1. Parties
Customer is a Shipper and/or Consignee of certain goods it wishes to have transported. Fidelity Auto Shipping, Corp. dba Fidelity Transport & Logistics is registered as a transportation freight broker with the FMCSA under docket number MC-705486, with offices at 12245 SW 132nd Ct, Miami FL 33186. FTL is not acting as either a Motor Carrier, or Common Carrier, or Contract Carrier within the meaning of USC Title 49. FTL contracts with various freight carriers (“Carriers”) on behalf of Customer for the purpose of arranging transportation of Carrier’s goods in interstate and foreign commerce. FTL reserves the right, in its sole discretion, to refuse any shipment at any time. FTL and the Customer may be collectively referred to as the “Parties” or individually either may be referred to as “Party” in this Agreement.
2. Tariffs; Terms and Conditions of Carrier
In the event of a conflict in the terms of this Agreement and applicable tariff then in effect with the carrier, this Agreement shall apply to the transport and shall take precedence in the interpretation of the rights and obligations of the Parties. Customer is responsible for requesting and reviewing Tariffs in effect with a designated Carrier. FTL is not obligated to provide copies of motor carrier tariffs, or any information contained therein, to Customer.
3. Bills of Lading
The Customer is to use the FTL’s system-generated Bill of Lading (“BOL”). The Customer shall complete all the appropriate documents required for carriage, considering the services being sought, and the pickup or destination requested. In the event the Customer fails to timely and properly complete the appropriate documents, FTL may at its option, but without obligation, complete, correct or replace the documents. If a substitute form of BOL is needed to complete delivery of this shipment for any reason and FTL completes that document, the terms of the completed BOL will govern and FTL will be exonerated from all liability for undertaking such actions on behalf of the Customer including specifically liability for, in whole or in part, negligence by FTL. All Bills of Lading are non-negotiable and will have been prepared by the Customer or by FTL on behalf of the Customer in accordance with the Customer’s instructions and approved by the Customer, and shall be deemed, conclusively, to have been prepared by the Customer. The Customer is to provide the FTL BOL. FTL shall have no obligation to make any payments or honor any rate quotes in any of the following instances: (i) the unauthorized alteration or use of bill of lading, or (ii) tendering of shipments to any carrier other than that designated by FTL, or (iii) the use of any bill of lading not authorized or issued by FTL.
4. Customer Representations and Warranties to FTL
The Customer always represents and warrants that during the term of this Agreement, they will follow all applicable laws, rules, and regulations, including applicable laws relating to customs, import, and export required by country to, from, through or over which the shipment may be carried. The Customer agrees to furnish such information and complete and attach to the BOL such documents as are necessary to comply with such laws. Any individual or entity acting on behalf of the Customer in scheduling shipments or undertaking any other performance hereunder warrants and represents that he, she, they, them, or it, has the right to act on behalf of and legally bind the Customer. FTL assumes no liability for any loss or expense due to the failure of the Customer to comply with this paragraph and Customer shall defend, indemnify, and hold FTL harmless for any claims or damages resulting from violation of this paragraph, including attorney’s fees and costs incurred by FTL.
5. Payment
All freight, storage, miscellaneous, taxes, customs fees, handling, and disbursement charges are payable in US Dollars. Unless otherwise notated, all charges are prepaid. Past due invoices shall be subject to an additional charge at the rate of 1.5% per month. All funds received by FTL will be applied to the oldest (based on pick-up date) invoiced BOL outstanding. Overpayments do not accrue interest. In the event past due invoices are given to an attorney or collection agency for collection, Customer agrees to pay, in addition to the account balance, all interest payments, and collection costs including reasonable attorney’s fees. All payments for Carrier must be in the form of a cashier’s check, money order, or cash unless a prior arrangement is agreed upon. The Customer agrees that if the Carrier’s payment cannot be made by these methods, or should the Customer be unable to accept delivery for any reason, the cargo will be stored at the Customer’s expense. All storage and delivery, and/or re-delivery charges will be the responsibility of the Customer. FTL at any time may request payment in certified funds which is solely defined as: bank wire, cashier’s check, or irrevocable letter of credit which appoints FTL as the sole beneficiary; to satisfy all outstanding balances.
6. Credit Approval
Payment terms and credit limits are subject to credit approval, which shall be determined from time to time, in the sole and absolute discretion of FTL. The Customer grants FTL the right to perform such credit and background searches as FTL deems necessary. When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges due and owing, including any adjustments, on account or such Customer’s shipment. The Customer authorizes FTL to charge the Customer’s credit card or bank account for any charges related to its obligation to fulfill the Customer’s booking.
