be packaged prior to tender to the Carrier in such a manner as to ensure safe and sanitary handling during transportation without the need for any specialized handling procedures. With respect to food for which controlled temperature services have been requested in a Food Consignment Notice (which, for purposes of this Agreement, means a written notice to Carrier communicated in writing or via electronic means at the time of Shipper’s initial request for services with respect to the specific consignment identified in the Food Consignment Notice which includes the required temperature range stated in degrees Fahrenheit), the following will apply: (i) the consignor of the consignment shall ensure that commodities are within appropriate temperature ranges at the time of physical tender to Carrier; (ii) the consignor and consignee shall be solely responsible for taking, and maintaining records of, temperature readings at origin and destination respectively and no temperature recordings will be made while the commodities are in-transit; and (iii) the consignor shall be solely responsible for ensuring the transporting conveyance is set to appropriate temperature ranges prior to initiation of loading.  Shipper acknowledges that no additional handling or specialized services are required to ensure safety of food, and no additional handling or specialized services shall be provided.  Any failure or alleged failure to comply with handling procedures established herein or otherwise applicable to any shipment, including, but not limited to, delivery without the original trailer seal intact, shall not, in and of itself, result in any presumption that a consignment is unsafe, contaminated, adulterated or otherwise unfit for its intended purpose.
11.                Packaging, Marking and Paperwork. Shipper, 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.
12.                Use of Third Parties.  Carrier is authorized by FMCSA to operate as a broker and a freight forwarder.  In order to meet Shipper’s transportation needs, Carrier may arrange for brokerage or freight forwarding service to be provided to Shipper, which services shall be subject to the provisions of this Section.  When Carrier arranges with a third party to provide or arrange services hereunder, Carrier shall be deemed to be acting as a broker or freight forwarder and not a for-hire motor carrier.  In any such event, the provisions of these Terms notwithstanding, Carrier’s obligation to Shipper shall be limited to using reasonable efforts to select motor carriers duly authorized in accordance with applicable law, rule or regulation to provide the requested motor carrier services.  Carrier will not be responsible for the acts or omissions of any third party retained by Carrier except that Carrier will remain liable for cargo loss and damage claims with respect to any shipments brokered or forwarded by Carrier pursuant to these Terms as if Carrier had provided the underlying motor carrier services directly under its own authority.
13.                Relationship of the Parties.  The Parties intend to create a relationship of independent contractors and in no event will the Parties be deemed to be involved in an employment relationship, joint venture, partnership, or agent-principal relationship. Nothing in these Terms shall be construed as obligating Carrier to accept shipments tendered by Shipper.
14.                Confidentiality.  The Parties agree that all information and data provided in relation to the Services 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 other than in furtherance of the Services.
15.                Severability.  In the event any portion of the Terms is deemed unenforceable for any reason, such portion shall be severable and that the remaining provisions of these Terms shall continue in full force and effect.
16.                Waiver.  As allowed by 49 U.S.C. § 14101, the Parties expressly waive any and all rights and remedies under Part B of Subtitle IV to Title 49 of the U.S. Code to the extent that such rights and remedies conflict with these Terms.   Failure by either Party to insist upon the other Party’s performance under these Terms or to exercise any right or privilege herein shall not be a waiver of any of the rights or privileges provided for in this Agreement.  IN NO EVENT WILL CARRIER BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SALES, OR DAMAGES DUE TO BUSINESS INTERRUPTION, REGARDLESS OF WHETHER CARRIER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
17.                Notice. All notices or other communications required or permitted under these Terms to be sent to Carrier must be sent to sales@nowcourier.com or customercare@nowcourier.com.
18.                Dispute Resolution. These Terms shall be deemed to have been drawn in accordance with the statutes and laws of the state of Indiana and in the event of any disagreement or dispute, the laws of  Indiana shall apply and suit must be brought in exclusively in the state or federal courts serving Marion County, Indiana as each Party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving these Terms or Services and waive any and all defenses to jurisdiction of or venue in such courts.
19.                Force Majeure.  In the event performance by one Party is affected or prohibited by any cause beyond the reasonable control of such Party, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, local or national disruptions to transportation networks or operations, material equipment repairs, fuel shortages, governmental regulations, governmental request or requisition for national defense, or requests of governmental officials, and provided that the applicable cause is not attributable to the acts or omissions of such Party, and such Party is taking reasonable measures to remove or mitigate the effects of the applicable cause, then the running of all periods of time and the performance of all obligations required herein shall, with the exception of payment of invoices, be suspended during the continuance of such interruption, and such Party shall promptly notify the other Party of such interruption. Such period of suspension shall not in any way invalidate these Terms, but on resumption of operations, any affected performance by such Party shall be resumed.  No liability shall be incurred by either Party for damages resulting from such suspensions.
20.                Captions.  The captions in these Terms are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of these Terms or any of the provisions thereof.
21.                Election of Remedies. The pursuit of any single remedy by a Party shall not be deemed an election of remedies or otherwise limit or preclude such Part’s right to pursue any other remedy or remedies.
22.                Complete Agreement.  Except as described in Section 1, these Terms constitute the entire agreement of the Parties with reference to the subject matters herein and supersede all other oral or written communications, representations, undertakings and agreements of the parties relating thereto.
 

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