7. Determination of Charges
The Customer shall be liable for all charges payable on account of such Customer’s shipment. Such charges may include transportation, fuel and other applicable accessorial charges, any charges made by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties, handling charges, disbursements, fines, and taxes. FTL reserves the right to amend or adjust charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer; or (ii) if additional services by the carrier were required; or (iii) if the Customer authorized the carrier to perform the pickup, transportation, and/or delivery functions other than contemplated by the BOL. Any dispute by customer of any invoice issued by FTL shall be made in writing, specifically indicating the nature of the dispute, and made within seven (7) calendar days from the date of the invoice. In the event FTL does not receive timely written notice of the dispute, the charges will be conclusively presumed to be valid.
8. Lien
FTL shall have a lien on the cargo and any documents relating thereto, which shall survive delivery, for all sums due relating to any shipment(s), or any other amounts owed by Customer. FTL shall also have a lien against the Merchant on the Goods and any documents relating thereto for all sums due from the Merchant to FTL under any other contract. Customer authorizes FTL to advise third parties of asserted liens and to hold possession of any shipment against which a lien is asserted. The cargo and the documents that relate to said cargo may be sold at public or private sale without advertising or in such other manner as deemed appropriate by FTL, with such sale being at the expense of such Party that owes the amount to FTL. The net proceeds of such sale may be applied in or towards satisfaction of the indebtedness to FTL, and FTL will not be liable for any deficiencies or reduction in value received on the sale of the cargo and the Party responsible for the amount owing shall not be relieved from any liability, other than to the extent of the net proceeds realized from the sale, due to the sale of the cargo.
9. Claims and Limitations of Liability
FTL is not liable for any loss, damage, mis-delivery or non-delivery caused by: (i) the act, default or omission of a Carrier; the Customer or any other party who claims interest in the shipment; or (ii) the nature of the shipment or any defect therein; or (iii) a violation by the Customer of any provision of this Agreement, the BOL, the carrier’s tariff, including, improper or insufficient packing, securing, marking or addressing; or (iv) failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions; or (v) acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, shortages, weather conditions or mechanical delay or failure of vehicles, aircraft or other equipment; or (vi) the acts or omissions of any person other than employees of FTL; or (vii) the selection of carrier for a particular shipment. Customer acknowledges that to provide competitive rates for the services, that the parties have agreed as a material term of this Agreement that the risk of loss or damage incurred because of FTL’s alleged liability shall be limited to the fees that FTL has earned with respect to the subject shipment. Customer specifically acknowledges that FTL shall have no liability for negligent acts or omissions of its employees or subcontractors.
10. Insurance
The Customer will look solely to its own insurance, a Shipper’s policy, or insurance provided by the carrier for damage to goods in transit. Each carrier’s governing tariff will determine the standard liability cargo insurance coverage offered on any shipment, subject to any exception value. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the liability coverage otherwise provided by the tariff. The Customer acknowledges a claim for damages does not relieve it for payment under the terms of this Agreement. Timely payment is a condition precedent to the processing of a damage or insurance claim. All freight cargo claims should be submitted immediately and within three (3) calendar days to FTL for transmission to the Carrier or its insurer. FTL will attempt to assist in the resolution of freight claims but has no responsibility or liability. Where a damage claim is submitted with carrier on behalf of Customer, FTL shall have a lien on any amounts recovered to the extent of open past due invoices on the Customer’s account. FTL has optional Shippers Interest Contingent Cargo Liability Insurance (“Third-Party Insurance”) available for purchase by the Customer. FTL has no responsibility or liability with respect to the issuance or denial of Third-Party Insurance, or in the payment or denial of claims.
11. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FTL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SHIPMENTS, WAREHOUSED GOODS, ITEMS IN TRANSIT OR DELIVERIES OR WITH REGARD TO THE INFORMATION PROVIDED ON THE WEBSITE OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS WEBSITE. FTL CANNOT GUARANTEE PICK-UP AND/OR DELIVERY BY ANY SPECIFIC TIME OR DATE. IN NO EVENT, SHALL FTL BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE OR MADE KNOWN TO FTL. CUSTOMER IS REQUIRED TO PROVIDE 5 ADDITIONAL BUSINESS DAYS AFTER THE 1ST AVAILBLE PICK-UP DATE FOR RESERVATION.
12. Rates
“Less than Load” Rates (“LTL”) rates are based on the calculated density and/or freight class as determined by the National Motor Freight Classification (“NMFC”) and are weight based. All displayed transit times are estimates only and do not include day of pickup. LTL pickup dates are not guaranteed. Truckload rates (“TL”) rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are mileage based. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize freight, additional charges and transit delays may apply. Van Line rates are based on mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on transport equipment type, mileage, and weight. Vehicle Transportation rates are based on stock dimensions, weight, and running drivability unless otherwise stated in the remarks section adjacent to each line item accordingly. Vehicle(s) must be completely empty except for factory installed equipment unless otherwise specified by notation by FTL on the Agreement. All loose parts/accessories must be removed and secured. Any part of vehicle that falls off during transport is the sole responsibility of the Customer including damages caused by said part to any vehicle(s) and/or person(s) involved. Customer must surrender keys for the vehicle and/or any alarm systems to the Carrier. In the event said alarm sounds, Carrier may silence alarm by any means. Additional fees may apply for charges including, Tractor Detention, Trailer Detention, and Driver Assistance. Customer must tender this load and its cargo to carrier at the agreed upon rate, or pay a “truck ordered, not used” (“TONU” or “dry-run”) penalty at cost plus reasonable fees assessed for disbursement including an additional forty-five ($45.00) USD administrative fee. If a willing and able Carrier is assigned to the load and the Customer refuses the service regardless of dates, a rescheduling fee of eighty ($80.00) USD may be charged at the sole discretion of FTL. If any shipment includes over-dimensional freight, additional charges, and transit days may apply. All displayed, emailed, or verbally conveyed transit times are estimates only and do not include day of pickup.
13. Guaranteed Services
FTL will provide LTL Guaranteed Services for additional charge, if requested by the Customer. LTL delivery times generally do not begin to run until the day after the pickup of the shipment, except as otherwise noted by the carrier selected. Guaranteed Service transit times do not include holiday and/or “no service” days as defined by the individual carrier. The Customer is liable for all charges related to the shipment. In the event of a carrier’s failure to comply with the guaranteed service requested, the Customer shall have seven (7) days from the actual delivery date of shipment to file a written claim request with FTL. If FTL does not timely receive a claim request within seven (7) days, the service provided by the LTL carrier will be deemed to have met all guaranteed service standards and the claim request will be considered invalid and denied. In the event of the carrier’s failure to comply with the guaranteed service requested and after the carrier has agreed to liability and has paid the amount to Customer to FTL, FTL will credit the account of Customer with such amount and paid by the carrier. In no event shall FTL be liable, nor will any account be credited if the Customer does not use FTL’s BOL.
14. Attorneys’ Fees
Should any legal proceeding be commenced between the Parties concerning the terms of this Agreement, or the rights and duties of the Parties, the prevailing party in such proceeding shall be entitled, in addition to such other relief as may be granted, to costs, expenses and reasonable attorney fees.
15. Binding Nature of Agreement; Assignment
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors, and assigns, except that no party may assign, delegate or transfer any of its obligations under this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld.
16. Headings
The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.
17. Execution
This Agreement shall be binding upon receipt by FTL of Customer’s acknowledgment of its intent to be bound thereby, as evidenced by its designation of acceptance of FTL’s web page or by its execution of the BOL, or by other acknowledgment by the Customer.
18. No Other Parties to Benefit
This Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have the rights or benefits hereunder, whether as third-party beneficiaries or otherwise. The Customer agrees that this is the only Agreement between the parties governing this booking and that no other Agreement is, or will be in effect, with any other agency without prior cancellation notice to FTL. Should Customer make any other Agreement with another agency during the Agreement with FTL; FTL has the right to cancel the booking and Customer must adhere to cancellation and refund terms herein.
19. Remedies
In the event of a breach of this Agreement or any term hereof by any party, the other Party shall have all right and remedies available at law, in equity, or under the terms of this Agreement, except as otherwise limited herein.
20. Construction
This Agreement is intended to express the mutual intent of the Parties hereto, and irrespective of the identity of the Party or counsel who prepared this document, no rule of strict construction shall be applied against any Party.
21. Governing Law; Forum; Venue
This Agreement shall be construed and governed in accordance with the laws of the State of Florida and all actions, causes of actions or lawsuits brought by either party shall and must be brought in Miami-Dade County, Florida or by the United States District Court for the South District of Florida. Customer agrees that the services provided by FTL for Customer were solely in the state of Florida and all actions and/or obligations to be conducted by FTL under this Agreement would have been done or were done solely in the State of Florida. Customer agrees that any judgment obtained in violation of this provision against FTL shall be deemed null and void. Should FTL be required to enforce or defend any provision of this Agreement or be involved in any legal proceedings as Plaintiff or Defendant, Customer shall be responsible for, and shall pay all costs and attorney(s) fees incurred by FTL. Facsimile/Electronic copies of signatures to this agreement shall be treated as originals.
22. Modification and Waive and Complete Agreement
No provision of this Agreement shall be amended, waived, or modified except by an instrument in writing signed by the Parties hereto. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein.
23. Materiality
All covenants, agreements, representations, and warranties made herein shall be deemed to be material and to have been relied on by the Parties in entering into this Agreement and shall survive the acceptance of this Agreement.
24. Customer Undertakings
The Customer shall be deemed to be competent and to have reasonable knowledge of matters affecting the conduct of their business, including terms of sale, Customs, purchase, and all other matters relating thereto. The Customer shall give sufficient and executable instructions and assumes full responsibility for the accuracy of all instructions and information provided by it to FTL. The Customer warrants that it is either the Owner or the authorized agent of the Owner and that it is accepting these Conditions not only for itself but also as agent for and on behalf of the Owner. The Customer warrants that the description and particulars of any cargo furnished by or on behalf of the Customer are full and accurate. When cargo is/are accepted or dealt with upon instructions to collect freight, duties, taxes, charges, or other expenses from the consignee, or any other person, the Customer shall remain responsible for these amounts if they are not paid by such consignee, or other person immediately when due. The Customer shall indemnify FTL against all duties, taxes, payments, fines, expenses, losses, monetary damages, physical damages, and liabilities, including without limitation any storage, demurrage, port, or terminal charges, suffered, or incurred by FTL in the performance of its obligations under any contract to which the Terms and Conditions of the Agreement applies. The Customer shall warn FTL if any cargo which are the subject of any transaction to which the Terms and Conditions apply are liable to taint or affect other cargo, or are likely to harbor or encourage vermin, rodents, insects or other pests, and the Customer shall indemnify FTL against any liability, loss, damage, costs or expenses incurred by FTL as a consequence of the Customer’s failure to comply with this obligation. Any attempt by the Customer to exclude, limit, or modify FTL’s liability, warranty, or remedy available to FTL under this Agreement shall be invalid and of no force or effect unless such exclusion, limitation, or modification is in writing and signed by a corporate officer of FTL. In any event, the Customer’s liability for any claim for loss, damage, injury, or delay shall be subject to the monetary limits, liability exclusions, defense and indemnification provisions, and liability exception provisions of this Agreement. Customer’s breach of any such provisions shall be deemed a material breach of this Agreement, and FTL shall have all rights and remedies available under this Agreement, at law, or in equity. FTL will provide reasonable care in handling and transporting shipments entrusted to it. THE CUSTOMER AGREES THAT IN ANY EVENT, INCLUDING NEGLIGENCE, SHALL FTL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, PUNITIVE, LOST PROFITS, OR OTHER DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FTL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In the event of loss or damage, the Customer is required to provide pictures and values of damaged items to FTL within ten (10) days of receipt. The Customer shall retain damaged items for inspection at the discretion of FTL. The Customer agrees that suit will be filed in the state of Florida or before the United States District Court for the South District of Florida and agrees to submit itself to personal jurisdiction in said state. All customers are to call one day prior to the agreed upon pick up date and time. The Customer must allow FTL a minimum of five (5) days from the 1st available pick-up date to have the vehicle dispatched for pick-up. The Customer must also provide a five (5) day minimum notice for cancellations. No Cancellations can be accepted after the vehicle has been dispatched. The Customer must provide payment in the form of cashier’s check or money order unless credit has been extended to the Customer by FTL. Cash is only accepted at FTL’s office(s). If the Customer pays by cashier’s check or money order, the funds must clear before any services can be performed by FTL. FTL is a non-refundable service; all sales are final.
25. Mediation
If any dispute arises out of this Agreement which cannot be resolved by the Parties hereto, then such dispute shall be referred to Mediation in accordance with the rules of the American Arbitration Association. If the dispute is not resolved through mediation, then the dispute shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The prevailing Party shall be entitled to recover attorney(s) fees and costs incurred in connection with the dispute, including arbitration, mediation, and/or court, as determined by the arbitrator(s) or court.
26. Severability
If any provision of this Agreement or any part of any provision is held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remainder of this Agreement shall not be affected thereby, and shall remain in full force and effect. Such unenforceable or invalid provision or part thereof will be severed from this Agreement and the balance of the Agreement will be interpreted as if such provision or part thereof was never a part hereof.
27. Waiver
No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.
28. Confidentiality
The Parties hereto agree to keep all terms, provisions, and conditions of this Agreement confidential, except as may be required by law.
29. Time of the Essence
Time is of the essence in this Agreement.
30. 40. No Right to Set-Off
The Customer shall have no right to withhold payment of all or any portion of the charges for services, or to offset any amount against any amount due to FTL under this Agreement, or under any other agreement or transaction with FTL, for any reason whatsoever, including any alleged counterclaim, regardless of whether FTL is in breach or default in the performance of any obligation to the Customer.
31. Entire Agreement
This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, whether oral or written, express or implied, with respect to the subject matter hereof.
32. Force Majeure
In no event shall FTL be liable for any loss, damage, delay, or failure to provide services when such loss, damage, delay, or failure results from causes beyond the reasonable control of FTL, including, but not limited to, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, earthquakes, fire, flood, severe weather conditions, pandemics, accidents, epidemics, governmental actions or regulations, or other causes beyond FTL’s control.